In the words of Guy Forsyth, “Americans are freedom loving people and nothing says freedom like getting away with it.”
The fact that is often lost in faculty dining room debate is that YouTube is a copyright infringement machine. This is a fact that is not lost on copyright owners whose works are infringed.
Now understand–it is popular to mock copyright owners as being greedy when they simply want to have their rights respected. Such mockery is a holdover from the Metallica lawsuits (“Fire, good, Napster bad”), and has become part and parcel of the tactics of the “hate copyright first” crowd. I’m not talking about rock stars getting richer, although that may happen as a result of respecting copyrights. But just because you think Lars wears his pants too tight doesn’t mean you throw out the rights of an untold number of artists in a rush to have the joy of making fun of a famous person. I still think that the Metallica lawsuit was one of the dumbest enterprises an artist ever got talked into, right up there with “Captain Copyright”.
I am not suggesting that all technology companies should be sued all the time. What I am suggesting is that the way that YouTube handled the situation requires a copyright owner to sue in order to get YouTube’s attention. Without being critical of how YouTube got to its deals with major label copyright owners, YouTube/Google could quite easily now make terms available to all other copyright owners, including songwriters and music publishers. In fact, if one truly intended to “do no evil” and if one really didn’t want to take an overly legalistic approach to rights–maybe it’s better to offer terms voluntarily than saying “make me”. Unless you’re a brat who wants to hoarde all the candy.
Some have tried to distinquish YouTube from other cases because they have deals with some rightsholders. I would suggest that it is quite true that this is a different case than Napster, Kazaa, Pirate Bay, Morpheus–this is a direct infringement case. YouTube converts files uploaded in a variety of video formats into flash. YouTube makes the copy themselves. I’m sure they would argue that the user is making the copy with the tools that YouTube provides, and yes, maybe the dog really did eat my homework. I think that is likely to be found to be a distinction with a difference only measured in a lack of spine and willngness to be held accountable for one’s own actions on the part of YouTube and its employees. While Google’s executives may be morons, they surely are not so stupid as to allow the deal to close without witholding a substantial sum from the purchase price for indemnity claims of all stripes.
Like all these cases–they knew exactly what they were doing. They were trying to get away with it. They were trying to get something for nothing.
The YouTube stockholders have pocketed more money than any artist will probably make in their lifetimes, and they did it on the backs of artists everywhere, both professional and shower singers.
The YouTube founders refer to themselves as the “Two Kings”. Time will tell. My bet is that they will rue the day they ever had the shameless audacity to gloat so publicly about theft so large.
Or as John Lennon once wrote–how can you sleep at night?
If there ever was a time to revisit the “safe harbor” provisions of the DMCA, this is it.