Google, the Moon Shot and Copyright [International]

Here is an interesting quote from the article “Google’s Moon Shot; the quest for the universal library” by Jeffrey Toobin, New Yorker, issue of 2007-02-05:

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“Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”

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By this analogy for use (key-word reference searching of books rather than reading the entire contents) access to this digital storehouse of books is much like access to articles in full-text databases. The difference is that licensing contracts govern usage of copyrighted articles in databases, and the lawsuits of publishers against Google books show that there is no equivalent system for copyrighted books scanned by Google. Another example of the use of books in the way we use journals is a quote elsewhere in the New Yorker article. Google scans the entire book, but makes the text available to the reader only a section at a time.

Point - Counterpoint

“The suits that have been filed are a business negotiation that happens to be going on in the courts. We think of it as a business negotiation that has a large legal-system component to it” — Marissa Mayer, Google

“This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal” — Pat Schroeder, president of the Association of American Publishers.

Licensing as a Barrier

“If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.” — Lawrence Lessig

“Google didn’t get video search right—YouTube did, Google didn’t get blog search right—technorati.com did. So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.” — Tim Wu

Viacom v. Google [Has Internet Freedom been put to the test?]

The notion of the Internet as a free ride, a place in cyberspace where almost anything is available for nothing, might at last be put to a real test.

After weeks of fruitless negotiations, the media conglomerate Viacom - owner of MTV, Nickelodeon, Comedy Central and Paramount Pictures - sued Google and its wildly popular video-sharing site YouTube yesterday for what it claims is copyright infringement.

Viacom, which is seeking $1 billion in damages, said in its suit that YouTube has benefited from what it called "massive intentional" violations of copyrights of Viacom-owned videos.
The lawsuit represents the biggest face-off between old and new media since the Recording Industry Association of America forced Napster to shut down its song-trading system in 2001. And it could force changes in the delivery of the Internet's biggest draw, its free content, analysts say.

Or it could be a negotiating tactic: Media companies have watched with both fascination and fear as YouTube, which was purchased by search-engine giant Google in November for $1.76 billion, has exploded into a hugely popular online destination, where millions of people view and post videos and short films ranging from the mundane to the bizarre.
The lawsuit likely is one of many to come, said Bruce Sunstein, co-founder of the intellectual property law firm Bromberg & Sunstein in Boston.
"Finding a way of peaceful coexistence is quite a struggle," Sunstein said. "Google's motto is 'Don't be evil,' and you could argue that with YouTube that motto is wearing a little thin."
In a statement, Viacom said YouTube "is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself," adding that YouTube and Google "actively engage in, promote and induce this infringement."

Viacom, which last month demanded that Google take down more than 100,000 of its videos from YouTube, is asking the U.S. District Court for the Southern District of New York for an injunction that would bar Google and YouTube from persisting in what it says are the infringing activities.

Google issued a statement saying it had not been served with the lawsuit but was "confident that YouTube has respected the legal rights of copyright holders."
In its own statement, YouTube pointed out that its video-sharing system actually benefits copyright owners because it exposes their material to a huge audience:
"YouTube is great for users and offers real opportunities to rights holders: the opportunity to interact with users; to promote their content to a young and growing audience; and to tap into the online-advertising market."

Many Internet aficionados sided with YouTube, and said Viacom's lawsuit would probably not have a revolutionary impact on the Internet as a whole.
Jeff Jarvis, who blogs about media at Buzzmachine.com and is director of the interactive journalism program the City University of New York's Graduate School of Journalism, yesterday posted an entry in which he called the Viacom lawsuit "boneheaded." But he wrote in an e-mail later that he did not think it meant "the beginning of the end of the free Internet."
"There are too many smart media companies that realize the value of your fans recommending you," Jarvis wrote. He compared Viacom's move to the RIAA's legal efforts against Napster, which agreed to pay more than $26 million to settle its disputes with music publishers and songwriters.

"This is very much like the music industry except that this time, the companies are not marching in lockstep over the cliff," Jarvis wrote. "This time, there are a lot of smart companies that are trying to take advantage of the fact that their fans are recommending and distributing them to more fans. Viacom is standing pretty much alone."

But Jonathan Dube, vice president of the Online News Association and editorial director of the Canadian Broadcasting Corp.'s Web site, CBC.ca, said Viacom is "simply trying to protect its content and control its ability to profit from it."

Viacom, which also owns BET, VH1, Nick at Nite, CMT: Country Music Television, Spike TV, TV Land and about 120 other networks around the world, is still making its content available to users who visit those Web sites, Dube said, but on its own terms.
"Users can watch clips on Viacom's sites - such as from Comedy Central's The Daily Show with

Jon Stewart - and even take the code and embed it on their own sites, similar to YouTube," Dube said. "It's still too early to tell exactly what content people will be willing to pay for and what content will end up purely free."
John K. Hartman, a journalism professor at Central Michigan University, said the Viacom/YouTube imbroglio could be a harbinger of other developments
"We are not far away from Google, Yahoo buying newspaper chains to control content and ads and eliminate suits," said Hartman.
"The Internet," he said, "wants to be free."

