We've pointed out a few times that The Guardian newspaper in the UK is not just a believer in the value of keeping its content free online, but is also doing a lot of very interesting experiments. As we hear daily about newspapers and organizations like the Associated Press threatening to sue blogs that repost some of their content (even for commentary purposes), The Guardian is going in the completely opposite direction. As part of its Open Platform program, it has created a tool that lets any Wordpress-based blog repost any Guardian article for free. Yes, this is the complete opposite of what most publications are doing. Rather than whining about "freeloaders" and "copycats" and "aggregators," The Guardian has decided to embrace them and take advantage of the situation.
The only conditions are that you have to republish the full article in the exact format provided (including "text, links and images"). That's because The Guardian is also embedding ads with those syndicated stories. Assuming the ads are not particularly intrusive or annoying, then I would imagine that many blogs find this to be a perfectly reasonable deal. And, yes, if you were wondering, the site doing the syndication is free to include their own ads elsewhere on the page. However, according to The Guardian's explanation of this offering, you can add your own commentary -- it just needs to go above The Guardian's content.
Basically, the Guardian seems to be realizing what so many other newspapers have failed to grasp: that people republishing your stuff are helping to promote your work and spread your work in useful ways. Rather than breaking out the lawyers and the nastygrams, why not figure out a way to make everyone better off?
You may have seen some of the rather popular videos by Common Craft, which has built a rather large following based on these videos about technology and social media using paper diagrams on whiteboards. What the videos are really good at is simplifying things in a way that's easy for people to understand. For example, the video, Twitter in Plain English has received nearly 1.7 million views and is often sent around to people who are trying to understand Twitter.
Like most viral video efforts, the videos are hosted on YouTube, which makes them easy to embed and share. Except, apparently, that's not working within Common Craft's business model. An anonymous reader sent over a story about how the company has set up a new licensing scheme for embedding its videos on websites, and the fees get pretty high pretty quickly. Digital Inspiration notes that embedding one of those videos on a popular website or blog could cost thousands, since the prices are based on views. Lee LeFever, of Common Craft, responded in the comments that this was targeted at companies, rather than "bloggers." However, it's not clear if this means the videos will remain on YouTube -- in which case, companies can just embed them automatically -- or if they'll keep them off of YouTube.
Either way, it's difficult to see this working out. I'm sure some companies will pay, but on the whole, it seems to break the value chain here. Common Craft could, instead, offer up the ability to make custom videos for companies, but on its website, it says that they'd rather just focus on their own videos -- and points anyone who wants custom videos to a series of other video producers. The thing is, if you want your video to be viral, you can't also charge for it. There are three options that I can see, and none of them seem that good:
They leave the videos on YouTube as embeddable, and just hope that companies will pay them anyway.
In this case, many companies would likely embed the videos anyway, not even realizing that CC wanted them to pay up. That leads to confusion and no legal basis for CC's request. After all, it put the video on a video sharing site and allowed embedding. That seems like a pretty clear authorization to embed the video.
They leave the videos on YouTube, but not as embeddable, and make companies pay to embed
As we saw with the band Ok Go, when EMI disabled embedding for the band's videos, traffic plummeted 90%. You don't go viral if you don't allow embeds.
They stop using YouTube altogether, and don't release the videos publicly themselves
It's hard to be viral when the videos aren't anywhere online.
So with all of that, I'm still confused as to how this offering works. It seems like an attempt at the honor system to pretend that an abundant resource isn't abundant. Instead of doing that, why not focus on the scarcities -- such as creating custom videos (as mentioned), consulting (scarce knowledge) or advertising/sponsorship (selling the scarcity of attention). It just seems like other models would make a lot more business sense.
