shouting loudly

I’m in the middle of a 2-week vacation in Colorado, but I guess I have to say something about Viacom’s suit against YouTube–or, at least, I have to link to some people who say something.

At News.com, Declan McCullagh says the case depends on how you view 17 USC § 512, the “notice-and-takedown” provision of the DMCA. (Of course, that really is the crux of the matter.)

A Reuters article explains that a Viacom victory would substantially alter the internet business model–for the worse, unless you’re an old-media copyright holder.

Finally, Harry McCracken is implicit at best in a PCWorld blog post, but he suggests Viacom has an ulterior motive: their recent agreement to distribute their content on Joost.

While this is not part of the legal question, I think this suit is a bad business decision for Viacom. Blog and email circulation of links to, e.g., Daily Show clips only add to the show’s popularity. Some leakage is good for copyright holders. How many people have burned a CD from a friend and become huge fans of a newly discovered band? (I mean, not ME! But, uh, it sure happens.)

If fans getting content for free is so bad for copyright holders, why is payola still a problem?

ANOTHER LINK: BusinessWeek argues that the suit will not kill YouTube. Catherine Holahan concludes the more likely outcome, tragically, is chilled innovation. She provides a couple good quotes from the EFF’s Fred von Lohmann.

UPDATE 2: Here’s a pro-Viacom commentary on CNet by Executive Editor Chris Cooper. To be fair, Cooper is right to describe the suit as more of a bargaining chip than an attempt to shut down YouTube ala MPAA v. Napster. If this is the sole intent, he is right and I am wrong (above): the suit is probably a good business decision.

Yet Cooper’s commentary is thin on reasoning when he dismisses the promotional value of YouTube clips. His core argument is an appeal to Viacom’s authority as a presumably rational self actor. “I can only suppose that the memo explaining the windfall the corporation can expect from ignoring copyright infringement got stuck in the mail room.”

Cooper even acknowledges a CBS poll finding viewers who download videos online are more likely to discover new shows and watch them on TV, but he dismisses its applicability to the YouTube debate. CBS was seeking a way to capitalize on web downloads, so he concludes that YouTube’s promotional value doesn’t count. Why not? The poll found that web downloads lead to more TV viewing because downloads are an effective promotional vehicle.

Viacom should jump at any opportunity to expand its offline audiences, because monetizing internet video is a far sketchier proposition. YouTube brought in $15m last year. Viacom? $11.5 BILLION. If you made almost 1,000 times as much in the old media market as the most successful version of your nearest new media competition, where would you invest? The odds that I’ll pay even $5/month to watch one network’s TV shows on my iBook are slim to none. The odds that a YouTube clip from a show I haven’t seen yet will send me to my TV listings in search of more? Pretty high, according to CBS.

Essentially, Cooper contends YouTube reposts can’t be good for big media because big media says so. This song is familiar. From the player piano to the MP3 player, nearly every new media tool is painted as the death of old media, and these dire predictions keep turning out dead wrong. Jack Valenti said the VCR would be the movie industry’s Boston Strangler, but home video is now more profitable for studios than theater tickets. There’s obvious precedent for media execs substantially overestimating the perils of non-control and underestimating the upside. Again, if free media content is such a problem, why are labels still paying radio DJs to play their music? (Songwriters–not labels–get royalties from radio airplay.)

Further, as a stylistic critique, Cooper’s article is filled with ad hominem attacks. Here are a few choice examples:

The only folks spoiling for a war are certain knuckleheads in the peanut section.

Viacom’s critics are predictably snorting mad today.

… nitwits who view cyber rip-offs as another expression of viral marketing.

Is [Viacom's demand for "proper control" over its "property"] too radical a notion for most of us to accept? Not if you have half a brain.

In all due respect, sir, you still have not persuaded we half-brained, snorting mad nitwits in the peanut gallery.