Truthiness report: Mark Cuban posts hearsay + speculation about Google-YouTube deal, later = near fact

October 31, 2006

News:  Mark Cuban ran an “insider’s” post about what went down in the Google-YouTube deal from an unnamed source who claimed to have second-hand knowledge from “people involved” in the Google-YouTube deal, but who openly admitted to be adding some pure speculation.  To his credit, Cuban admits that he has done no fact-checking and can’t vouch for the accuracy of the post (although Cuban does trust the source).

Despite the anonymous hearsay + speculation in Cuban’s post, it has already been reported as near fact, if not fact itself, on ZDNet, Search Engine Watch, and other sites.

Analysis:  I think it’s fine for Mark Cuban to blog this story with a disclaimer about its accuracy.  But it seems like the old trap of telling a story to one friend, who tells it to another, who tells it to another, etc.  By the time the story has traveled around, here, the Internet, it is transformed from speculation to near fact.  Now that’s truthiness.

LX.TV Lifestyle Television: making your own TV network, online

October 31, 2006

News: Elizabeth Holmes writes today in the WSJ about LX.TV, a website that plans to provide online programs for lifestyle and entertainment for the hip and fashionable.  The article is not freely available, but here’s a money line:

 “[The founders of LX.TV] hope to capitalize on the recent attention by coupling the Web’s cheap start-up costs and on-demand delivery system with a tried-and-true television formula: Find attractive young people.  Put them in front of a camera.  Surround them with expensive clothes, throbbing music, potent potables, fashionable nosh and more attractive, affluent young people.”

Analysis: The potential of a web network taking hold is exciting.  The start page for LX.TV seems a little slow to load, though.  Once I got to the videos, they were pretty slick.

Flash: TV shows go Internet

October 31, 2006

News:  USA Today has an excellent article, Networks work with Net, which discusses how the major networks are putting up more and more videos of at least some of their shows:  “In most cases, episodes are streamed starting the day after broadcast to give fans a chance to catch up on missed episodes and to attract new viewers. In a reverse twist, CBS’ Innertube site will air all seven episodes of canceled serial Smith and have the producers explain where the story was headed.”


NBC 24/7 video

CBS innertube

Fox on MySpace

The CW

Comedy Central

Analysis:  I just did a quick run through of each of the above sites.  They are getting slicker and slicker.  This is one of those watershed moments that we’ll look back on as being the start of something good.  Bye, bye, TV.

More on YouTube + DMCA safe harbor

October 30, 2006

News:  In the past week, a few more articles have come out analyzing the potential copyright liability of YouTube.  I’ll note two of them that conclude that YouTube most likely is safe from liability under the DMCA safe harbor provision, Section 512 of the Copyright Act.

1. John Berman, ABC, Could Copyright Fight Strip YouTube of Content? 

“But just because the videos are on the site, doesn’t mean YouTube has broken the law. The Digital Millennium Copyright Act, passed in 2000, largely protects Internet sites from liability and states they have little responsibility for what people post. This legislation may be the reason that although requests have come in for videos to be removed, so long as the site complies it’s doubtful that anyone could successfully sue YouTube.”

2.  Tim Wu, Slate, Does YouTube Really Have Legal Problems? 

“Thanks to the Bells, all these companies 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.'”

Analysis:  Both articles are well worth a read.  They attempt to lay out in understandable terms how the DMCA safe harbor operates for websites like YouTube. Tim Wu’s article does a nice job in describing some of the legislative history behind the DMCA safe harbor, particularly the Bell telephone companies’ efforts lobbying for the safe harbor. 

I do disagree with Tim Wu, though, on his assertion that “YouTube provides a search, and maybe it could be liable for that,” a point that he repeats when trying to explain why YouTube is different from Napster:  “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…”

To me, this argument seems just wrong on both the law and facts.  The DMCA safe harbor provision contains a specific subsection for location tools provided by websites (Section 512(d)).  It would be very odd if the DMCA didn’t–Google would be toast by now.  The real reason Napster did not successfully raise a DMCA safe harbor defense is that the Ninth Circuit deferred considering the issue at the preliminary injunction stage, and, unfortunately, Napster did not stay in business to see a trial.  A&M Records v. Napster, 239 F.3d 1004, 1025 (9th Cir. 2001).  Even if Napster had survived to have its defense heard by a court, it’s not clear that Napster in fact had a sufficient “notice and take down” policy in place. 

