YouTube Begins Defense, Seeks Depositions

eldavojohn writes "YouTube has begun their defense against Viacom by first calling on 30 depositions from people like Jon Stewart & Stephen Colbert. While the article mentions that YouTube has not revealed what they hope to gain in these depositions, I think Jon Stewart's opinions will weigh in favor of YouTube. Comedy Central's parent company, Viacom, objects to YouTube's hosting of their content. Comedy Central hosts many Daily Show & Colbert Report clips on its own site, bringing in its own ad revenue."

Comments

It's a Tactic

[vjmurphy]

You ask to depose a number of people, hoping that the inconvenience of the process will force the other side to back down. That's why Comedy Central has the Google founders on their deposition list. It's lawyering.

Re:It's a Tactic

[beakerMeep]

But it should be (and maybe is?) an illegal tactic. Calling a defendant to the stand and everyone that defendant knows or had contact with just to troll for evidence and harass/intimidate the defendant could land a lawyer in contempt i would bet. I gather the blurry line is in deciding as to how much constitutes harassment.

Re:It's a Tactic

[megamerican]

In this particular case you may not be entirely correct. Stephen Colbert held a contest called Stephen Colbert's green screen challenge, which had viewers take stock footage of colbert messing around with a lightsaber and edit it in any way. The submissions were supposed to be made on youtube, not on any hardware Viacom provided. Submissions of the contest were regularily shown on the Report for over a month.

Both the Daily Show and the Report have used youtube in many ways to poke fun at it and use it for their show. Since Stewart and Colbert both have much to do with their shows content creation, it fits that they might be deposed.

Re:It's a Tactic

[ajs]

You ask to depose a number of people, hoping that the inconvenience of the process will force the other side to back down. That's why Comedy Central has the Google founders on their deposition list. It's lawyering. Probably not. The goal, here, is to discover exactly what's going to come out in court. Obviously the folks involved with The Daily Show will have information about the impact that You Tube has had on the show, how ratings have been doing, and so on.

Google needs to make the case that brief exposure to copyright violation (while Viacom staff hunts down the content and issues formal complaints to You Tube) has not had a negative impact on the programs that have been infringed. They also need to show that they've been prompt in responding to concerns about copyright violations on their site.

If they can make those two points, they'll have a start to a workable case. The real question is how much effort Google can realistically be asked to put in to make sure that their users don't upload copyrighted material. The answer to that question will have far-reaching impacts on every site (mine included) that allow users to contribute their own content whether text, audio, video or something else.

Re:It's a Tactic

[larry bagina]

this is a "deposition". Before the trial, there is a process called "discovery" where lawyers interview people who might have relevant facts (or sometimes they submit a written deposition). There's a lot more leeway than when calling a witness at the actual trial.

Re:It's a Tactic

[fastest fascist]

What you say seems to imply they're being deposed to provide backup for a claim by the defendant that no breach of copyright has taken place. That would be an interesting position for Youtube to take, but I don't see it being one they could defend. Allowing a clearly described subset of material to be spread freely does not mean the copyright holder grants permission for all their content to be spread, and I doubt any such claim will be made. The best argument that could be drawn from the way the copyright holders have used Youtube in their shows is that they granted usage rights to some material, and that having their material on Youtube was good for their business. Maybe, just maybe, Youtube could even claim unauthorized use of material distributed on their service, although that would be pretty facetious. A copyright owner is, in any case, entitled to make bad business choices if they wish to do so. I don't see this angle being much more than diversionary tactics, and I'd suspect the real question is to what degree Youtube as a company is responsible for material posted by their users.

Re:It's a Tactic

[HUADPE]

They can use it to allege unclean hands. If Viacom is taking Google IP, and Google is taking Viacom IP, neither might be able to successfully sue. http://en.wikipedia.org/wiki/Unclean_hands

Re:It's a Tactic

[ajs]

Is real-world impact actually a consideration in copyright cases Sort of.

Google is contending, I believe, that they do what they can do police their users by allowing them to police themselves, and by responding to copyright holders who have complaints. Showing that doing so has limited any financial loss to the copyright holder could make the point that they're doing a sufficient job, even if, at any given time, you can find something that violates copyrights on You Tube.

