How do you solve a problem like YouTube?

[There’s an edited version of this on the BBC News website]

Mark Cuban doesn’t think much of video-sharing site YouTube or its prospects for future growth. Speaking to a group of advertisers in New York Cuban, who might be thought to have a vested interest as the founder of a high-definition TV channel, argued that YouTube will eventually be ‘sued into oblivion’ because of copyright breaches.

Cuban may have his own reasons for wanting to dismiss YouTube, but he is certainly right when he points to the large number of videos available on YouTube which would seem to violate someone’s rights. If you want to see snippets from US TV shows not broadcast here, music videos or even concert footage then it’s the place to go.

Cuban isn’t the only one who sees trouble coming for the service. Doug Morris, CEO of Universal Music Group, has said that YouTube and social networking site MySpace, ‘owe us millions of dollars’, and it seems likely that he has plans to collect.  Other content providers are no doubt thinking the same way.

YouTube itself says it wants to work with copyright holders. It recently signed a deal with Warner Music which will put Warner videos on the site legitimately and is also in discussion with other content owners.

As part of the deal with Warner YouTube is developing a system that will make it easier for rights holders to identify material that has been uploaded to the site without permission and have it removed.

This involves a technology called ‘audio fingerprinting’, analysing the soundtrack to every video and checking it against a library of known content to see if it’s in copyright.

It’s the same technology used  by Shazam, which lets you call a premium rate number and play a song over your mobile, texting you its title.

The problem with this approach is that it seems to be giving the record industry – and presumably the movie industry too once we have ‘video fingerprinting’ -everything they are asking for from YouTube.

Anyone who takes a song and lip-syncs to it, or does a crazy dance, will find their home video summarily removed from the site, whether or not what they were doing with it might be considered a parody or fair use.

And once the mechanisms of control are in place, where will they stop? YouTube will end up like the TiVo video recorder, which started out as a simple alternative to the VCR but has become more and more limited as the rights holders demand more restrictions on copying, saving or even fast-forwarding through ads.

Giving the content cartel everything they want may well keep the lawyers away, but it may also destroy the value of the site.  It legitimises corporate blackmail and may even help to persuade legislators that the copyright system isn’t broken enough to need fixing, letting them ignore other approaches.

One such approach is Creative Commons, a global project which tries to make copyright and licensing a lot simpler and clearer so that sharing and creative reuse are encouraged.
Counterpoint, the British Council’s think tank on cultural relations, has just published a book about it which tries to encourage publishers and others to take a more flexible approach to copyright.

The book was written by a friend of mine, Rosemary Bechler, so I can’t claim to be objective about its content, but whether or not Creative Commons really is a long-term solution matters less than that it offers an alternative to the hardline assertion of rights which we see from the record industry today.

Rosemary’s book will be read by lots of people, because the British Council is good at promoting things, but it’s unlikely to change people’s minds. Those who already agree with have their views reinforced and will feel slightly smug at having got it right.  Those who disagree, like Adam Singer from the UK’s music collection societies who once described Creative Commons as ‘chainsaw juggling for under fives’ will, even if they bother reading to the end, dismiss it as another case of special pleading from intellectuals who don’t understand the reality of the record or film industry.

The same fate awaits Richard Dawkins new book about religion, The God Delusion, which I have just finished reading. As a committed atheist myself I greatly enjoyed it and found much to support me in my position, but I know that no-one who has faith in a supernatural deity will be converted by it.

Real change requires something more than fine-tuned rhetoric and worthy publications. It requires a change of practice, a shift in the default assumptions that people make when they unthinkingly approach an issue.

At the moment the copyright holders have the popular will on their side because of the general elision of ‘property’ with ‘intellectual property’ that means even Cliff Richard gets a sympathetic ear when he argues that his warblings in a studio fifty years ago should belong to him forever. Few people stand up and point out that he only got any royalties at all because the law offered him a deal – a brief period of exclusivity in return for our eventual right to use your work as we see fit – which he was happy enough to accept at the time.

The real danger is that YouTube’s attempts to divert the legal barrage heading its way from the record studios will simply reinforce the current perception of copyright as a strongly-enforceable property right instead of seeing it as a deal between society and creative artists, one which should benefit both sides.

Given that they are spending millions of dollars each a month on bandwidth to give us all those videos for free, it’s a shame they didn’t decide to use a few days worth of network money to pay some lawyers to go and argue that lip-syncing to a Justin Timberlake song and posting the result is a form of fair use and therefore completely legitimate, and that posting segments of a news story on YouTube is no different from the accepted practice in newspapers of using screenshots from the TV to illustrate stories – without asking for permission or paying for the privilege.
YouTube founders Chad Hurley and Steve Chen are clearly thinking of their own payday, and don’t want anything to stand in the way of the nice cheque from Google, Yahoo!, News Corp or Microsoft.

But by compromising so completely with the content cartel they are passing up a chance to shape the common understanding of copyright in the digital age, and that’s a shame.

Bill’s Links

Mark Cuban on YouTube here and here

YouTube’s new plans:

BBC Newsnight blog:

Counterpoint:

3 Replies to “How do you solve a problem like YouTube?”

  1. Yes it’s unfortunate that no one seems to have the moral will to explain the ‘fair use’ contract that artists (or more importantly these days, copyright holders) share with users. More often we are seeing users having to prove fair use, whereas in the past it was the copyright holder proving misuse. This has been reinforced by the implementation of criminal law replacing civil law. Where in the past a civil court would decide what constituted ‘fair use’, now the user has to take the risk that they may fall foul of a criminal prosecution. This has the effect of culling all potential ‘fair use’ of any contemporary copyrighted material. Unfortunately Bill we have to argue with intellect otherwise how can we change the minds that wish to remain in the status quo? But I do agree that a significant shift in perception needs to happen. The distinction between property that is concrete and real, i.e. a house, as opposed to an idea needs to be made much clearer.

  2. I must admit that I am an avid YouTuber although the stuff I tend to access is stuff that I can’t seem to get anywhere else. For example Yellow Magic Orchestra vids and some Peter Cook stuff.

  3. Aargh! the frustrations of a non-wiki blog… there are several tiny grammatical/punctuation issues.

    But most horrid of all, a wonderful word for me to look up – elision – which is apparently used incorrectly!

    Fortunately these niggling bits do not detract from your basic argument, that YouTube is compromising itself out of relevance when faced with the copyright-content cartel.

    The concept of copyright is completely economic. The purpose is to create an artificial scarcity of a product which is intrinsically valueless.

    While I regret the necessity, I support circumventing laws which are fundamentally harmful to most people and which are clearly in violation of their original mandate. And clearly I’m not the only person. Such widespread disregard for the laws is not beneficial, but unless the copyright content cartel accepts that a growing percentage of their audience will actively oppose them, steadily increasing their costs while reducing their revenues, it is a quiet rebellion which will steadily grow and spread to other legal mandates.

    In some respects it’s rather like the Internet itself. The USA has steadfastly refused to give up any control over it, and apparently is now tracking all traffic on it. Yet, when faced resolutely by the EU who are engaged in forming an alternative system which can work in parallel, the USA has finally budged. I hope the EU will maintain its resolution in the face of this false victory, just as I hope the copyright content consumers will continue to build viable alternative content, and reward performers for their performances rather than their time in studios.

    Amgine

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