As for YouTube, this additional safe harbor for search provides another basis of immunity for YouTube’s location tools.  The safe harbor may be even stronger than described in Slate.

Some Comedy Central clips pulled from YouTube?

October 29, 2006

NewsNews Cloud reported and then Slashdot re-reported that Comedy Central apparently sent notice to YouTube asking it to take down some (if not all) clips of its shows from YouTube. Slashdot then reported that YouTube removed all copyrighted clips from YouTube.

If this were true, it would mark an about-face from last year when Jon Stewart and the Executive Producer from his show Ben Karlin basically expressed approval or acceptance of the online circulation of their show in a Wired interview

Analysis:  I had to rewrite this post because, as far as I can tell, there are many clips of Colbert, Daily Show, and South Park on YouTube.  There is one clip from the writer of NewsCloud that was removed (see here).  But I haven’t been able to identify any others.

I don’t know what to make of the situation.  If Comedy Central did ask for a total purge of all clips on YouTube, the clips probably wouldn’t still be up there.  And I would be a little bit surprised by such a request, since Stewart and Colbert seemed to be generating a lot of buzz through unauthorized clips finding their way on YouTube — without protest and even mild acceptance by Comedy Central.  True, Comedy Central might have an economic interest in removing all clips until it can get a big fat license from YouTube, post-Google deal, or otherwise it can depend on pushing sales and promotion of the Comedy Central shows on iTunes or CC’s own website.

Video of the week: Is this the future of the Internet?

October 27, 2006

Siva Vaidhyanathan: What we might lose from YouTube to GooTube

October 26, 2006

News:  New York University Professor Siva Vaidhyanathan writes this probing article discussing what might be the fallout from Google’s acquisition of YouTube.  He writes:

“I suspect that we will look back on the heady days of anything-goes-user-generated content with much nostalgia. That does not mean that YouTube will change radically over night. Nor does it mean that YouTube will cease to be the major site of user-posted-and-created video clips. It just is unlikely to be quite as noisy and silly.

“It’s not that YouTube now must behave like a grown up company. It’s more that YouTube is becoming the central battlefield in the next great struggle to define the terms and norms of digital communication. So it’s retrenching in preparation for that battle.

“And every week that ‘GooTube’ grows in cultural and political importance, the more stories we hear of important video clips coming down.”

Analysis:  In the interest of full disclosure, I know Siva and always find his writing to be filled with nice insights.  The same holds true here.  For starters, Siva is quite careful in not exaggerating the extent to which YouTube has changed, post Google-deal — unlike a lot of other more sensationalistic articles out there.  Also, I agree that YouTube is a key battleground “in the next great struggle to define the terms and norms of digital communications.”  That’s 100% right, in my view.

I do disagree, though, with Siva’s suggestion that YouTube should not have removed a copyrighted news clip that discussed Rep. Heather Wilson and her possible coverup of the file of her husband in an alleged sexual abuse of a minor.  The copyrighted clip was posted without authorization of the news station that created it, and, after the news station complained, YouTube apparently removed it.  Siva argues that the use of the news clip was an open-and-shut case of fair use.  I wish the law of fair use were so clear, but, quite frankly, it’s not.  In fact, some case law points against a fair use, although in that case there was a clear commercial use of the video clip.  See L.A. News Service v. Reuters Television, 149 F.3d 987 (9th Cir. 1998).

But I do agree with most of Siva’s discussion of YouTube’s taking down of Michelle Malkin’s conservative video (before the Google deal, discussed here).  It’s good that YouTube allows users to “flag” “inappropriate” content, but, as Siva identifies, the system has its flaws:   “That means that a virtual community enforces community standards. However, YouTube has no mechanism to debate and work through what those standards should be.”  YouTube has said it’s trying to improve the clarity of the standards.

There’s a lot more that Siva says than I can do justice to.  So go read the article.  He says it better than I could when he concludes:  “So here is my great hope for the Google-YouTube deal: I hope that Google’s boldness and tolerance immediately changes the culture of YouTube. I hope that the YouTube editors grow more confident and less fearful about what they can contribute to the culture of the Web. Meanwhile, it’s up to us to pressure YouTube and Google to keep the Web crazy, fun, and even a little scary.”