Why Google is in Copyright Trouble

On the Internet, Google can seem invincible.

With the lion’s share of the search engine market, the largest advertising network and the Internet’s best trademark, Google is a powerhouse without equal on the Web.

According to their financial data, they had over ten billion dollars in revenue last year, almost doubling their nearest competitor, Yahoo!.

Some view Google as a friendly giant, others as an evil one. Either way it has run almost unopposed on the Web for several.

So it is a surprise to many when the media started reporting on Viacom suing YouTube , which is owned by Google, for $1 billion and many pundits are worried that Google might lose. They’ve already been handed an embarrassing defeat in Belgium and have even been taken to task by Microsoft for their handling of copyright .

Google’s reign as King of the Web is now being contested, Google can no longer do whatever it wants and borders are being drawn. Yet much worse things might be in store for Google and its trials over the next few years may shape the future of the Internet permanently.

Here’s a Pen… Write the Law

When the Internet was young and search engines were an emerging technology, search engine companies operated with a great deal of ambiguity regarding copyright law. There was no DMCA, no clear guidance on what use was considered “fair” and no guidance on whether or not the search engine itself was an infringement.

Still, search engines were necessary and the companies running them, including Google beginning in 1998, moved forward. They created a set of rules that they considered to be fair and Webmasters, desperate to get high rankings in the results, went along almost blindly.

The result was that, when someone finally had an objection and took it to court in 2005, a standard industry practice was already in place and had been for some time. Thus, when the ruling came down from a district court in Nevada, the judges cited those standards (PDF), including meta tags, opt out and spidering, when declaring the Google Cache to be fair use.

Google, and the other search engines, had created a standard and then effectively got it pushed into law. This isn’t to say that the ruling was bad or misguided, just that Google and its counterparts were able effectively write the law for how search engines handle Webmaster’s content, or at least the specifics thereof.

It was an amazing feat, only possible in a new industry like the Web.

Eventually, however, Google started to enter other industries, including ones that were not so willing to bow down before Google on matters of copyright.

Stranger in a Strange Land

In October 2004, a few months before the Google Cache fair use ruling, Google introduced Google Book Search (then known as Google Print), an effort to catalog and make searchable as many books as possible. It was a mammoth effort that fit well with its stated goal of making all of the world’s information searchable.

However, where the Internet was new malleable to Google’s wishes, the publishing industry has been around for centuries and has deep-rooted ideas about copyright. Though many publishers jumped at the chance to have their works indexed, others did not. In September 2005, the Authors Guild sued Google calling the Book Search “a plain and brazen violation of copyright law.”

That suit was followed in October 2005 by the Association of American Publishers filing a similar lawsuit saying that “The publishing industry is united behind this lawsuit against Google and united in the fight to defend their rights.”

Though both of the lawsuits are currently still pending, it’s likely that Google did not anticipate the backlash. Webmasters were so eager to have their content spidered, indexed, searched and presented alongside in order to obtain more traffic, logic dictates publishers and authors would jump at the same chance if it meant greater sales.

Google found itself in a very strange place. Though a big player in the publishing world, it wasn’t big enough to simply enforce its will on the other key players.

In short, what was acceptable when dealing with Webmasters desperate for search engine attention, did not work well at all with publishers and authors that didn’t need Google to get their books read.

Giant, Meet Ogre

In January 2006 Google introduced its Google Video product. Then, in October, it purchased the leading site in the online video market, YouTube .

Though most videos on both of these sites are legitimate and truly user-generated, it was inevitable that many copyrighted videos began to appear. This includes clips from TV shows, movies and other copyrighted sources. Though some clips could easily amount to fair use, others were clearly copyright infringement.

This pushed Google into yet another new kingdom, one ruled by the media conglomerates such as Viacom, General Electric and Time Warner .

Google was no longer the biggest player. In fact, many of the companies easily dwarfed Google. Time Warner, for example, has over four times the revenue of Google and nearly eight times the employees of Google.

Even in terms of viewership, these companies easily eclipse Google. The most popular YouTube Clip, the Evolution of Dance, has been viewed a little over 44 million times as of this writing. It was posted eleven months ago. That averages to about 4 million per month or 1 million per week. American Idol, by contrast, gets over 50 million viewers in a week .

Youtube’s numbers are impressive, but traditional media still has the lion’s share of the eyeballs. That may be changing, but Google, currently, is a small fish in this market.

