Bernoff predicts YouTube’s copyright demise

News:  Amid the tremendous media buzz for YouTube last week, Forrester Research analyst Josh Bernoff has blogged his prediction that “YouTube is goin’ down” in the same way Napster did.

“So, mark my words, YouTube will get sued. And it will lose. The tools it is talking about, that identify and remove copyrighted content, will have to be rushed into practice. And when nearly every clip that has copyrighted content — music in the background, video of Bart Simpson, photos stolen from movie posters — is gone, YouTube’s going to be a lot less interesting.

“You may tell me that companies like Warner Music are happy to work with YouTube, just as Bertelsmann was willing to work with Napster. But for every company that wants to do a Warner-type deal, there will be others like Universal that won’t stand for it. It only takes one unhappy media company — Disney, Sony, CBS, or News Corp. for example — to force the company’s hand. And the cases on this point, from Napster to Grokster at the Supreme Court, are clear.” (More from ZDNet)

Analysis:  This is the same basic argument as Mark Cuban’s.  It all rests on a copyright nuclear bomb that explodes and totals YouTube.  I can’t see the future, but I do have some doubts about the analogy to Napster.  I’ve already explained them here and here.  If YouTube were truly perceived by the business community to be the same as Napster, YouTube would have been shut down by now.  Napster was enjoined in July 2000, a little over a year after its development.  YouTube is now a year and 8 months old, and a year and 5 months since it first became public.  And not only does YouTube still exist, major businesses such as NBC, Cingular, and Warner Music have recently struck deals with YouTube.  At the same time, YouTube has a “notice and take down” policy for allegedly infringing materials under the DMCA, and has announced the future deployment of additional technological safeguards against copyright infringement. The opposite scenario to the one imagined by Mark Cuban and Josh Bernoff is that YouTube continues to attract more legitimate businesses into its growing base.   

What people like Cuban and Bernoff forget is the lesson of Blackberry:  found to be an infringer of some other company’s patents, the maker of Blackberry is still doing business and millions of Blackberry users are still using what had been found to be an infringing device.  How did the Blackberry survive even in this worst case scenario of being found an infringer?  It’s called striking a deal.

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