Is YouTube the greatest swindle of all time? Or a brilliant "thread-the-needle" approach to copyright law? In one corner we have Mark Cuban who famously said that "only a moron would buy youtube" prior to Google being a moron buying the thing. In the other corner we now have Tim Wu, writing for Slate who provides an interesting analysis of copyright law and an explanation of why Google got YouTube cheap was willing to take on the risk of buying YouTube. Wu writes:
But what about Mark Cuban's copyright argument? Why isn't YouTube is trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the §512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that's the law and why YouTube should really, really thank its friends at Bell.
The sometimes vitriolic dispute (I mean "moron?" come on Mark!) hinges on the question of whether there is a difference between what Napster and what YouTube have done to build their businesses. Arguably, the two models are very similar -- both companies have provided consumers with access to copyrighted material, without a license, and financially benefited from this activity. Tim Wu argues that the difference is that YouTube benefits from the notion of "Safe Harbor" which we have, he points out, because of the Bell operating companies lobbies to Congress... Wu writes:
Thanks to the Bells, all these companies (ed. "Information Residing on Systems or Networks At Direction of Users.") are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down. Then, so long as YouTube acts "expeditiously" and so long as YouTube wasn't already aware that the material was there, YouTube is in the clear. In legal jargon, YouTube is in a "safe harbor." Earlier this week, when YouTube took down 30,000 files after requests from a Japanese authors' group, that was §512(c) in action.
This is in contrast to Napster in two fundamental ways -- First, Napster was a network which was wholly about copyrighted content and not about "user generated content." Secondly, Napster had a pretty good idea of what people were doing with their system.
As Robert Frost wrote in his poem The Road Not Taken:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.
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