LYNN NEARY, host:
This is TALK OF THE NATION. I'm Lynn Neary, in Washington. Neal Conan is away.
Anyone with an hour to spare and a computer knows the joys of YouTube, a tangle of videos, from the sublime to the ridiculous; from O'Reilly sparring with Letterman to campaign commercials and amateur anime. But the more popular a video becomes, the more likely lawyers will take notice, and before you know it, your YouTube favorite has been yanked.
As anyone who ever crawled around the hidden pathways of Napster knows, technology is often several steps ahead of copyright law. And the advent of the YouTube generation has made the protection of intellectual property an almost quaint concept. From the heavy-hitters like Comedy Central and network TV to the little guys having fun with Diet Coke and Mentos, we're in a new world of copyrights and wrongs. This hour, copyrights and the next generation of the Web.
Later in the show, we'll talk about the new findings about breast cancer and red meat. And we'll take your questions on breast cancer risks. But first, intellectual property in the Information Age. We want to hear from you. How do you use sites like YouTube and the material they make available? And do our existing copyright laws still work in the way we use video-sharing sites in our daily and artistic lives? Our number here in Washington is 800-989-8255. That's 800-989-TALK. The e-mail address: email@example.com.
And now joining us is Jason Fry. He's an assistant managing editor at The Wall Street Journal Online, and he joins us from our New York bureau. Thanks for being with us.
Mr. JASON FRY (Assistant Managing Editor, The Wall Street Journal Online): Thanks for having me.
NEARY: Let's start out with having you describe what you call the YouTube curse. What's that?
Mr. FRY: Well, the latest incarnation of the YouTube curse, for me happened - I read a column last week by Bill Simmons of espn.com fame, and it was a column that I had missed the first time when it ran back in June, and it was coming back around. And the minute I saw the words YouTube in it, I thought, oh, no, because I just knew what would happen.
NEARY: Well, the irony is - particularly in the case of say the networks, where clips of let's say The Letterman Show might be up on YouTube for a while - getting the networks some free publicity - but then they pull them for copyright violations. I mean there's a double standard going on here sometimes.
Mr. FRY: Yeah, YouTube and the major media companies, I like to say they have a complicated relationship. And, you know, for instance, one of the first YouTube hits was Lazy Sunday, the skit from Saturday Night Live. That, to a lot of people's minds, really made Saturday Night Live vital again. And, you know, that clip was on YouTube for a long time, then it was taken down. But this happens again, and again, and again.
You have, you know, record companies looking the other way as videos on YouTube become viral hits and asking other things to be taken down. You have clips becoming very popular for The Daily Show or Letterman or anybody else or - while others are being taken down. And, you know, a lot of - anyone who has ever been in a complicated relationship knows that they tend to go on for a while and then get awfully simple…
Mr. FRY: …usually because they've turned bad. And I keep waiting for to that with YouTube.
NEARY: You think it's inevitable?
Mr. FRY: I wouldn't say it's inevitable, but it's certainly what in another context might be called a clear and present danger, if that's not a copyright violation to use that term.
NEARY: Well, what makes YouTube so revolutionary in the first place? I mean what makes it different from anything else that was out there? Or is it? Are there other things that are equivalent to YouTube?
Mr. FRY: I think the - what makes it so revolutionary is it's one of those Internet moments where something that used to be hideously difficult, to the extent that you didn't do it, all at once, almost overnight, became easy.
Video just used to be a terrible experience on the Web. You, you know, it - files wouldn't load or you'd be told you need software or you'd wind up seeing the dreaded word buffering. And almost overnight, YouTube made that go away. It was - you saw video on Web sites, and you weren't afraid to click on it. If you're a Web site designer, you weren't afraid to use it. And that was just a remarkable change in opening up the promise of video. And yet, you know, as you stated, the technology's ahead of the law, and the law may catch up with a vengeance here and put things back.
NEARY: And just refresh my memory. How long has it been around, you know, because these things come through in an instant.
(Soundbite of laughter)
Mr. FRY: It has been around - it's been around for several years. I mean this has really been the year of YouTube.
NEARY: Yeah, this is the year that everybody's become aware of it, somehow.
Mr. FRY: Right, right.
NEARY: But it has been around for longer than that.
