Viacom, YouTube Legal Tiff Irrelevant in End

Judging by the sturm und drang roiling the blogosphere and media circles, you’d think that Viacom’s $1 billion lawsuit against Google’s YouTube is the epic confrontation of old media vs. new, of suits vs. hipsters, of DRM vs. free love, of greed vs. good. It may well be all those things, but it will not change the basic fact that as long as there is a high-speed Internet, there will be people uploading and sharing video, whether it’s copyrighted, non-copyrighted, fair use or unfair use.

The suits at Viacom need only look as far as the music business to find out where the lawsuits will lead. Sure, the RIAA et al crushed Napster and sued a bunch of music-sharers, but music sharing did not die. The only thing that has slowed music sharing is the advent of cheap, reasonable pay music downloads, mainly through Apple’s iTunes.

What Chad Hurley and Steve Chen did was help point the way to the future. They are not the future, but they pointed the way. “Here guys, anyone can make a video-sharing site, and then let anyone upload their videos and share them.” It’s no wonder that there are hundreds of video-sharing sites on the Internet, and not all of them are based in the U.S.

What sets YouTube apart from all those other sites is that it makes it so easy for you to upload videos and share them, and YouTube had the name and branding and audience fastest. It didn’t hurt that an NBC clip from “Saturday Night Live” boosted its traffic and profile in earlier days.

Google mistakenly thought it could catch lightning in a bottle by buying YouTube before it had an established business model. Findory CEO Greg Linden was quick to note why the $1.65 billion buyout would be a problem for Google:

This is a horrible idea. YouTube is a collection of uploaded content. They have no interesting technology. All Google would be buying is YouTube’s existing content and user base. Google has never been about owning content and users before. Google makes it easier to find other people’s content. Google’s core strength is in helping people find and discover information, not in controlling information and people. This merger would be classic deworsification.

I love that word, “deworsification.” And many other tech startup types have assailed the Google purchase for being an opening for media companies to start suing YouTube into oblivion. Microsoft’s Don Dodge, a former VP at Napster, is one of those people, and says, “I’ve seen this movie. I know how it ends. Everybody loses…except the lawyers.”

This is certainly a case of everyone losing. Viacom loses because it looks backward and tight-fisted for suing young upstart YouTube, and also loses whatever Net savvy it might have gained by playing ball with the site as others (including sibling CBS) have done. And GooTube will either lose a ton of money if Viacom wins or settles — as others will jump in and surely do — or it loses any focus it might have had on actually making money with the site.

Mark Cuban, who has played the anti-YouTube boar on his blog, was quick to shout You Go Viacom! virtually chest-bumping Viacom honcho Sumner Redstone. Cuban says the suit is a no-brainer for Viacom because it either pockets a ton of cash or has to pay some legal fees if it loses. But his bigger point is that the Digital Millennium Copyright Act (DMCA), which only took a few years into the millennium to become outmoded, would be torn apart by the media industry’s lobbying power:

The DMCA safe harbors [for forum owners who host other people’s content] as they are written will not exist for very long. You can bet the same companies that spend tens of millions of dollars to extend copyrights to ridiculous extremes, or that want to push for truly ridiculous things like a Broadcast Flag, or the new webcast royalties, will spend whatever it takes to get the law changed to their liking. Just as they have done multiple times before. One thing is certain, our lawmakers and lobbyists are relatively cheap compared to the dollars at stake here.

Google may not know it, but they have already lost. They will lose this case if it’s fought to the end, and whatever moral victories they may be able to gain in a legal battle or settlement will be ripped from them when the DMCA is changed. Then they will still have to negotiate with copyright owners to get their content. The entertainment industry may not be great at many things, but getting copyright law changed to meet their expecations is one thing they are better than anyone at.

That might be true, but one of the things they are not good at is understanding how technology is helping to shift the thinking of their audiences. Those audiences are now in control and involved and creating their own content and commentary online. If you follow the thinking of Viacom, then they will be suing their biggest fans next for uploading video.

Leave it to BuzzMachine blogger Jeff Jarvis to lash out at Viacom with gusto:

I’ve been reading Viacom’s boneheaded $1 billion complaint against YouTube. Viacom complains about YouTube but, in truth, they’re complaining about their own viewers. They whine about theft but, in fact, they’re whining about recommendation, about their audience finding them more audience. Viacom is trying, singlehandedly, to turn the TV industry into the music industry. They are trying to spread stupid.

Luckily, stupid only gets you so far. While the pundits are endlessly theorizing about this lawsuit, about the particulars of the DMCA, about the future of Viacom online, about the viability of YouTube and parent Google, regular folks will continue to upload videos they’ve made or found, whether they do it at Daily Motion or Broadcaster or OurMedia or a non-commercial open source alternative.

You might be able to win a legal victory against YouTube, and a legal victory against the next big video-sharing site, but then there’ll be another one and another one and another one. All that energy would be put to much better use just posting your own viral video clips and including ads or promotions that will lead people to buy the DVD or pay for downloads of full episodes.

What do you think? Is Viacom justified in suing YouTube, or do you think it was a bad move? What is your vision of the future for online video that would allow sharing but also respect the rights of video owners and artists?

Photo remix above of Viacom’s Spongebob eating YouTube CEO Chad Hurley thanks to original photo of Spongebob by Ashley Ringrose and photo of Chad Hurley by Dan Farber. No sponges or CEOs were harmed in the making of this remix.