This Week in Northern California, March 2007

Hold on there, Viacom, before you start counting those Google bucks. YouTube thinks you're not exactly operating in good faith:

In their opening briefs in the Viacom vs. YouTube lawsuit (which have been made public today), Viacom and plaintiffs claim that YouTube doesn't do enough to keep their copyrighted material off the site. We ask the judge to rule that the safe harbors in the Digital Millennium Copyright Act (the "DMCA") protect YouTube from the plaintiffs' claims. Congress enacted the DMCA to benefit the public by permitting open platforms like YouTube to flourish on the Web. It gives online services protection from copyright liability if they remove unauthorized content once they’re on notice of its existence on the site.[..]

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Ooh, now that's a little incriminating. We've had our own run-ins with Viacom and almost every one of our video crew have battled against YouTube as well, so really we have no dog in this fight. Fair Use is an issue that is ill-defined in the brave new world of blogs and user-created videos. It is worth noting that Viacom also tried to purchase YouTube less than a year before suing them. And in fairness, at least one YouTube executive appeared to have a fairly cavalier attitude towards copyrights:

(A)n e-mail exchange among YouTube co-founders Chad Hurley, Steve Chen and Jawed Karim showed there were in-house copyright abuses.

"Jawed, please stop putting stolen videos on the site," Chen wrote in the July 19, 2005, e-mail. "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it."

In a statement after the documents were unsealed, YouTube said Chen's e-mail was referring to some aviation videos that had been making the rounds on the Web. "The exchange has nothing to do with supposed piracy of media content," YouTube said.

This could affect the blogosphere as we know it, most specifically news aggregators:

A copyright and trademark infringement lawsuit filed last month against The New York Times Co., owner of The Boston Globe and its Boston.com website, is being watched closely by news organizations, Internet researchers, independent bloggers, and companies that aggregate news online by linking to a variety of news sites.

At the heart of the complaint, lodged by GateHouse Media Inc., which publishes 125 community newspapers in Massachusetts, is the question of whether Internet news providers will be able to continue the practice of posting headlines and lead sentences from stories they link to on other sites.The case has been scheduled for trial in US District Court in Boston as early as Monday.

"This is the first case where these intellectual property issues have come to a head," said David Ardia, director of the Citizen Media Law Project at Harvard University's Berkman Center for Internet and Society in Cambridge. "If the judge was to rule for GateHouse on every point, it would have far-reaching implications for the news and information ecosystem that underlies the Web as we know it."

Kelly McBride, ethics group leader at the Poynter Institute in St. Petersburg, Fla., a school for professional journalists, said the case could result in new guidelines for how much, if any, content from one website can be used by another. "This is standard procedure across the Internet now," she said. "Newsrooms adopted the procedure from other practitioners."

I'm a little behind this story, but yes, the AP acted like goons when they threatened the Drudge Retort with a lawsuit over fair use. I would imagine it was some of their lawyers hunting around the Internets to see if any websites were copying their material. Unfortunately, they got a little trigger happy and attacked a blogger for nothing.

The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.
On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was "heavy-handed" and that The A.P. was going to rethink its policies toward bloggers. The quick about-face came, he said, because a number of well-known bloggers started criticizing its policy, claiming it would undercut the active discussion of the news that rages on sites, big and small, across the Internet

Jamie emailed this story over when it first hit on Slashdot, but I didn't have a chance to post this yet. I've always been treated fairly by the AP so it was surprising to see them act like this, but give someone a new internet tool to play with and you wind up with idiotic threats. As KOS said earlier they now are backtracking a little bit:

The AP is going to lecture bloggers about what the "spirit of the internet" is all about? Laughable. And the AP certainly doesn't have free reign to rewrite copyright law on its own. Fair use provisions.

Hahahaha, OK, sure. Good luck with that, AP, I think it's really about trying to save face on their part at this time, but they walked right into a buzz saw. Look what they got themselves into.

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Mike had this as part of his Blog Round Up a couple of days ago, but C&Ler Nate of GITF sent in this tip. As bloggers, it's worth repeating. TRex at FDL sums up the story nicely:

Where to begin? First we'll go to A. J. Kandy, who blogs at King Marketing:

ABC/Disney operates a US-wide network of radio stations and affiliates. One of these affiliates, San Francisco's KSFO, is a die-hard right-wing talk shop whose rabidly eliminationist hosts have publicly endorsed (if not outright revelled in) torture and engaged in hate speech of all stripes. However, the station is sold to its advertisers as a "Disney" station, with all the connotations of family-friendliness that entails.

Self-described "fifth-tier blogger" Spocko decided to "out" KSFO to its national advertisers with a polite letter-writing campaign, and by exposing their hate speech on his blog with short audio clips and transcripts (which falls under the Fair Use statutes.)

This, of course, is what we call citizen action, and most of us know the drill by now. We write to advertisers and once in a blue moon, they write us back, pat us on the head and tell us that they'll take our suggestion under advisement, then go on their merry way without changing a thing. This was not the case, however, with Spocko. From a guest post at BlogIntegrity, Spocko himself can tell us what happened next... Read on...