This would not work for someone who was actively violating copyright (say, distributing a song on your own Web site), but when you're a service provider, there has to be some reality-check for the fact that you simply can't police all of your thousands or millions of users all the time... you have to show a good faith effort and work with the copyright holders to a reasonable degree, but ultimately, it's just not your fault that little Timmy uploaded an episode of The Daily Show.

Is there any doubt?

[Otter]

While the article mentions that YouTube has not revealed what they hope to gain in these depositions...

Probably they're hoping that Colbert will raise his eyebrows and bug his eyes out during his deposition. Then they can put the footage on YouTube and rake in viewership from all the Colbert fans: "Look, while he said that he raised his eyebrows and bugged his eyes out! It's funny because he raised his eyebrows and bugged his eyes out!"

From the (Wrong) Horse's Mouth

[Stanislav_J]

I'm pretty sure both Stewart and Colbert have previously stated that they were pleased to see clips of their shows on YouTube, as it could only generate publicity and drive more viewers to the show. Unfortunately, neither gentleman holds the copyright to the shows, so their opinions might not carry much weight in this case. They may be the stars in front of the camera, but they are still basically employees.

Re:From the (Wrong) Horse's Mouth

[Major Blud]

Yes, people are going to come out and say that they should be considered heroes for standing up to Viacom and caring about user content on YouTube...but the truth is that they are employed for Viacom. If they really cared that much about their stuff being able to show up on YouTube, they would both quit Viacom and go exclusively web-based. This won't happen, and these guys are going to stay with whom their paychecks come from.

Re:From the (Wrong) Horse's Mouth

[toleraen]

If they quit Viacom, it'd be kinda tough to get any more Daily Show or Colbert Report on the web, wouldn't it? They don't care about having their content "free" (as in speech) on YouTube. They want it on there "free" (as in beer) to generate a larger audience. They understand that if you give some users some free content, they'll be more likely to watch the show 'live' on TV when it first airs.

I know for me, watching Lazy Sunday on YouTube brought me back to checking out SNL again for the first time in several years...maybe that's just me though.

Re:From the (Wrong) Horse's Mouth

[kebes]

True. However I doubt YouTube is going to be using their testimony as a means to show that no copyright was infringed. After all, explicit (usually written) permission is required for copyright to be truly licensed. However they can claim that the public opinions of these spokespersons makes it somewhat difficult for YouTube to know whether or not the posted clips were sanctioned.

They may also be using them as "expert witnesses" who can comment upon the economic impact of the infringements. If these witnesses explain how the short clips act as publicity and largely increase the value of the copyrights in question, then this goes a long way to supporting the notion that (most of) the infringements are not damaging Viacom. The fact that the expert witnesses are, in fact, essentially employees of Viacom will not be lost on the judge.

Further, these witnesses can attest to the large amount of user-generated (non-infringing) content on YouTube. Colbert makes reference to YouTube and his fans post many parodies and fair-use remixes of his shows.

Remember that YouTube isn't really denying that some YouTube clips are infringing. Rather, they are trying to show that YouTube has a preponderance of non-infringing (user-generated) content, that they are making every reasonable effort to discourage uploading of infringing material, and that what infringement does slip past their system is not greatly damaging Viacom.

Re:From the (Wrong) Horse's Mouth

[Rakshasa Taisab]

Yeah, it's thanks to all those those clips on Youtube that i started regularly watching The Colbert Report, which I get from mininova.org.

Re:From the (Wrong) Horse's Mouth

[dunezone]

Their not employees, their the salesmen of the company. Next to Southpark, The Daily Show and Colbert Report are next on the list of Comedy Centrals biggest assets when it comes to pulling in viewers. Almost every night those two men go on and sell the show to us so that the next day we come back to watch again.

What Google is doing now is getting these "employees" on their side so that they can use them against Viacom later on. Will it help? I don't know but look at the Southpark situation right now. Trey Parker and Matt Stone were not pleased by Comedy Central and Viacoms actions when they censored their shows. When 2009 comes around and they sign the contracts again Trey Parker and Matt Stone will have the power on the table hands down. The last time the contracts were on the table it was rumored they might go to HBO.