W. Joseph Campbell, an associate professor in the School of Communication at American University in Washington, said he was having trouble believing that Viacom's suit against YouTube "will prove to be a major impediment for a resource as dynamic and swiftly changing as the Internet."

However, he said, "It does seem as if we're becoming farther removed all the time from the prospect of 'Googlezon' dominance."

Viacom sues Google’s You Tube for Copyright Infringement [International]

Media conglomerate Viacom Inc. (VIAb.N: Quote, Profile, Research) sued Google Inc. (GOOG.O: Quote, Profile, Research) and its Internet video-sharing site YouTube for more than $1 billion on Tuesday in the biggest challenge yet to the Web search leader's strategy to dominate the online video market.

The lawsuit accuses Google and its popular online video unit of "massive intentional copyright infringement" for allowing users to upload popular shows, threatening ambitions to make YouTube a major entertainment and advertising outlet.
The legal challenge from Viacom, home to the MTV and Comedy Central channels, also suggested a wider battle between traditional and Internet media companies that now compete for audiences and advertising dollars.

"This is a seminal event in Media-Internet relations ... and how the value of content will be clarified in the online medium," wrote UBS analyst Aryeh Bourkoff in a client note.

Shares in Viacom slipped 9 cents to close at $39.48 on the New York Stock Exchange and Google shares fell $11.72, or 2.6 percent, to $443.03 on Nasdaq.

Viacom has been the most vocal critic of YouTube during months of negotiating over payment for use of its programming. The Sumner Redstone-controlled company last month demanded YouTube pull over 100,000 video clips uploaded by users
"YouTube's strategy has been to avoid taking proactive steps to curtail the infringement on its site, thus generating significant traffic and revenues for itself while shifting the entire burden -- and high cost -- of monitoring YouTube on to the victims of its infringement," Viacom said.

YouTube does not prevent copyrighted content from being uploaded onto its site, but will take material down at the request of copyright owners.

Google said it was confident that YouTube respects the copyrights at issue in the Viacom case.
"We will certainly not let this suit become a distraction to the continuing growth and strong performance of YouTube," Google said in a statement.
General Electric Co.'s (GE.N: Quote, Profile, Research) majority-owned NBC Universal and News Corp. (NWSa.N: Quote, Profile, Research) have also criticized YouTube's policies on copyright protection but stopped short of legal action, testimony to the dilemma of media companies forced to choose between embracing a fast-growing outlet for younger audiences and trying to build competing Web vehicles themselves.

"We've dealt with YouTube on a case by case basis to have content taken down," a News Corp. (NWSa.N: Quote, Profile, Research) spokesman said, adding that the company supported Viacom's right "to protect its own content in whatever way it needs to."

Viacom found another ally in Time Warner Inc. (TWX.N: Quote, Profile, Research)
"It is clear from this lawsuit that it is time for YouTube to remove unauthorized material from its site," a Time Warner spokesman said. "We are in talks and hopeful we can work together toward a solution that would effectively identify and filter out unauthorized material and license copyrighted works for an appropriate revenue share."

Viacom contends that almost 160,000 unauthorized clips -- from excerpts of comedy talk show "The Daily Show with Jon Stewart" to pieces of children's programs like "SpongeBob SquarePants" -- have been uploaded on to YouTube's site and viewed more than 1.5 billion times.

The decision to sue Google followed "a great deal of unproductive negotiation," the company said.
Viacom filed the suit in the U.S. District Court for the Southern District of New York, seeking an injunction against further violations and damages.
Google bought YouTube last November for $1.65 billion, aiming to capitalize on its explosive audience growth built from sharing both homemade and professionally produced videos.

YouTube has reached licensing deals with major record labels, but still faces the ire of major media companies. Google has promised new technology to help identify pirated videos, but has not given a timetable for its introduction.

Any progress Viacom makes in its lawsuit could spur other companies to consider legal action against YouTube and raise new questions about the laws governing digital distribution.
"If there's anything central to Google's business model, it is being at the center of everything," said Forrester Research analyst James McQuivey. "This has the potential to put them on the periphery."

Viacom and peers like NBC Universal, in which France's Vivendi (VIV.PA: Quote, Profile, Research) owns a minority interest, are also investing heavily in their own Internet video sites to benefit from the migration of television audiences to the Web.
"There is certainly an opportunity for YouTube to do a deal with Viacom, but Viacom does not have to have a YouTube deal," said analyst Richard Greenfield of Pali Capital.

Google's dominance in Web search has made it a magnet for lawsuits by copyright and trademark holders.
The Silicon Valley company faces outstanding lawsuits in the United States and Europe by major book, magazine and online news publishers as well as small-time Web site operators.
Google has prevailed in high-profile suits against it by auto insurer GEICO -- owned by billionaire investor Warren Buffett's holding company Berkshire Hathaway Inc. (BRKb.N: Quote, Profile, Research) -- over trademark infringement, and in a demand by the U.S. Justice Department for consumer Web search data.