Mr. FRY: Yes.
NEARY: So as it…
Mr. FRY: So like a lot of Web things, it's kind of risen up as - and become a cult phenomenon, and now it's an absolute mainstream.
NEARY: And as soon as it went from being something that maybe a few people knew about to being a cult phenomenon, that's when these copyright questions come to bear.
Mr. FRY: Yeah, and it's one thing that I think has to been seen with the future of Web video. I mean YouTube has a large, very muscular owner now, in Google.
Mr. FRY: That gives it some protection. However there's nothing to be said that - there's no reason that YouTube may be squashed out of existence by litigation. But if that happens, what is inevitable is that another site, another technology, will rise up in its place and the same thing will happen over and over again. And as we untangle the thicket of legal issues here, I think we really have to ask ourselves is that the best way for this happen? Is that what we really want?
NEARY: Right, let's see if we can get a call in here from Bjorn(ph) in Cincinnati, Ohio. Hi, Bjorn.
BJORN (Caller): Hi.
NEARY: Go ahead.
BJORN: I just wanted to say I'm a teacher in Cincinnati, and I actually - I use YouTube in my drama class to help teach my kids about acting, and I get videos from Saturday Night Live and other skit shows to help show them how to act and how to create skits for my class. So I think it's - you know, I love using it. And, yeah, it's probably violating some copyright law, but it makes my life a lot easier instead of having to buy all these DVDs to be able to show my kids how to do something.
NEARY: All right, thanks so much for calling, Bjorn.
BJORN: No problem.
NEARY: So there is an example of somebody putting YouTube to good use for students, and yet possibly violating copyright law as he's doing it. I mean are the majority of the clips that you see on YouTube, are they all copyrighted material? They're not, right? I mean some of them are just amateur videos.
Mr. FRY: No, not all of them. And one difference between YouTube and Napster is - I mean there really is genuinely popular content on YouTube that is - that poses no copyright danger. However, it is certainly true that YouTube would not have the mass audience it has - and certainly wouldn't have attracted $1.65 billion in money from Google - without a lot of material that is copyrighted and is owned by people other than the people who are putting it on YouTube.
NEARY: How does Google plan to deal with this copyright issue?
Mr. FRY: That's a very interesting question. In fact there have been rumors in blogisphere that Google has a half billon dollars set aside to buy peace with content companies over this issue. Eric Schmidt of Google, said last week, that that wasn't true. And it should be noted that YouTube itself is trying to play ball. I mean they do take videos down very quickly when asked to do so. They are striking deals with a number of media companies. But, you know, in the realm of litigation and technology, it can only take one holdout to change everything.
NEARY: Yeah. So Google is acknowledging - and if it has this fund that you say is rumored - it knows that these copyright issues are going to be difficult to deal with.
Mr. FRY: It certainly does. And Google has fought this battle before. In fact it's still fighting it with something called Google Book Search - where it went to make the text of books available for searches so that you could see snippets of a book or larger amounts of a book if it's in the public domain.
And that's been an interesting issue. The publishers and some authors' groups are very upset about that. And that's a drama that continues to play out. So Google has some experience in this. However, it's not true that it has universal goodwill among content owners. In fact, probably the opposite based on what's happened with books.
NEARY: All right, let's take a call from Kareem(ph), and I want to remind our listeners that if you'd like to join this discussion, the number is 800-989-8255. Let's go to Kareem, and he's in Rockford, Illinois. Hi, Kareem.
KAREEM (Caller): Hi, how are you?
KAREEM: I just had a quick question. I'm wondering - I've never used YouTube myself, although I will after today. Why is it a copyright violation if I would be using it for my own personal use at home without gaining any money for using it, I guess?
Mr. FRY: Well, that's an excellent question. I mean it goes - for me it also goes back to the point Bjorn made. You know, what Bjorn is doing with his class is certainly violation of copyright, but should it be? Or should there be a simple way for Bjorn to use it in that way and make sure that content owners get paid.
You know, the issue here - I mean to oversimplify a little bit - is that, you know, the content owners of whatever you take a look at on YouTube, if it's in copyright, have not given their permission for it to be distributed that way.
NEARY: Hmm. Well, I should - I mean is this heading toward a Napster-like solution where, you know, the content producers would get paid a certain amount every time their video is viewed by someone?
