YouTube Begins Defense, Seeks Depositions

eldavojohn writes "YouTube has begun their defense against Viacom by first calling on 30 depositions from people like Jon Stewart & Stephen Colbert. While the article mentions that YouTube has not revealed what they hope to gain in these depositions, I think Jon Stewart's opinions will weigh in favor of YouTube. Comedy Central's parent company, Viacom, objects to YouTube's hosting of their content. Comedy Central hosts many Daily Show & Colbert Report clips on its own site, bringing in its own ad revenue."

It's a Tactic

You ask to depose a number of people, hoping that the inconvenience of the process will force the other side to back down. That's why Comedy Central has the Google founders on their deposition list. It's lawyering.

Re:It's a Tactic

In this particular case you may not be entirely correct. Stephen Colbert held a contest called Stephen Colbert's green screen challenge, which had viewers take stock footage of colbert messing around with a lightsaber and edit it in any way. The submissions were supposed to be made on youtube, not on any hardware Viacom provided. Submissions of the contest were regularily shown on the Report for over a month.

Both the Daily Show and the Report have used youtube in many ways to poke fun at it and use it for their show. Since Stewart and Colbert both have much to do with their shows content creation, it fits that they might be deposed.

Re:It's a Tactic

They can use it to allege unclean hands. If Viacom is taking Google IP, and Google is taking Viacom IP, neither might be able to successfully sue. http://en.wikipedia.org/wiki/Unclean_hands [wikipedia.org]

Re:It's a Tactic

You ask to depose a number of people, hoping that the inconvenience of the process will force the other side to back down. That's why Comedy Central has the Google founders on their deposition list. It's lawyering.

Probably not. The goal, here, is to discover exactly what's going to come out in court. Obviously the folks involved with The Daily Show will have information about the impact that You Tube has had on the show, how ratings have been doing, and so on.

Google needs to make the case that brief exposure to copyright violation (while Viacom staff hunts down the content and issues formal complaints to You Tube) has not had a negative impact on the programs that have been infringed. They also need to show that they've been prompt in responding to concerns about copyright violations on their site.

If they can make those two points, they'll have a start to a workable case. The real question is how much effort Google can realistically be asked to put in to make sure that their users don't upload copyrighted material. The answer to that question will have far-reaching impacts on every site (mine included) that allow users to contribute their own content whether text, audio, video or something else.

Is there any doubt?

While the article mentions that YouTube has not revealed what they hope to gain in these depositions...

Probably they're hoping that Colbert will raise his eyebrows and bug his eyes out during his deposition. Then they can put the footage on YouTube and rake in viewership from all the Colbert fans: "Look, while he said that he raised his eyebrows and bugged his eyes out! It's funny because he raised his eyebrows and bugged his eyes out!"

From the (Wrong) Horse's Mouth

I'm pretty sure both Stewart and Colbert have previously stated that they were pleased to see clips of their shows on YouTube, as it could only generate publicity and drive more viewers to the show. Unfortunately, neither gentleman holds the copyright to the shows, so their opinions might not carry much weight in this case. They may be the stars in front of the camera, but they are still basically employees.

Re:From the (Wrong) Horse's Mouth

Yes, people are going to come out and say that they should be considered heroes for standing up to Viacom and caring about user content on YouTube...but the truth is that they are employed for Viacom. If they really cared that much about their stuff being able to show up on YouTube, they would both quit Viacom and go exclusively web-based. This won't happen, and these guys are going to stay with whom their paychecks come from.

Re:From the (Wrong) Horse's Mouth

If they quit Viacom, it'd be kinda tough to get any more Daily Show or Colbert Report on the web, wouldn't it? They don't care about having their content "free" (as in speech) on YouTube. They want it on there "free" (as in beer) to generate a larger audience. They understand that if you give some users some free content, they'll be more likely to watch the show 'live' on TV when it first airs.

I know for me, watching Lazy Sunday on YouTube brought me back to checking out SNL again for the first time in several years...maybe that's just me though.

Have anyone tried to use Comedy Central's video?

It's not worth it. Slow, laggy performance and you have to wade through pages of premercials before you get to the crappy player. I've tried it a few times and it's such a lousy experience I don't bother anymore.

They should simply strike a deal with YouTube, take a percentage of ad revenue from pages with Comedy Central clips on them - and let the pros handle the video.

