Google YouTube Wrap-up: Legal and Competitive Fallout from the Deal

By Steve Bryant  |  Posted 2006-10-11 Print this article Print

I feel like I'm stuck in Being John Malcovich. Except instead of saying my name over and over, I keep repeating "GooTube GooTube GooTube."

Safe Harbor
Over on John Battelle's blog, The EFF's Fred von Lohmann says YouTube is on relatively firm legal ground. According to Fred, YouTube works hard to stay within the safe harbor stipulations of the Digital Millenium Copyright Act (DMCA). Since YouTube is currently involved in one lawsuit, Google is essentially buying better control over the outcome.

Threat of Lawsuits
In this Wall Street Journal article, Harvard law professor John Palfrey says there's "no doubt that Google will see lawsuits coming their way as a result of buying YouTube," although again, the YouTube user's right to fair use and the DMCA's safe harbor provisions afford protection. Economist Stan Liebowitz says the real risk isn't small lawsuits but "whether a portion of the copyright industry will undertake a major suit." Liebowitz also notes that Google's purchase of YouTube ascribes a market price to the value of YouTube's videos, copyrighted and otherwise.

Is Fair Use judged by level of exposure?
Liebowitz says fair use means one thing when the transformative work doesn't get wide release. But some videos on YouTube receive hundreds of thousands of views. Does over-exposure of a fair use sample of copyrighted content mean that content is no longer protected under fair use? (i.e., if the video is viewed 100 times, it's still fair use. If it's viewed 1,000 times, it's not?). I don't know the answer to that question, but that could be one question the courts undertake should YouTube find itself on the wrong end of a few lawsuits. (Any lawyers out there, e-mail me so we can chat about this.)

Who should police YouTube's content?
Google or the copyright owners themselves? Liebowitz and Palfrey argue back and forth on this point, but I think the point may be somewhat moot since GooTube is building copyright detection systems. That would suggest they're already taking an active role and will continue to police the site more regularly for fear of upsetting their content partners.

What Effect has the purchase had on Yahoo?
Saul Hansell at The New York Times (who I met briefly at the Gotham Googleplex last week) writes that Yahoo is "late and slow, both in its own business and in negotiations with other companies." Shares down 38% this year, Yahoo 360 in the crapper, failed to win YouTube deal, new advertising platform still not ready for primetime, competing in multiple markets. And there's this woulda coulda shoulda nugget: "Current and former Yahoo employees say the company has been bogged down by bureaucracy and internal squabbling. For example, the media group, which handles video programming, and the search group, which has a system to find videos on the Web, both wanted to offer a service for users to upload their own video clips. The search group won, but the delay allowed YouTube, a start-up, to dominate the market."

MySpace Still Thinking About Cutting Off Links to YouTube?
The WSJ reports that Google execs are traveling to LA to meet with News Corp this week. "One possibility is to expand Google's recently signed ad deal with social-networking site MySpace to include video advertising on the Web." After the GooTube deal went down, News Corp executives considered cutting links from MySpace to YouTube.

I don't see anybody taking drastic measures immediately. Google, News Corp, Yahoo, Viacom and all the other big players are as much partners as they are competitors. Any rash actions now, legal or otherwise, means risking business opportunities. |

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