Mr. FRY: Well, that is what YouTube is trying to do. YouTube is working pretty diligently on finding technology that can identify copyrighted material and then can earmark that so that they can set aside a portion of ad revenue to compensate the content owners. And it's definitely - I get the impression that content owners are giving that some time to play out and see if that works.
But, you know, that isn't a cure-all. The - not all content owners have agreed to that, and there's an enormous number of which you have to reach out to. And also it's - it can be enormously difficult to locate who rights-holders -owners are - particularly as you go back with older material. Which - while I'm not a copyright scholar or an expert, from just the standpoint of a frustrated user, certainly raises the question for me of, you know, is this the best way, or has our current copyright regime outlived the tenets that it was formed under?
Mr. FRY: ...Should there be a way that it's simpler to do this and make sure the content owners do get paid?
NEARY: Well, as I was going to say, because regardless of how you may feel or how frustrated you may feel as a user, certainly people who have created this content, you know, they do have a right, a copyright, to some kind of remuneration - particularly if it becomes very popular.
Mr. FRY: They absolutely do. And I would also argue that one thing technologists and technology buffs miss a lot, is that, you know, content owners, simply put, have a right to their content - and that includes the right to not want to put it out there, even if they benefit from it; or to pursue their own strategies, even if you don't agree with them; or to simply do nothing with it, even if you think that's a shame. We shouldn't take that right away from them.
NEARY: All right, Jason, thanks so much for being with us today. Jason Fry is assistant managing editor at The Wall Street Journal Online, and we're going to continue our discussion about the collision of copyright, creativity, and the Web when we return. I'm Lynn Neary. It's TALK OF THE NATION from NPR News.
(Soundbite of music)
NEARY: This is TALK OF THE NATION. I'm Lynn Neary, in Washington.
We're talking about video-sharing sites like YouTube and what these wide-open forums for creativity mean for copyright law. Of course you're invited to join the conversation. Do you use video-sharing sites like YouTube? Why or why not? And do our existing copyright laws still work given the way we use video-sharing sites these days? Give us a call. The number's 800-989-TALK. Send us an e-mail to firstname.lastname@example.org.
And to help us decipher whether the balance between copyrighted material and the public good is out of whack is James Boyle. He's a professor of law at Duke University and author of Bound By Law. That's a comic book about intellectual property and fair use. He's joining us from the studios on the Duke campus. Thanks so much for being with us.
Professor JAMES BOYLE (Duke University; Author, Bound By Law): It's my pleasure.
NEARY: So I assume if you've done a comic book about intellectual property, you'll be able to explain it very clearly to us.
(Soundbite of laughter)
Prof. BOYLE: Absolutely. Although I can't do the pictures - I'll just have to wave my hands.
NEARY: OK. Well, let's - maybe you can explain why copyright law sometimes seems so draconian.
Prof. BOYLE: Well, that's a very good question. The reason is - I think the basic reason is twofold. The first thing is that copyright law never used to apply to people. It was never really supposed to apply to people. What copyright law was supposed to apply to was basically industrial competitors.
So if I had a printing press and I was printing the Da Vinci Code, and you had a printing press and you started running off illicit copies of it, I wanted to have a law which would allow me to go after you and say you can't do that. If you were a movie studio, and I had a TV station - copyright law was kind of a contract written between effected industries that was basically the way that they regulated their behavior, and benefits flowed from that to the original authors, to artists, to distribution networks - and the public kind of got the end product. You know, we sat in the movie theaters and we watched the shows, we read the books, and maybe one day dreamed of writing one - but we weren't going to distribute ourselves, or copy it ourselves, or produce it ourselves.
NEARY: When did the idea of intellectual property come into play?
Prof. BOYLE: Well...
NEARY: I mean was that there from the beginning, or did that...
Prof. BOYLE: No, absolutely not. This is definitely a human invention. It comes up in the - it really starts in the Anglo-American tradition in the early 18th century in England with the Statute of Anne, although you can go back to other sort of anachronisms before then, and that was sort of an early form of copyright law. And the term intellectual property - which to sort of bring together copyright, patent, trademark - that comes from the mid-19th century.