Companies like Viacom don’t need Google. Google, especially with YouTube, needs the conglomerates, or at least their content. This is why Google has sought out deals with many of the major players, including ones that fell through with both CBS and Viacom, and why it has dragged its feet with filtering technology.

For Google, this is role reversal. Rather having than content owners rush to get their material into the search engine, often resorting to spamming, content providers now have the upper hand. No one had any trouble finding The Daily Show before YouTube, but without clips from it, YouTube will suffer.

This is illustrated in the plight of similar sites, such as Ourmedia, that does actively filter out infringing material. These sites are struggling to gain traction, even though they host much of the same user-generated content. Though the lack of copyright clips is just one factor to consider, others include branding, usability and reliability, it is a major one and it is clear that Google is worried about losing access to copyrighted videos.

It’s a reasonable concern. Over the long run, the sites with access to our current pop culture, comprised largely from copyrighted clips owned by media conglomerates, may determine who controls it for the next decade.

Google’s Mistake

Google’s great error was failing to realize, or realize too late, that it was not in Kansas anymore and that Oz was a much less hospitable place for them.

They felt that Viacom and others like them would see it their way, realize that YouTube is a great revolution and that they need to be on board. Google wanted deals that were more in line with what they were used to, or at least greatly benefited them.

However, as I said before, Viacom doesn’t need YouTube, at least not right now. It is easy for us Web dwellers to lose sight of traditional media, but it’s still very much their world. Your average daily newspaper still has a much higher readership than even the largest blogs, TV still dwarfs YouTube and traditional radio still beats out its online counterpart.

The world may be changing, but the revolution still has a long way to go.

However, Google probably didn’t feel pressured to cut a better deal for Viacom because, in their view, they are covered under the DMCA. That may very well be true, but it could very well be a moot point. Hiding behind the DMCA will protect them from the $1 billion lawsuit, but it won’t give them access to the clips they want.

A bitter fight followed by a Google victory would, most likely, just further jade the media conglomerates, motivating them to either sign deals elsewhere, as Viacom did with Joost, or create their own network.

In short, even if Google wins the lawsuit, they’ll likely lose out. They simply can not compete with content they don’t legally have access to. Viacom seems to be done negotiating and additional lawsuits appear to be likely.

Whether this hurts Viacom or not will be seen later, but it doesn’t seem to bode well for YouTube and Google, no matter how it gets resolved in the courts.

Conclusions

It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.

History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.

Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.

That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.

This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.

If they don’t, no matter who wins, it could be catastrophic.

We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.

Suggested Reading:

Blog Maverick: You Go Viacom
Lawgarithms: Viacom v. YouTube represents a watershed moment in video policy
Internet Outsider: Cuban Shreds GooTube; I Respectfully Differ
Compete: Viacom vs. YouTube: The Billion Dollar Question

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8 comments
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MichaelsLaw
MichaelsLaw

Your article is well written but I think you're missing a very big piece of the picture - Google's arrogance in this equation. Google bought YouTube expecting companies like Viacom to either come to the table and make a deal or continue to be a victim to the Internet revolution and fair use of its content. They introduced numerous additional items into the negotiation with Viacom that would net Google additional revenues. Basically Viacom got fed up and told Google to go to H-E double hockey sticks and that it might be king of the Internet for now, buying up best in breed assets like they are going out of style, but they aren't the only big player in the industry. Viacom's lawsuit is dangerous not because of the 1 billion dollar price tag for this suit, but for leading the other players into suing Google and making this a more acceptable trend. In the end, it's difficult to believe that anyone could consider YouTube fair use when the world considers it the Internet's Video On Demand. Nobody gives a damn about 99% of the "user generated content" and they are more concerned with catching free viewings of the TV programs they missed the night before in the world's biggest copyrighted video library. We live in interesting times and we'll see how this lawsuit affects a potential avalanche of liability.

