Is copyright infringement enforcement across the board the best strategy for content producers? Or, would enabling some illegal sharing actually provide a benefit? The developments in the last week or two in the various lawsuits are indicating to me that a desire to stamp out and punish piracy is trumping the potential benefits letting users push content quickly and unfettered through social networks and other "web 2.0" sites, the most compelling benefit of these sites and a key means for fans to add value to media properties. The desire to adhere to traditional revenue models, boilerplate rights agreements and, perhaps most of all, an inability to qualify the value added by YouTube users, may ultimately be more of a hindrance than a help to producers in promoting their product.
Startling revelation? Perhaps not, but it's worth considering in the context of this week's developments.
To resolve lawsuits, not least of all the $1 billion complaint brought against it by Viacom earlier this year, and protect itself against future litigation, YouTube announced this week that it was introducing a "content fingerprinting technology" that, in minutes, will screen uploaded clips for copyright and identify material that is being illegally uploaded to the site. After months of not divulging specifics about the company's plans, Google's lawyers said that the technology should be implemented by September. See Sam Ford's posts about these issues here and here.
Presumably, this will help make Viacom and other plaintiffs happy, especially if you believe that the lawsuit was really about pushing YouTube (and by extension, Google) to strike a revenue-sharing deal, and not so much about suing for past infringements, which look, from where I sit, extremely difficult to accurately quantify.
The past infringement question is a particularly interesting one that will only get murkier. Viacom and other plaintiffs, it was revealed last week, will have difficulty assessing the true number of violations and their damages in part because they cannot access clips that are private and invitation-only.
The very apt and interesting point has been made that one outcome of the case might be blurring of the definition of public performance as sharing becomes easier and easier over the Internet.
So the questions become even stickier and more complex. If I share a sitcom clip with 2 people, maybe the same number that would sit at home with me and watch it, is that infringement? What about 5, or 10, or 20? Even if it always is, is that even reasonable and enforceable? If private sharing stays in its current state, intact, there's no way of even knowing how many infringing clips there are anyway. We cannot measure eyeballs on a private YouTube clip for advertisers, so it is just assumed to have no value.
Back to the question I began with: is copyright enforcement across the board the best thing for the content producer and why would it NOT be worth enforcing? Not necessarily. Again, it's about metrics as much as copyright. If those people I share a clip with love it and decide to watch the show live on television or buy it on DVD, I'm actually helping the producer to disseminate and profit from the content, so why even try to enforce copyright on limited distribution file sharing? In fact, by limiting the distribution, the user is actually sending the clip to specific people who he or she thinks will like it, free of charge - a target audience, for free. It's actually benefitting the producer in that case, but the problem is that we cannot measure that benefit. If we could, I think there's certainly an argument for economic value of the user's activity.
Another example, this time with wider distribution. You Tube includes in its partial list of copyrighted material you shouldn't upload, which includes movie trailers. I understand that there are copyright restrictions on trailers, but if people can upload, remix and tag them, I would expect that it would only encourage sharing and discovery, whether they are private or publicly available.
Often, on YouTube, I run across a trailer because it was uploaded multiple times by different people and it shows up as a related item. Of course, media companies could create multiple profiles themselves, but why? Why not let users do that work, putting their name (and, by extension, their stamp of approval) on your product as they promote it to their friends? Why not change the terms of copyright agreements with artists to enable this type of distribution? By instituting blanket bans on this type of content, producers are depriving themselves of one of the strongest benefits of marketing through these sites in the first place.
Again, revenue models, legal constraints, and inadequate metrics seem to be the primary culprits in this situation. So too, however, is the perception of the individual who uploads this content. Freeloaders and pirates? Maybe some are, but there are scores of others who are a fast, stealthy, and efficient marketing force that adding value yet is not valued by producers because it cannot be quantified. Perhaps it is something worth trying?