But the thing that was sort of the dramatic change - that you were saying, why does it seem so draconian - is that if in 1950 I'd handed you a book and say, quick, violate copyright law, it would have been almost impossible for you to do so.
Prof. BOYLE: I mean you couldn't copy it. You couldn't put on a movie about it. You couldn't - it would be hard for you to trigger the rights of copyright. Whereas today if I said, hey, don't make any kind of transient copies in the course of your day, don't reproduce something, don't print something, don't, you know, send someone a cache or a link or - you would say, oh, wait, that's almost impossible; I can't live my life without doing that.
So what's happened is this law which was designed to deal with industrial entities who were horizontal competitors - who had, you know, bunches of lawyers trained by people like me - is suddenly applied to individual creators and distributors, and often the shoe doesn't fit. It pinches, and that's where the draconian...
Prof. BOYLE: ...one part of the draconian comes from. The other side is that we've, I think quite wrongly over the last 30 or 40 years, been making copyright law progressively stronger in every dimension that you can think about: lengthening the term, making the penalties more severe, applying it to more things, applying it to more areas of art, applying it to more things that people do. So pretty much any dimension you can think about, we've been extending it. So if you - it's the two things. The technology changes so it covers more people; and then the law changes so it covers more actions, and that's why copyright law seems - and I would argue is in many ways - draconian today.
NEARY: Well, let me as you a question that a caller asked just a short time ago, and that is why would watching a clip of a video on YouTube, in my home, completely for my own pleasure...
Prof. BOYLE: Yeah.
NEARY: ...or amusement, why would that violate copyright law?
Prof. BOYLE: Well, I hate to disagree with your prior speaker, but actually it probably wouldn't - for a number of reasons. First, a whole vast amount, as he mentioned, of the stuff that's on YouTube is - although it is all copyrighted, contrary to what was said. You get a copyright as soon as you click the button on the camera or press save or whatever. You don't need to file, so it's all copyrighted. But a lot of it is put on there by the people who created it. They're putting it up with their consent. So if you're watching any of that, that's not a copyright violation.
A lot of the remainder is fair use. Some of it is commentary. So if you see a - someone takes one of the outtakes from NPR or from PBS interviewing some political candidate. During the break he says something unfortunate; somebody puts it upon YouTube. You may own the copyright, but it's fair use; it's a political commentary - again, not a copyright violation.
Finally, the person who's watching it in their home, arguably is either making a fair use and not making a copy at all. So a lot of what's going on, in terms of the recipient, the user, is probably not a copyright violation at all. What becomes more problematic - if that person makes a copy of it, starts circulating it to their friends - then we start getting into - start changing it - then we start getting into murkier territory.
And there's also of course the question of whether YouTube is violating copyright, and that's a whole separate issue, which I'd be happy to discuss if you want me to.
NEARY: All right, why don't we get you to explain how YouTube may or may not be, and then we'll take a call after that. Just...
Prof. BOYLE: Sounds great.
NEARY: So there was a law passed in the late 1990s called the Digital Millennium Copyright Act - we should probably call the Copyright Lawyers Full Employment Act - because it's the most badly written and impenetrable piece of legislation I've ever seen. But it requires lots of people like me to explain it. But one thing that it did do - which was actually not bad - was it had some so-called safe harbors, places of immunity for people who put content online. People like Google, for example, need to copy stuff in order to search it. These safe harbors say Google isn't violating copyright when it does that.
And it has a safe harbor, specifically for people who run Web sites, which allow users to upload content to it. So, so long as you run your Web site and you let somebody upload the stuff and you aren't controlling what they upload and provided you take it down as soon as someone says, hey, that's actually my clip, then you actually get a statutory immunity. Unless - and this is the big unless - you're benefiting financially from running this site, you know that there's all this violation going on, and you have the right and ability to control each of those acts of violation. And that could let - lawyers could squabble for several years over the meanings of that little exception there.
YouTube and Google are betting, not unreasonably in my view, that actually they're covered by this safe harbor, and so they are largely immune from suits - so as long as they keeping that stuff down as soon as anyone requests them to.
NEARY: All right. I think I understand that.
(Soundbite of laughter)
Prof. BOYLE: Sorry I didn't have any pictures to show from the comic book.
NEARY: All right, if you'd like to join our discussion, the number is 800-989-8255, and let's take a call from Kara(ph) in Charlottesville.
