YouTube is goin' down

[Josh] There once was an Internet company that made its business, mostly, from allowing people to get whatever content they wanted, copyrighted or not. "It's not up to us to monitor the content our users share," they said. "If you tell us of an infringing user, we'll take him or her off the system."

That company was Napster and, not surprisingly, it got sued. And it lost, decisively. The result was that it quickly figured out how to remove all that copyrighted content, leaving . . . well a lot of stuff that wasn't very interesting to people. The users left, and the company went under. Bertlesmann, which invested in it, found itself under suit from other copyright holders. The only thing of value was the name, which they sold to the legitimate music service that now uses it.

Now I tell this fable because now, more than five years later, YouTube is in an analogous situation. YouTube is romancing media companies, just as Napster was. YouTube will take down copyrighted content if you complain, just as Napster would. And YouTube's model is based on masses of material available without regard for copyright status, just as Napster's was.

So, mark my words, YouTube will get sued. And it will lose. The tools it is talking about, that identify and remove copyrighted content, will have to be rushed into practice. And when nearly every clip that has copyrighted content -- music in the background, video of Bart Simpson, photos stolen from movie posters -- is gone, YouTube's going to be a lot less interesting.

You may tell me that companies like Warner Music are happy to work with YouTube, just as Bertelsmann was willing to work with Napster. But for every company that wants to do a Warner-type deal, there will be others like Universal that won't stand for it. It only takes one unhappy media company -- Disney, Sony, CBS, or News Corp. for example -- to force the company's hand. And the cases on this point, from Napster to Grokster at the Supreme Court, are clear.

Please, please, don't harangue me about whether this is morally right. That's not what I'm talking about. It's not about what's right, it's about what's going to happen. YouTube is goin' down. Don't you think?

Comments welcome.

Technorati tags: Bernoff, Forrester, YouTube

Comments

[Trygve Throntveit]

The difference is that when you remove all the copyrighted stuff on YouTube, what's left is STILL VERY INTERESTING. Look at the Most Viewed page on YouTube. Take out the copyrighted stuff (clips from TV) and you're still left with 90% of the content.

The most popular clips on YouTube are home-made, they are not copyrighted clips.

Napster was different. Once you took out the copyrighted songs, there was nothing left.

[Mathew Ingram]

Just wondering how you can be so sure that it's "what's going to happen," Josh -- is it not possible that the networks have seen what happened with music and how they lost control, and might decide to try a different tack that actually takes advantage of the market share YouTube has gained?

[Camille]

I think you're right.
That's sad but I'm sure it will end like that. If you search well on YouTube you can find a lot of episodes of well knows tv shows like Grey's Anatomy and they are full. When the channels will notice that, they are going to be extremly angry.
That's sad but unfortunatly everything on the internet that's cool and nice for people end by being sued.

[Theodore]

I agree with the first comment. You can not compare YouTube with Napster. It is not the same product. Videos are the future, therefore there will be a demand for a service like YouTube. Probably 90% of the clips are amature, non copyrighted, so it will still have a huge appeal, but probably less than before. YouTube are here to stay!
/MarknadsAnalytikerna.com

[Chris]

There is a significant difference between Napster and YouTube and it involves one of the major doctrines of copyright law: Fair Use! Although much of what's on YouTube contains copyrighted material, it also alters that material in ways that could be determined to be fair uses. It will be difficult for YouTube, and certainly anyone at Forrester, to make generalized statments about infringement because of these fair use arguments.

[Gary Berzner]

It's an interesting and valid point that the most popular videos on YouTube are home made and uploaded by the copyright owner, giving YouTube substantial rights to its most popular content pursuant to the YouTube Terms of Service. In my opinion, as long as YouTube stays in compliance with the DMCA and does not promote its service for the purpose of copyright infringement, or take any other actions that make YouTube more than just a consumer tool, it should be protected by the DMCA against claims of copyright infringement and by the precedent set in the Sony Betamax case. In other words, it will be clearly distinguishible from Napster, which was not in compliance with the DMCA, and Grokster, which actively promoted its service for the purpose of copyright infringment.

[Josh Bernoff]

Thanks for all your comments. Unfortunately there is a lot of softheaded thinking here.

Much of the YouTube content contains music. There is no fair use for music in this context. And the content companies will argue that it's not their job to police fair use of content, it's YouTube's.

Revver told me, in an interview, that when it started checking for inappropriate use of copyrighted material, it found that 80% of its submissions included copyright violations. That company has now put controls in place and the users have learned the rules -- and far less content is in violation. Revver made the transition. Media companies will force YouTube to make the same transition. The question is -- are they ready? And will they lose most of their traffic when they do?

[Diego Rosciano]

¿1500millons? LOL i dont think so...

[Mr Angry]

So far as softheaded thinking goes... The number of differences between Napster and YT are pretty staggering.

Napster didn't make deals with media companies, they went around mouthing off that they were going to destroy media companies.

Napster had no business without copyrighted material, YT still has substantial business without copyrighted material - check the most *subscribed* channels. None of them would have to make significant changes to have zero infringement.

You argue that it only takes one company to be unhappy to sink YT. Wrong. It only takes one company to actively promote using their music in videos for other companies to join in or be irrelevant.

Personally, I wish *all* the coprighted material on YT was gone because it's rubbish. But enough companies are starting to see the promotional value of YT to make sure it's here to stay. YT are completly protected by "safe harbour" provisions so long as they respond to takedown notices - THAT has been upheld in court - this was not the case that Napster and Grokster lost. It's the case that ISPs won.

There are a lot of reasons YT might fail but none of the ones you cited are it.

[Bjørn]

You're probably right in assuming that "YouTube's going to be a lot less interesting" if all copyrighted content is removed -- *but*, if you look at the most popular movies there today, they're mostly personal videos uploaded by the creator.

So I think YouTube can survive just fine without clips from the big media.

Also, how much from a show can you display on the web under fair use in the USA? Nothing at all, or is there some slack?

[Jet]

And what about Myspace.com, bought recently by Murdock's News Corp? What is the difference between Utube and Myspace regarding terms of use and copyrighted content? Did they have some Murdock cops specially trained to avoid CBS or Disney lawyers? (See their terms, section 6.2: http://www.myspace.com/Modules/Common/Pages/TermsConditions.aspx).

Please explain me why your post does not even adress this fact. Will Murdock turn as a new-age Shawn Fanning after taking the risk of pulling $580 million in buying Myspace?

[RAM]

am not sure if this will definitely happen. With more users willing to create and post their own online videos, the share of copyrighted material is only likely to come down. As Friedman says-democratization of information technology which has resulted in digitization making all of us broadcasters.

[brian george]

Josh,

if you're not a lawyer, and you don't seem to be, don't you lack confidence in making what is essentially a legal conclusion?

Read Tim Wu's article in Slate --- this is all about sec. 512 -- and as another user said, if YouTube does take down the CR content, its still a viable company.