YouTube Motions Highlight How Entertainment Industry Lawsuits May Have Slowed Useful Platforms

from the letting-business-models-develop dept

We've already written up an analysis of the motions for summary judgment in the Viacom/Google YouTube lawsuit, suggesting that Google's arguments seem stronger. It still seems unlikely that either motion will persuade the judge to skip a trial altogether, but the motions are certainly a bit of a preview of what to expect at any trial. Most of the analysis out there sort of reiterates the talking points in the two motions, but Eric Goldman highlighted an important point that got me thinking in that time is working against Viacom here, as YouTube becomes more and more entrenched as a useful platform by the day:
Perhaps more importantly, the intervening time has been good to YouTube as a business and as a brand. In this sense, compare Grokster to YouTube. At the time of the Grokster cases, it was still very much an open question whether Grokster would ever evolve into a tool where legitimate activity dominated. While we might still have had that same question about YouTube in 2006, by 2010 YouTube has answered that question resoundingly. YouTube's business practices have matured, everyone has had positive legitimate experiences with YouTube (even behind-the-curve judges), and it's clear that major legitimate players have adopted YouTube as a platform for their legitimate activities. For example, YouTube's brief makes the point that all of the 2008 presidential candidates published YouTube videos as part of their campaign. I'm guessing no 2004 presidential candidates used Grokster for campaign purposes.

So as time goes on, YouTube solidifies a brand as a legitimate part of our information infrastructure. As we learn that the YouTube story has a happy ending, I suspect judges become less interested in punishing YouTube for past practices. For this reason (and others), I thought a lot of Viacom's inducement arguments ran hollow because they ran counter to my brand impressions of YouTube. I would also note that Viacom appears to be giving up its litigation over activity after May 2008, so even Viacom seems to be happy with YouTube in its current form.
Goldman goes on to point out that this may bring up some challenges heretofore unfaced in determining how the "inducement" standard works -- but, to me, it brings up an even more important issue: similar lawsuits against Napster and Grokster moved faster. Lots of people have commented on the fact that this particular lawsuit has taken three years from filing just to get to the summary judgment motions to be filed -- and during that time, Goldman is correct, YouTube has had a chance to mature, refine its business model, and do many things that we now find to be quite beneficial to society.

The same thing likely would have happened to both Napster and Grokster, if they had been given a chance to live. Executives behind each company repeatedly laid out strategies to mature their business models and to work as partners with the industry. It's just that they never got a chance to put those into practice because these sorts of lawsuits and rulings from judges forced them (effectively) out of business. In YouTube's case, the slow pace of this particular lawsuit has allowed it to firmly establish tons of viable, useful, valuable non-infringing uses -- to the point that it's a platform used by tons of companies, politicians, individuals and more. If Napster and Grokster had been given half a chance, they likely would have been able to evolve similarly.

And this is what is so painful about watching all these attempts by the entertainment industry to kill off any new technology that disrupts an old business model. These lawsuits kill off those technologies before the natural progression and maturation is allowed -- and because of that, we all suffer.

Now, some will scoff and claims that Grokster was never going to turn into what YouTube is today, but you're saying that with the gift of hindsight. A large part of Viacom's motion tries to suggest that the two companies actually were quite similar -- but even Viacom is now admitting that YouTube's business model was able to mature and adapt. Considering that we still don't have music discovery, promotion and distribution tools as convenient as Napster was back in the day, this can be seen as a real shame. These lawsuits killed off a useful path of exploration for legitimate business models, and that's not only shameful but a waste of innovative effort. It's only through the random quirk of a slow court that YouTube may avoid suffering the same fate.

Filed Under: copyright, innovation, lawsuits, platforms, stifling
Companies: google, viacom, youtube


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  1. identicon
    Anonymous Coward, 19 Mar 2010 @ 7:47am

    Someone should re - open "napster" and put some effort into blocking all known infringing content. The Napster replacement can have instant messages and chat rooms and song descriptions and a place so that new artists can even put comments and lyrics upon double clicking on a song before opening it. If the server admins put some effort into blocking copyright material, though the system certainly will not be perfect, I'm sure a judge will be more sympathetic. While I don't agree with current copyright laws and think they're absurd and a result of a corrupt government and corrupt corporations, the fact is that most people used Napster for piracy and there was little to no indication that the people who ran it put any effort to stop the piracy (and sure, they shouldn't have to, we shouldn't have broken laws that have such requirements that hinder innovation and artificially increase prices to consumers and add undue burden to innovators just to help evil monopolists the way our current laws do. The real reason Napster got shut down is probably because the RIAA saw it as a platform that can eventually be used to help people compete with them by releasing free CC license music in the long term, not because it harmed their short term sales. About the only time I have ever bought music was when Napster was around, I stopped buying music after they got shut down).

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