KARA (Caller): Hi, this is Kara. And hi, Lynn. My question was in regards to - and I'm a YouTube addict at this point - if you look at the clips on the front page - and they do have The Letterman and CSI - they are actually put out by CBS as little commercials for their shows. So you watch the clip and you (unintelligible) and watch the show. And my first question is, is it really fair to have it both ways, where they'll take down clips of Letterman that are longer than, let's say, six or eight minutes?
And my other question is in regards to the news. If something happens on the news and they post it on YouTube, is that copyright infringement? Is that public knowledge? I mean especially here in Virginia with George Allen's campaign there were several gaffs that made it onto YouTube, and I think it just spread like wildfire because if you can't catch it on the news, that's where you can find it, on YouTube. And is that public information or is that copyright infringement?
Prof. BOYLE: So can I respond to that one?
NEARY: Yes. No, go ahead, yes.
Prof. BOYLE: Those are great questions. As to the second one, the stuff on the news - that in all likelihood is not copyright infringement. In fact, there is a very nice provision in the Copyright Act, which many content providers would like you to forget about or to believe doesn't exist anymore, which is called fair use, which specifically covers things like news reporting and commentary, also things like parody, you know, so that some of the mash-ups which you see on YouTube, so long as they're parodies, would also be covered by that.
And that stuff is - that's actually an exception that's always been in copyright law. The copyright law is actually not just, you know, you own this like you own your shoes. It's a law which has a goal, and the goal is let's encourage the progress of art and useful sciences; let's develop the culture. And culture is developed by commentary and criticism and parody - including, you know, mash-ups and commentaries on gaffs in campaigns.
So although nowadays there's this kind of licensing culture or permission culture where it's assumed you have to get permission for everything, that's a real misconception. And so, no. I would say in almost all the cases I've seen that is not a copyright violation.
Of course if you say, oh, in order to show the news about Britney Spears I need to play 12 of her music videos back-to-back, sorry, fair use doesn't help you there, but you get the idea.
As to the first one, I agree there's a lot of hypocrisy, I think, in terms of the way content providers are using YouTube and also taking stuff down on YouTube. Unfortunately - or fortunately - hypocrisy isn't illegal. So I think the question here is not so much, you know, is this stuff illegal, but what's the pattern that's going to emerge? And I think the music industry and the video industry just doesn't quite really get the Web yet.
They're not quite sure how they're going to live with it. They sort of understand they're supposed to be doing this viral stuff. They're a little bit scared of it. And they're answer is to kind of dip their toe in it and say oh, wow, that was fun. And then as soon as they feel they're getting out of control, then they immediately say, but take it down.
I don't think that that attitude can last in the long term. They're going to have to, I think, embrace it a little more fully. Or they're going to have to try and sort of colonize places like YouTube and turn them into just kind of like video on demand services where it - only approved content. And if they do that, then they will kill it, because that's not the reason that people go to YouTube.
NEARY: Now if you're a little guy online and you want to be paid for you work, well, Fritz Grobe is the co-creator of those exploding Mentos in Diet Coke videos that first appeared on Eepybird.com. And he joins us by phone now from Las Vegas. Thanks for being on the show, Fritz.
Mr. FRITZ GROBE (Creator, Diet Coke and Mentos Online Movies): Thanks for having me.
NEARY: Now tells us what you did. Did you put your video up on YouTube?
Mr. GROBE: We did not. We put our video up on Eepybird.com and used a video hosting site called Revver.com on a Saturday morning in June. And literally, within hours, we were seeing bootleg copies on YouTube. It was amazing to see how quickly and how many of them showed up.
NEARY: Now when you first put the video up on Eepybird, what was your expectation? Was it just for fun? Why were doing it?
Mr. GROBE: We hoped that people would enjoy it. We hoped that we'd make a little bit of money through advertising. And we were completely unprepared for, you know, the thousands and tens of thousands and millions of people who started watching the video. It was an incredible experience seeing - now something like 8 million people have come to see our videos.