Far fetched scenario is that Google/Youtube manages to get these employees pissed off at their company. Instead of just ignoring all these little clips at low quality will end up costing them millions in contracts, lost revenue, and who knows what else.

Its just one of many tactics that Google/Youtube will use.

Re:From the (Wrong) Horse's Mouth

[NMerriam]

Unfortunately, neither gentleman holds the copyright to the shows, so their opinions might not carry much weight in this case. They may be the stars in front of the camera, but they are still basically employees

That's not necessarily correct, nor is it entirely the point. First, the contract details aren't known about either show, but the Colbert Report was created by Stewart's production company and the degree of their ownership may well be significant.

The point of them testifying, though, is to undercut the notion that Viacom is acting to defend the ability of creative people to get compensated for their work -- the entire purpose of copyright.

Yes, we're all used to the cynicism of the RIAA/MPAA saying they're standing up for "the artists" while none of the money they collect actually goes to the artists, but it is an important thing to knock that moral high ground out from under their feet in the legal proceedings. If all the creators involved actually state for the record that they have no problem with YouTube, then Viacom has to argue strictly from the financial angle, and there the waters are much, much murkier as they'd be dealing with a lot more unknowns about what real damage is being done to the market for their product.

Have anyone tried to use Comedy Central's video?

[Weaselmancer]

It's not worth it. Slow, laggy performance and you have to wade through pages of premercials before you get to the crappy player. I've tried it a few times and it's such a lousy experience I don't bother anymore.

They should simply strike a deal with YouTube, take a percentage of ad revenue from pages with Comedy Central clips on them - and let the pros handle the video.

Colbert's Deposition

[prxp]

Colbert's Deposition:

Jugde: Overruled! Let the witness answer the question.
Colbert: Nation, there's no problem about people adoring me on youtube. That's only natural.

I've always wondered how Stephen Colbert would behave in real life.

Re:Colbert's Deposition

[Nasarius]

There's been a couple NPR interviews with Colbert, where he's obviously not in-character. Here's one, pre-Report: http://www.npr.org/templates/story/story.php?story Id=4464017

He also hosted an episode of The Daily Show a few years back, and you can see the real Stephen interviewing David Cross.

I swear...

[veganboyjosh]

to tell the truthiness, the whole truthiness, and nothing but the truthiness.

Because they're entertaining

[iabervon]

Obviously, they want Jon Stewart and Stephan Colbert's depositions because it's going to be really funny and make Viacom's position look stupid. Frankly, I'm surprised that more people don't depose Jon Stewart just to get snide commentary that will play well in front of a jury. In this case, it's even relevant so the jury could end up hearing it.

Re:Because they're entertaining

[Volante3192]

Jon Stewart can be very serious as well. Should check out his appearance on Crossfire. It's brutal.

Re:Why don't........

[moderatorrater]

People could just edit the ads out, so there's no guarantee they would stick.

Objection: relevance?

[MBraynard]

I recently was arrested for stealing a hamburger from McDonalds. McDonalds has a new get-tough policy lately because of this growing trend of 'hamburgling.'

My lawyer has suggested - quiet brilliantly - that I subpoena Roger. Roger is the guy who works the register at the location where I've been hamburgling. He sometimes sweeps the floor. His IQ is around 75 and he has worked there for over ten years. He really knows the restaurant business because of all of that experience.

Roger agrees with me that the hamburgers cost too much and are of too low quality to pay for. He also thinks that having me come into the store in my hamburglar outfit excites the customers by giving them a little drama in their supersizeme lifestyles - so they are more likely to return and eat more. A testament to my success is that since I have been working that golden arches, on-site cardiac arrests and ambulence visits from all the McD customers have triped. Toilets overflowing incident reports have quadroupled.

We think we can get Roger to testify on my behalf that my hamburgling is actually helpful to McDonalds and that I'm not stealing anything of much value anyway.

Robble Robble.

Re:Have anyone tried to use Comedy Central's video

[abes]

That's the thing that gets me. The amount of effort they put into lawyering could easily be fixed otherwise by making a page that works. And why don't they include whole episodes? It's not rocket science. It's a really simple formula to follow. First take content, then put it on the fucking page, ordered chronologically. Oh, and yeah, please make a decent player.