Re:Have anyone tried to use Comedy Central's video

That's the thing that gets me. The amount of effort they put into lawyering could easily be fixed otherwise by making a page that works. And why don't they include whole episodes? It's not rocket science. It's a really simple formula to follow. First take content, then put it on the fucking page, ordered chronologically. Oh, and yeah, please make a decent player.

The thing is, people are lazy. People will watch advertisements. Youtube doesn't usually have entire episodes, the episodes vary in quality, and it can sometimes take a good amount of time to actually find. If they just put the content where people want it (remember that whole economics thing, with supply and demand?), then why not provide it? You can even make money on it. Really.

Not to mention of course, Youtube helps gain popularity for the show. Something called advertisements. Something most companies have to spend a lot of money on.

Why don't........

Why don't content providers just go ahead and put all their shows up for downloading, stick all the adds they want in them, and tell people to download and copy them and give them away as much as they want? Can't they make a lot of money by advertising that way? Sure they wouldn't be able to track the results by Nielsen ratings, but the number of times the clips are downloaded should give them some measure of popularity to show advertisers and calculate advertising rates. I know an Israeli web site that I believe does something like this (for Israeli shows).

Re:Why don't........

Exactly. The sooner the content industry gives up on this obsession with complete control, the sooner a viable business model will emerge (and by "viable" I mean "fits with the internet").

Yes, some users will edit-out the commercials. Others will skip past them. It doesn't matter. A very large number of users won't bother skipping the commercials (if they are sufficiently short and not too frequent). And, if you make the shows very easy to find and download, users won't bother looking on P2P sites for the equivalent commercial-free version.

The key here is to make the experience for the consumer sufficiently convenient that they no longer feel the need to overcome "the system." When commercials are annoying, people learn to circumvent them (e.g. adblock on webpages, record and fast-forward for video). When commercials are "good" (sufficiently short, infrequent, and maybe even entertaining), people will watch them.

Colbert's Deposition

Colbert's Deposition:

Jugde: Overruled! Let the witness answer the question.
Colbert: Nation, there's no problem about people adoring me on youtube. That's only natural.

I've always wondered how Stephen Colbert would behave in real life.

I swear...

to tell the truthiness, the whole truthiness, and nothing but the truthiness.

Because they're entertaining

Obviously, they want Jon Stewart and Stephan Colbert's depositions because it's going to be really funny and make Viacom's position look stupid. Frankly, I'm surprised that more people don't depose Jon Stewart just to get snide commentary that will play well in front of a jury. In this case, it's even relevant so the jury could end up hearing it.

Objection: relevance?

I recently was arrested for stealing a hamburger from McDonalds. McDonalds has a new get-tough policy lately because of this growing trend of 'hamburgling.'

My lawyer has suggested - quiet brilliantly - that I subpoena Roger. Roger is the guy who works the register at the location where I've been hamburgling. He sometimes sweeps the floor. His IQ is around 75 and he has worked there for over ten years. He really knows the restaurant business because of all of that experience.

Roger agrees with me that the hamburgers cost too much and are of too low quality to pay for. He also thinks that having me come into the store in my hamburglar outfit [outlet4toys.com] excites the customers by giving them a little drama in their supersizeme lifestyles - so they are more likely to return and eat more. A testament to my success is that since I have been working that golden arches, on-site cardiac arrests and ambulence visits from all the McD customers have triped. Toilets overflowing incident reports have quadroupled.

We think we can get Roger to testify on my behalf that my hamburgling is actually helpful to McDonalds and that I'm not stealing anything of much value anyway.

Robble Robble.

Great idea

[From the executive offices of Viacom and Comedy Central]

"OK guys, I've got a great idea! There's this company out there on the interwebs called youtube, and they're owned by Google, and they get tens of millions of visitors every day. Now they're willing to host our videos - get this - for free!

So here's my idea: let's put our videos on our own website instead! That way, we can pay for all our own web design, site maintenance and bandwidth, we can make sure that the interests of the advertisers who finance us go unserved thanks to our site getting just a tiny fraction of the traffic youtube gets, AND we can piss the whole world off in the process! How can we lose!?

Maybe

Maybe YouTube is trying to prove that its not causing harm to other businesses. Jon Steward and Stephen Colbert can talk about how they've spoken highly of YouTube and yet they haven't seen any drop in ratings that can be attributed to YouTube. I mean, if they can prove they're not causing damages, Viacom may have a difficult time pursuing $1 billion dollars in damages.