NEARY: Now did you - then did you have a copyright issue with what occurred and did you have your video taken…
Mr. GROBE: We did. On that very first Monday morning in June, we started working on what is the law and can we do about this? Thankfully, my business partner is a lawyer, and he spent several days wading through the Digital Millennium Copyright Act to find out what to do. And it's really difficult. You can't just send them an e-mail and say, you know, please - this is my video, please take this down. You have to cross your T's and dot I's in so many ways.
But we were able to figure it out and sent take down notices, but the difficult part there was it was a hydra sort of a battle. You know, as soon as we had one copy taken down, three more would show up in its place.
NEARY: Didn't it arguably make your video more famous by having it on YouTube and therefore help you out ultimately?
Mr. GROBE: I mean, it certainly helped. We were certainly thrilled to have people watching our video, but, you know, the vast majority of news articles and blog posts directed people to Eepybird.com. And early on, we were seeing about as many viewings on YouTube as were seeing on Eepybird and on Revver.
And to have - potentially be looking at our ad revenue being cut in half was really painful. It was a tough thing, particularly with a viral video like this - your window of opportunity is very short.
NEARY: Now on the other hand you're in Las Vegas performing aren't you, as a result of your fame, which I think probably came from YouTube?
Mr. GROBE: Well, really, again, we come back to the - you know, it's been an incredible ride. But, you know, the thing that we're trying to get out there is this is our work, and we want people to see it the way we intended it to seen. The most painful stuff is when the credits get chopped off the video and a new watermark gets put on it and it shows up on YouTube looking like somebody else's work. You can't even identify that this came from Eepybird.
NEARY: All right. Well, Fritz thanks so much. Good talking to you, and enjoyed your video.
(Soundbite of laughter)
Mr. GROBE: Thanks for having me. Thanks.
NEARY: Fritz Grobe is the co-creator of the Eepybird Diet Coke and Mentos videos. He joined us from Las Vegas.
James Boyle, so that was an interesting story. I think many, many people are familiar with that video. And here is somebody who achieved fame through the showing of his video on YouTube, and yet still concerned about the copyright violation.
Prof. BOYLE: Right. And I'm second to no one in my admiration for that video. And I've enjoyed watching it, you know, many, many times. And clearly, you know, he has a real concern, particularly the story about, you know, people replacing the credits and putting on other people's names. And, of course, you know, this is all a violation of copyright, and he and his partner have the right to ask for it to be taken down, as I gather that they did.
So, you know, they have that right and I totally agree with him when he said the system isn't set up to work for the little guy. But there's a kind of implicit, you know, and so in there, which I'd like to question, you know. What's the next step? A lot of people say, wow, this is really uncontrolled. It's like the Wild West. This stuff goes on. What we need is an Internet that is more controlled where we can really, you know, track this stuff, where it's either difficult or actually physically impossible for you to copy a video or text or music without my permission, where your computer won't do it - where we somehow have a switch in the computer that sort of disables that stuff or where we have more severe penalties or where we go after people like YouTube and so forth.
And, you know, I'd suggest that probably - and I think this is what your questions were getting at, Lynn - if you had to pick two worlds, one in which he and his partner had 100 percent control over the video and only distributed as they wanted and it was only distributed and only available on the sites that they chose and they could control how it was seen and where it was seen and so forth.
And the second - this other world, which as you pointed out is more anarchic where it went all over the place and it was viral. It's quite probable that they did a lot better out of the second world - that is to say, they'd do a lot better out of the less controlled world. Why? Because it gave them an enormously larger audience - as you suggested - much more quickly.
And there were lots of ways they could make money with that. Their next video, I gather is going to be screened by Google, which is nice - which works with YouTube funnily enough. And I gather they got, you know, some decent payment on both ends, from both from Revver and from performances and so forth.
So I think there's a little bit of shortsightedness, not in the basic claim, hey, this is my stuff. I should control it. You shouldn't put other people's name on it. I can ask you to take it down. Of course all that is right. But the kind of next step, which is we need to make the Web safe for content, and that will help me. There I'm a little less certain.
NEARY: Okay. Thanks so much for joining us today.
Prof. BOYLE: Thank you.
NEARY: James Boyle is a professor of Law at Duke University, and he joined us from the studios of Duke University.
When we come back from a short break, new information today on the risks of breast cancer. If you have any questions about risk factors for breast cancer give us a call, 800-989-8255. It's TALK OF THE NATION from NPR News.