The thing is, people are lazy. People will watch advertisements. Youtube doesn't usually have entire episodes, the episodes vary in quality, and it can sometimes take a good amount of time to actually find. If they just put the content where people want it (remember that whole economics thing, with supply and demand?), then why not provide it? You can even make money on it. Really.

Not to mention of course, Youtube helps gain popularity for the show. Something called advertisements. Something most companies have to spend a lot of money on.

Great idea

[Bombula]

[From the executive offices of Viacom and Comedy Central]

"OK guys, I've got a great idea! There's this company out there on the interwebs called youtube, and they're owned by Google, and they get tens of millions of visitors every day. Now they're willing to host our videos - get this - for free!

So here's my idea: let's put our videos on our own website instead! That way, we can pay for all our own web design, site maintenance and bandwidth, we can make sure that the interests of the advertisers who finance us go unserved thanks to our site getting just a tiny fraction of the traffic youtube gets, AND we can piss the whole world off in the process! How can we lose!?

Maybe

[PJ1216]

Maybe YouTube is trying to prove that its not causing harm to other businesses. Jon Steward and Stephen Colbert can talk about how they've spoken highly of YouTube and yet they haven't seen any drop in ratings that can be attributed to YouTube. I mean, if they can prove they're not causing damages, Viacom may have a difficult time pursuing $1 billion dollars in damages.

Hopefully though, they'll still try to use safe harbor laws in their defense. I think they have a much stronger case there.

Opinions change

[gorbachev]

"I think Jon Stewart's opinions will weigh in favor of YouTube."

I wouldn't count on that. I bet Mr. Stewart will be thoroughly "briefed" by Viacom Corporate Counsel prior to the deposition about what's an appropriate response in behalf of Mr. Stewart's employer.

Re:Opinions change

[drivinghighway61]

Viacom needs Jon Stewart more than Jon Stewart needs Viacom. Think about it. If Jon was fired from his job at The Daily Show, he would immediately be signed by a rival to Viacom. I don't think he really has much to worry about other than speaking his mind. At the very least, he might make Viacom look good for hiring an intelligent man.

Re:Opinions change

[LunaticTippy]

It doesn't really matter who needs who. There is a contract that doesn't expire until next year. There have been rumors that NBC may try to hire Jon Stewart to do late night, and an alleged dinner with the head of NBC, Jon, and his agent.

Given how popular his show is, I would be surprised if there wasn't a bidding war for him once his contract is up.

Re:Why don't........

[kebes]

Exactly. The sooner the content industry gives up on this obsession with complete control, the sooner a viable business model will emerge (and by "viable" I mean "fits with the internet").

Yes, some users will edit-out the commercials. Others will skip past them. It doesn't matter. A very large number of users won't bother skipping the commercials (if they are sufficiently short and not too frequent). And, if you make the shows very easy to find and download, users won't bother looking on P2P sites for the equivalent commercial-free version.

The key here is to make the experience for the consumer sufficiently convenient that they no longer feel the need to overcome "the system." When commercials are annoying, people learn to circumvent them (e.g. adblock on webpages, record and fast-forward for video). When commercials are "good" (sufficiently short, infrequent, and maybe even entertaining), people will watch them.

Doesn't even work

[Bombula]

Comedy Central's video isn't just crappy, it doesn't work. Starting about two weeks ago most video clips have not been watchable because the menu for selecting them is messed up.

Stephen Colbert?

[BobNET]

Oh please! No one post this on YouTube!

Re:Have anyone tried to use Comedy Central's video

[RealGrouchy]

While the "MotherLoad" player sucks, I watch the Flash feed version on each of the shows' main pages every day that they're available, usually in a corner on my desktop at work. I have flashblock on, so I only turn on the flash video that contains the video, and the clips just play in order they appeared on the show.

Occasionally, there's an annoying ad, but I just mute it for the 15 or 30 seconds that it plays, then turn the volume back on.

For me, it's a lot easier than having to search through a bunch of YouTube clips to find the right ones from the right day, hoping that I don't get one that duplicates one I've already seen, or get one with the volume really low, then the next one uploaded by someone else with the volume way up high.

Given the price, I'm satisfied with ComedyCentral's offerings (though I'd appreciate a more complete set of clips, since I have no TV!)

- RG>