We were just writing -- yet again -- about EMI's short-sighted decision to block all embedding of Ok Go's videos (even ones that the band produced entirely on their own). This is despite the fact that it was the widespread embedding of the famed treadmill video that helped Ok Go become as well known as it has -- earning EMI a lot of money. Now comes the news of a "resolution" to the issue, as EMI will allow an Ok Go video to be embedded thanks to an as-yet-unexplained "sponsorship" by State Farm. While this shows, in some way, how different business models can step in and help pay for content, it worries me that EMI now seems to think a video needs to be directly sponsored to allow for embedding. Does EMI truly not understand that embedding is what helped Ok Go become so well known? There's no reason why they couldn't have allowed the regular embedding to remain and still have done a sponsor deal on top of it.
A little while ago, we had a rather long and heated discussion over the question of whether or not embedding/hotlinking is infringement when the original content is hosted/served from elsewhere (in an authorized manner). I cannot see a truly defensible legal explanation for how that is infringing (the content exists solely in two places -- the original server and the browser of the user, both of which are authorized). However, some lawyers clearly disagree. Over in the Netherlands, in fact, a court has disagreed and claimed that embedding is, in fact, infringement. While I think this is a poor ruling that makes little sense, there's something more interesting in this particular ruling (sent in by an anonymous reader). It turns out that, in explaining why embedding should be considered infringing, the judges plagiarized the exact wording of a blog post by a Dutch lawyer.
Now, plagiarism and copyright infringement are two different (though sometimes overlapping) things, but it does seem a bit ironic -- and even under Dutch copyright law, this bit of copying could be seen as infringement as well. Apparently, the judges directly cut and pasted the following two sentences:
"in case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience."
The exact quote above came from a blog post by lawyer Douwe Linders, who had no idea the judges were going to copy it. While it seems like a simple quote like this should be perfectly legal in any context, let alone a legal decision, the discussion of this notes that while Dutch copyright law does let you quote short bits of content from others for a variety of reasons, it requires attribution. In this particular case, no attribution was provided.
What makes it even worse, of course, is that the quoted/plagiarized/infringing bit might not even be accurate. As we discussed in our own post on the subject, there appears to be significant disagreement over whether or not embedding authorized content could be seen as infringing -- and apparently, there is a widespread debate about it in Dutch legal circles as well, saying that it is far from readily agreed upon in the legal literature.
So last week we discussed how EMI was seriously harming the ability of the latest Ok Go video to go viral, by putting on geoblocks and forbidding embedding. The band had said it was upset about this and pointed people to a Vimeo version -- despite the fact that EMI is suing Vimeo for posting music videos (um, oops) and Vimeo supposedly hates commercial content.
The band has now come out with a more detailed explanation that puts more of the blame on YouTube, while also explaining how the band gets to "snort drugs off the Queen of England" (so it's got more important things to deal with). Well, specifically, the band points out that way back when, Google agreed to give record labels a bit of money every time someone watched one of their videos on YouTube. That much is well-known, of course. However, the band claims that this little bit of money is only paid on videos that are seen directly via YouTube, rather than on embedded videos. Why? Well, because advertisers on YouTube only let ads be shown on YouTube itself, so they're not suddenly showing up on some random website (though, of course, those same advertisers probably have no problem using Google AdSense, which does the same thing, but....). So the band suggests the issue is more with YouTube and its refusal to count embedded videos in the views... though it claims it's been arguing with EMI to allow the video anyway.
This still seems backwards and shortsighted by EMI. Even if it's not getting paid for the embedded videos, it seems quite likely that the embeds actually lead to more views on YouTube itself, as people click through. Instead, now, all of the views are going to go to Vimeo. The company EMI is suing. Sensible.
In the meantime, though, Ian from Topspin alerts us to the news that Ok Go is using the Topspin platform to offer up, as a part of its "reason to buy," the uniforms and props from the video shoot. Of course, I would imagine those things would be in higher demand if EMI let people embed the video in the first place...
It helped attract a ton of attention to the band. The band's lead singer, Damian Kulash, has been quite outspoken about why bands need to be fan friendly, and even took to the pages of the NY Times to discuss the evils of DRM, and has spoken before Congress on music industry issues as well. The band has always done quite a lot to try to connect with fans and not hinder them in any way -- which is part of why it has such a huge following.
