In thinking about the Viacom v. Google (YouTube) litigation, one thing strikes me over and over. Why didn’t YouTube work with Viacom and other copyright holders, at the outset of their business, to ensure companies such as Viacom worked with them instead of against them? When YouTube saw that their success and fortunes were really tied to copyrighted material, instead of video from Grandma’s 80th birthday party, it would have been wise to strictly prohibit copyrighted material until a workable business partnership was constructed. While there are issues with what qualifies as “copyrighted” material due to fair use and de minimus laws, the approach YouTube took – intentionally make money off known copyrighted material – seems very short-sided. Instead of making an ally out of copyright holders, much like Hulu.com has, YouTube subjected itself to litigation and the whims of a court’s interpretation of Section 512 of the DMCA.
Another line of thought, the converse of above, is why didn’t the copyright holders identify YouTube as an incredible and fast-growing technology that allowed them to easily advertise such things as upcoming movies, television shows, and the like? While it seems YouTube had a bit more incentive to work with copyright holders from the beginning, copyright holders may have missed some easy and profitable opportunities to market their products.
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