Hopefully though, they'll still try to use safe harbor laws in their defense. I think they have a much stronger case there.

simply

They should realize that they can't STOP people from distributing videos like this... and accept the fact that it serves as free advertising for their shows. sure THEIR ads are not in it.. but it's like an AD for people to watch there ad... they should sue Tivo too for letting people skip commercials (did that already happen?.. meh whatever)

Opinions change

"I think Jon Stewart's opinions will weigh in favor of YouTube."

I wouldn't count on that. I bet Mr. Stewart will be thoroughly "briefed" by Viacom Corporate Counsel prior to the deposition about what's an appropriate response in behalf of Mr. Stewart's employer.

Re:Opinions change

Viacom needs Jon Stewart more than Jon Stewart needs Viacom. Think about it. If Jon was fired from his job at The Daily Show, he would immediately be signed by a rival to Viacom. I don't think he really has much to worry about other than speaking his mind. At the very least, he might make Viacom look good for hiring an intelligent man.

Re:Opinions change

It doesn't really matter who needs who. There is a contract that doesn't expire until next year. There have been rumors that NBC may try to hire Jon Stewart to do late night, and an alleged dinner with the head of NBC, Jon, and his agent.

Given how popular his show is, I would be surprised if there wasn't a bidding war for him once his contract is up.

Stephen Colbert?

Oh please! No one post this on YouTube! [youtube.com]

A few ideas for approaching this mess....

Showing copyrighted material for profiteering is obviously wrong. The REAL question is, should "GooTube" (Google & YouTube) be held responsible for the discovery and/or removal of infringing content they host. Also, for this content that isn't discovered or removed, is it reasonable to force GooTube to dicover & remove 100% of those? And, if GooTube makes the offer as it has been to remove all infringing content, does that cover their ass?

Here are some different approaches I have to this issue, although they still don't answer the basic question or whether or not GooTube or Viacom and company should be responsible for notifying GooTube about infringed material. Just brainstorming...

• Preliminary assumption:
  Either GooTube or copyright holders will be responsible for identifying their copyrighted materials. There's really no other way around it, because copyrighted materials will need to be identified, unless the court somehow decides that GooTube is not infringing upon copyrights, which I seriously doubt.
  
  
• Solution #1: Revenue sharing
  GooTube shares all or a portion of ad revenue generated on the page which holds the copyrighted material to the company who holds the copyright. This could allow the content to remain up (at the copyrighter's discretion?) and possibly be beneficial for all companies invovled.
  
  
• Solution #2: Revenue removal
  GooTube removes all advertisements on pages that contain copyrighted material, so they are no longer profiteering. This could pave the way to hosting copyrighted material by removing one of the most 'illegal' aspects of what YouTube is doing, and also perhaps at the discretion of the copyright holder.
  
  
• Solution #3: Monitoring & removal
  GooTube finds someone who knows what every single thing that has ever been copyrighted looks, sounds, feels and smells like... And every file that is uploaded to GooTube passes through this one person. This person will be responsible for filtering all infringing material and if he or she lets something slip, well... This person won't, right? Perfectly reasonable.
  
  It seems GooTube's crutch is the copyright holder is responsible for notification and/or removal - not GooTube. However, we all know companies like Viacom would rather not deal with it so they are hoping this won't hold ground in court, I'm sure.
  
  I personally believe that it is ridiculous to hold GooTube responsible for absolutely every video that passes through, especially when they do so much filtering/removal already, but it IS wrong to profit on copyrighted works that you don't hold the rights to.
  
  It is also my belief that it is unreasonable to place the burden upon copyright holders to monitor and notify GooTube for every single infringing video they may have.
  
  But lastly, I believe very strongly that YouTube is a positive force in this world. You can LEARN so much, ENTERTAIN yourself silly or SHARE your yourself however you'd like. And we've all seen the headlines with YouTube busting criminals, crooked police offers etc.. I think the worst alternative is shutting YouTube down. Not that we won't survive without YouTube, from guitar lessons to how to tie your own tie, I think it does far greater good than harm, whether or not it may unlawful.

Colbert

I personally think that Colbert will be more supportive to Youtube. He asked in a number of episodes to have people put him on youtube (green screen challenge for one).

Crazy

This whole thing is ridiculous to begin with. This is what Viacom should have done: Post the clips to YouTube themselves and at the end of each one have something saying "Watch The Daily Show on Comedy Central. Every weekday at 8!" They could have made a deal with YouTube to have their own Comedy Central Channel on YouTube.com

Link to depositions?

Wouldn't it be jolly if YouTube recorded the depositions and put those recordings on YouTube?