So, with the band coming out with a new quirky video, you would think that it would be readily available all over the place. However, Martin points us to the news that the video was put up on YouTube by the band's label, Capitol Records, a subsidiary of EMI, but it did so with geoblocking and with embedding disabled. In fact, if you go to the original treadmill video, you'll see that Capitol Records has disabled embedding on that video as well. Notice that I have it embedded above? That's because I used the embed code from an earlier post back when embedding was allowed. Yet now, go and click on the video... and it gives you an error message saying embedding has been disabled. All those people who helped spread that video? Capitol Records broke them all. Nice of them. It's impossible to fathom what the folks at EMI/Capitol are thinking here. They are making it more difficult to make a viral video viral. Both blocking it from being viewed in various regions and blocking embeds makes no sense at all.
As for the issue of geoblocking, we're incredibly upset that the youtube versions of our videos can't be embedded. Just one more example of major labels accelerating their own demise. We (and every individual band out there) have exactly zero leverage in this particular battle, however. So we post to other sites as well.
Of course, given that Vimeo has these bizarre and nonsensical rules against commercial use, and this is obviously a commercial video, you have to wonder why this is allowed. Oh yeah, also, it's worth remembering that Capitol Records just sued Vimeo for copyright infringement -- so I can't see the label being all that thrilled about this. Either way, the video is going up in a variety of other places in embeddable format, but not by Capitol Records, meaning that it gets more fragmented, less viral, and hurts Capitol Records. And people wonder why EMI and the other major labels are collapsing.
A bunch of folks are submitting the latest and greatest in the Associated Press's attempt to become the RIAA of news. The AP, smartly, has a YouTube channel, where it puts up a bunch of AP videos, with the embed code enabled. An AP affiliate in Tennessee reasonably embedded some of those videos... and were promptly accused of "stealing" the AP's licensed content and ordered to take it down. There are so many things wrong with this situation it's difficult to know where to start:
It's the AP's own YouTube channel.
This radio station is an AP affiliate.
The AP turned on the embedding function
When told all of this, the AP exec demanding the takedown had no idea it had a YouTube channel.
This is clearly part the right hand not knowing what the left hand is doing... but it's also a sign of how out of touch the AP remains. When it purposely offers up content for sharing, it did something smart. Demanding that anyone take down content that was specifically designed to be shared in this manner is just amazing.
While we still need to wait for the end result of the YouTube/Viacom case to learn whether hosting infringing videos is infringement itself, there's another open question about whether or not linking to or embedding infringing videos is also infringing. It seems difficult to understand how it could be infringing, as it's no different than pointing someone to freely available content (and, technically, linking and embedding are no different at all -- it's just some HTML). The person (or computer) doing the linking or embedding has no idea whether the content being linked or embedded is infringing -- and it seems reasonable to believe that if it's available online, there's nothing wrong with linking to it.
Yet, here we have the MPAA suing two sites that both link to and embed various movies. The two sites in question, FOMD (Found Online Movie Database) and MovieRumor, don't host the movies themselves. They merely point people to various movies that are publicly available online. It would seem like a rather drastic stretch of copyright law to claim that is also infringement, but don't be too surprised at how this will be argued. The MPAA will play on emotional, rather than rational, arguments -- and it may actually work, given some similar cases in the past.
The Associated Press is still insisting that bloggers shouldn't be excerpting its articles online without a license -- but apparently no one told the folks pushing AP videos. Jon Ashley wonders about this difference, noting that the AP has its own YouTube Channel, where it appears that the videos all have embedding enabled. This, of course, takes us right back to the question we asked last week concerning whether or not embedding videos can be seen as infringement. In the meantime, since the AP insists it really wants to be a part of the "conversation," can it explain why embedding videos is great, while quoting is not?