01:44 AM

Koman: Why copyright violations don't matter

In the aftermath of Napster, it seemed there was a war between copyright holders and technologists. Technologists would come up with what was possible and Hollywood would say that is a crime. In the Napster years there was something legitimate about the Hollywood argument - people are simply taking goods that are intended for sale.

But Hollywood wanted to stop more than just downloading, they wanted to stop any unapproved use of copyright material. That's the battle Larry Lessig has been fighting - the right to mashup. Here's what he said in an interview I did with him in 2005.

If you think about the ways kids under 15 using digital technology think about writing--you know, writing with text is just one way to write, and not even the most interesting way to write. The more interesting ways are increasingly to use images and sound and video to express ideas. Well, all of those ways of writing under the law as it's understood right now are basically illegal unless you secure permission from the author up front. So the same act of creativity in some sense, you know, taking, creating, mixing out of what other people do, is legal in the text world and illegal in the digital media world. And the struggle is to get people to recognize that there's no good reason for the rules to be so radically different between the two contexts, and that we ought to be encouraging a wider range of creativity using digital media--both because there are many people who would be extraordinarily talented in exploiting those types of creativity, and also because it would really spur growth in collective literacy about how media itself functions and how it has its effect.

The legal battle, however, has been a loser. The Eldred challenge to copyright extension laws lost in the Supreme Court. Grokster lost in the Supreme Court. Legally speaking, copyright owners have every right to protect their government-granted monopolies. Third parties have no right to share, distribute, download or otherwise traffic in others' intellectual property.

Fast forward to YouTube and the Google deal. There's a lot of commentary about Google exposing itself to a rash of copyright troubles because YouTube is allegedly rife with other people's content. Here's Mark Cuban today, for instance:

I still think Google Lawyers will be a busy, busy bunch. I dont think you can sue Google into oblivion, but as others have mentioned, if Google gets nailed one single time for copyright violation, there are going to be more shareholder lawsuits than doans has pills to go with the pile on copyright suits that follow. Think maybe how Google discloses what they perceive the copyright risk to be in the SEC filings might be an interesting read ?

Here's the thing. Nailing copyright violators is a game of whack-a-mole. Digital technology from cellphones to TiVO to YouTube make it far too easy to capture and share digital content for the copyright police to stop it from happening. And there's no reason to do so - users who upload copyright content from TV are engaging in the large-scale, free viral marketing for this content.

So the YouTube deals with CBS, Warners, Universal and Sony are notable for two aspects:

  • The labels are permitting users to perform mashups on copyright music video content.
  • CBS may decline to force removal of its copyright content and simply place advertising on it.

Every marketer needs to know what consumers are interested in. Social networking sites are amazing engines for tracking exactly that. If you can get marketers running the show instead of lawyers and accountants, the world looks incredibly different.

The marketers in fact have already figured this out. I lost the article, but I saw a quote from a Sony marketing VP that said, "Users are interacting with our artists and product on YouTube and we need to be part of the conversation."

This all goes back to Doc Searls' "conversation" meme: Blogging is a conversation, news is a conversation, and music, movies and TV are also conversations.

Where lawsuits have failed, new technology and business models will succeed. Media companies will find a way to continue to prosper, I think, because they will enable consumers to morph into commentators and creators and back to consumers - and, most importantly, they will be able to make money in the process.

I don't see an obvious way for newspapers to do the same. Reporters can become bloggers, but it's not obvious to me how bloggers can enter the news organization and how the business model can be transformed to monetize the change-over. Perhaps technology will provide an answer there, too, but I can't see from here.