January 30, 2007
Fox Issues Symbolic Subpoena to YouTube

The question isn't what big media company has a gripe with YouTube but rather which one does this time. Now, it's Twentieth Century Fox getting the lawyers lined up to contend with Google over episodes of 24 and The Simpsons being pirated through YouTube. In this case, they even have a pretty substantial gripe, as the episodes of 24 aired before the season premiere and, at least in their minds, deflated the aura around the premiere.

YouTube acted quickly after a response from Fox earlier this month, pulling down the content in question. That tends to be YouTube's policy. However, Fox wants more. As you may have heard, they've issued a subpoena to the company demanding the name of the users who uploaded the pirated content with the intention to litigate.

The question now is what YouTube will do. According to the company's own privacy policy, users are warned that the company "may release personally identifiable information" if the law requires them to do so or also "in the good-faith belief that such action is necessary to comply with state and federal laws (such as U.S. Copyright Law) or respond to a court order, subpoena, or search warrant."

However, just because YouTube can give the names up doesn't necessarily mean they will. The question is whether YouTube has the same rights as a lawyer, doctor, priest, or journalist and whether the company sees its users in the same way those other professions see their clients, patients, parishioners, or sources.

YouTube isn't the only company facing the wrath of Fox, as the Web site Livedigital.com was given a similar subpoena.

Part of the gripe is that Fox is offering these shows in their entirety elsewhere on the Web, as MySpace is streaming the first few episodes of 24. However, the more substantial argument is that the company has lost some perceived value of the "Event TV" status of the two-night premiere. The first two hours of the sixth season of 24 aired on Sunday night, and the next two hours were broadcast the following Monday.

"Online video sites have cooperated when studios and content owners request that unauthorized video be removed," said Daisy Whitney of TelevisionWeek. "The Fox subpoena represents a new step in the online video piracy battle as networks and studios start pursuing individuals."

This is definitely a different response compared to Linden Labs' decision to give parody site "Get a First Life" a proceed and permitted notice instead of "cease-and-desist." But this is also a much different situation.

I wrote earlier this month about the differences between quoting and piracy and why these two activities should not be lumped together. The problem I see is that the industry has too often equated piracy with clipping from or quoting from their sources, or else providing mash-ups. These types of activities come from very different intentions, one to merely pass content along for free, while the other involves a layer of creativity from the user in selecting the clip or creating the mash-up.

At the time, I wrote:

The trouble is, in order to resist setting the precedent to allow too active use of its copyrighted material, companies' responses have been to discredit the whole process and instead think of ways they can safely put content up on the Web, where they are in control. However, these are two very different behaviors--one quoting from a pop culture source and the other just plopping a copy of that source up on the Web in full. [ . . . ] A mash-up, in my mind, is one of those quoting abilities, just like showing a clip from a show to make a point. These make vibrant marketing tools, as they show enough content from your show to whet others' appetites (if the show's good, anyway), without users being able to plunk the whole show up for free. I think people very well should be upset about piracy, but quoters are not pirates. [ . . . ]

Why can't lawyers work toward developing a legal distinction between these two behaviors? The mash-up and the quote are the fans' expression, and I do not see why visual and audio material should have a different precedent set than text. Quote away from these textual artifacts--it should fall well within reason for fair use. The ability to quote is imperative for fostering the correct balance between fan communities and shows, and both sides must show respect to the other if they want to develop the type of relationship most poised to take advantage of our contemporary convergence culture.

Meanwhile, Maya Reynolds points out that, by taking the content down, YouTube should be exempt from liability themselves but subtly questions whether protecting users will remain in Google's continued business interests.

The question at the bottom of all this...just who is ECOTotal, the user who posted these shows on YouTube? And Jorge Romero over on LiveDigital. (In the case of ECOTotal, the P2P Blog points out that discovering his identity isn't really that hard.

Dean Simakis at The Answer May Surprise You makes a good point when writing:

The answer may surprise Fox, if they think this brings them any closer to revealing who leaked the premier in the first place, or to preventing future digital piracy.

The real source of the problem for Fox is the leak itself, which points directly back to sources within the company. The only reason ECOTotal and Romero had access to the premier is that the four episodes were posted to BitTorrent sites three weeks ago, by the well-known pirate collective AsiaTeam. And it's not the first time such a thing occurred; the premiers of the current Simpsons' season1 and the previous season of 24 were also available on BitTorrent trackers prior to their air date.

And folks from Piers Fawkes to Keith Regan are likening the move to the music industry's response to having its content shared online.