MichaelsLaw
MichaelsLaw

Your article is well written but I think you're missing a very big piece of the picture - Google's arrogance in this equation. Google bought YouTube expecting companies like Viacom to either come to the table and make a deal or continue to be a victim to the Internet revolution and fair use of its content. They introduced numerous additional items into the negotiation with Viacom that would net Google additional revenues. Basically Viacom got fed up and told Google to go to H-E double hockey sticks and that it might be king of the Internet for now, buying up best in breed assets like they are going out of style, but they aren't the only big player in the industry. Viacom's lawsuit is dangerous not because of the 1 billion dollar price tag for this suit, but for leading the other players into suing Google and making this a more acceptable trend. In the end, it's difficult to believe that anyone could consider YouTube fair use when the world considers it the Internet's Video On Demand. Nobody gives a damn about 99% of the "user generated content" and they are more concerned with catching free viewings of the TV programs they missed the night before in the world's biggest copyrighted video library. We live in interesting times and we'll see how this lawsuit affects a potential avalanche of liability.

Michael
Michael

Viacom is likened to a Escrow Company having Escrow Holders (escrow holders are not a judge). Most Escrow holders destroy the Escrow paperwork within five years, a copyright lasts longer than five years. The California Escrow Law – Section 17003 of the Financial Code – provides the legal definition. An escrow holder is dissimular to a Escrow Officer whom can simply not retain any Escrow paperwork at all because of the overhead cost factors since many principals are involved in the making of a Property Escrow, in this case it is a Intelligence Escrow Property and is subject to taxation and down the road fees that are applicative from any and all Escrow altercations and judgements wheres the problem occurs when a Escrow is probated and the appointment of a Interpleader Action is deemed necessary following a cancellation notice which incures the most expensive fees and sometimes consumes the entire Escrow Account in the dispute of the Intelligentual Copyright Property. This management service is at best a forced hand matter, closures of Copyright require a New Application while management can overlook that the Copyrighter should argue for the writer/owner instead of himself or the company backing the documentation such that Viacom has been and is planning to continue to endorse. Google is in no way attempting to change Viacom's management or criteria, nor offer a better construction for their matter so I fail to see any infringement of Copyright by Google or anyone else. What can happen adversely is that Viacom and other such like Viacom finds that Writers/Owners will begin to endorse their own works and stay clear of the industrial management of documentation, yet to realize what it could cost in the long haul to have to cancel a Copyright and create a new Copyright. See its not about Google managing anything at all. Certainly less management that NBC is endorsing which is also a Escrow agreement between parties (principals) for NBC. Viacom is a challenge to the laws of the United States of America and the State of New York under their own terms. Most websites are mere single year Copyright matters and most do not formerly recognize a necessity in complying to Copyright in the first place. If a product is being solely distributed by the webmaster it could have a Copyright but most formulas and small businesses providing content do not endorse Copyright or even a Patent until at least three years have elapsed for product testing to complete including the public awareness and support for or against the product as this can create new products which may during the three years end up with more than two seperate products and a better awareness of the needs of purchasers. Viacom is not making that their statement.

Michael
Michael

Viacom is likened to a Escrow Company having Escrow Holders (escrow holders are not a judge). Most Escrow holders destroy the Escrow paperwork within five years, a copyright lasts longer than five years. The California Escrow Law – Section 17003 of the Financial Code – provides the legal definition. An escrow holder is dissimular to a Escrow Officer whom can simply not retain any Escrow paperwork at all because of the overhead cost factors since many principals are involved in the making of a Property Escrow, in this case it is a Intelligence Escrow Property and is subject to taxation and down the road fees that are applicative from any and all Escrow altercations and judgements wheres the problem occurs when a Escrow is probated and the appointment of a Interpleader Action is deemed necessary following a cancellation notice which incures the most expensive fees and sometimes consumes the entire Escrow Account in the dispute of the Intelligentual Copyright Property. This management service is at best a forced hand matter, closures of Copyright require a New Application while management can overlook that the Copyrighter should argue for the writer/owner instead of himself or the company backing the documentation such that Viacom has been and is planning to continue to endorse. Google is in no way attempting to change Viacom's management or criteria, nor offer a better construction for their matter so I fail to see any infringement of Copyright by Google or anyone else. What can happen adversely is that Viacom and other such like Viacom finds that Writers/Owners will begin to endorse their own works and stay clear of the industrial management of documentation, yet to realize what it could cost in the long haul to have to cancel a Copyright and create a new Copyright. See its not about Google managing anything at all. Certainly less management that NBC is endorsing which is also a Escrow agreement between parties (principals) for NBC. Viacom is a challenge to the laws of the United States of America and the State of New York under their own terms. Most websites are mere single year Copyright matters and most do not formerly recognize a necessity in complying to Copyright in the first place. If a product is being solely distributed by the webmaster it could have a Copyright but most formulas and small businesses providing content do not endorse Copyright or even a Patent until at least three years have elapsed for product testing to complete including the public awareness and support for or against the product as this can create new products which may during the three years end up with more than two seperate products and a better awareness of the needs of purchasers. Viacom is not making that their statement.

JB
JB

Psots,

First off, thank you very much for your comment. I greatly appreciate your thoughts.

I do want to clarify though, do not confuse my analysis for defense or endorsement. I'm not trying to endorse one side or another right now, that's for a later piece. I was more interested in the history of the matter and the potential implications. I'm sorry if it seemed otherwise.

However, with that in mind, it is important to note that there is, and always will be, gatekeepers. There is far more content than any one can consume. Some one, or some thing, has to filter it out. The difference between Google and publishing houses or, worse yet, the government, is that Google uses a largely automated process. Computers take control and determine what is seen.

If a page is buried to the 100th page of the SERPs, it's not censorship, but it is removed from public view. Google is a gatekeeper and that is not necessarily a bad thing.

Finally, I don't need to ask a writer about publishing houses. I am a published author, though under a pen name. I know how it is and I agree. One of the reasons I went the route I did was to get away from them.

I'm not saying Google is evil, just that it too is determining what we read and don't read, even if we don't realize it. It's a gatekeeper and we need gatekeepers because of our physical limitations.

JB
JB

Psots,

First off, thank you very much for your comment. I greatly appreciate your thoughts.

I do want to clarify though, do not confuse my analysis for defense or endorsement. I'm not trying to endorse one side or another right now, that's for a later piece. I was more interested in the history of the matter and the potential implications. I'm sorry if it seemed otherwise.

However, with that in mind, it is important to note that there is, and always will be, gatekeepers. There is far more content than any one can consume. Some one, or some thing, has to filter it out. The difference between Google and publishing houses or, worse yet, the government, is that Google uses a largely automated process. Computers take control and determine what is seen.

If a page is buried to the 100th page of the SERPs, it's not censorship, but it is removed from public view. Google is a gatekeeper and that is not necessarily a bad thing.

Finally, I don't need to ask a writer about publishing houses. I am a published author, though under a pen name. I know how it is and I agree. One of the reasons I went the route I did was to get away from them.

I'm not saying Google is evil, just that it too is determining what we read and don't read, even if we don't realize it. It's a gatekeeper and we need gatekeepers because of our physical limitations.

psots
psots

I think google fully expected to be sued by some companies when they bought youtube. That was all priced into their buyout offer. Being relatively new ground, this area is ripe for lawsuits. Cuban also warned about the potential litigation so to think google walked into this deal without a clue or any expectation of being sued is ridiculous.

You are absolutely right when you say that, historically, who controlled the information controls our culture. But what entities like youtube are doing is giving that control over information to individuals like you or me and AWAY from the traditional holders of information control-the powerful businesses and institutions like those large publishers you defend. Viacom may not need youtube but they are certainly terrified of what such models could do to their established control of information flow. And youtube does not need Viacom either...their user base is largely derived from legitimate content.

Oh and those publishers? Ask all those writers who created the content for those publishers what they had to go through to get the approval and blessing from them. Traditional publishers epitomize the command and control of information flow...all while actually creating none of it. But as intermediaries, they dictated what the rest of us could read. Google is doing the exact opposite of that.

psots
psots

I think google fully expected to be sued by some companies when they bought youtube. That was all priced into their buyout offer. Being relatively new ground, this area is ripe for lawsuits. Cuban also warned about the potential litigation so to think google walked into this deal without a clue or any expectation of being sued is ridiculous.

You are absolutely right when you say that, historically, who controlled the information controls our culture. But what entities like youtube are doing is giving that control over information to individuals like you or me and AWAY from the traditional holders of information control-the powerful businesses and institutions like those large publishers you defend. Viacom may not need youtube but they are certainly terrified of what such models could do to their established control of information flow. And youtube does not need Viacom either...their user base is largely derived from legitimate content.

Oh and those publishers? Ask all those writers who created the content for those publishers what they had to go through to get the approval and blessing from them. Traditional publishers epitomize the command and control of information flow...all while actually creating none of it. But as intermediaries, they dictated what the rest of us could read. Google is doing the exact opposite of that.