Sigh, please forgive the length but because I'm starting the legal class at Full Sail, I felt I had to be more thorough and could not break it into three blogs for grading purposes.
1.) You Tube VS Viacom
2.) Free is Awesome Vs The Stolen Design
3.) 3rd Party Agreements
Case Study: YouTube Versus Viacom
2006, let the games begin.
These are valid arguments entering the lawsuit; however, the argument was under the digital millennium act and the nature of the Internet as a free exchange of data as laid out by Net Neutrality (Past Blog).
Viacom:
Google and YouTube knew about the infringement [of Viacom material on YouTube], made money off of it, and took part in it. Therefore, they owe us a truckload [an exact measure] of money. Google has said money in the bank, and will save our year from being dismal financially.
YouTube:
Under the DMCA safe harbor rules, we are completely inside of the letter and spirit of the law. Precedents have been set for such rulings in trials like Io Group v. Veoh... YouTube and Google have no intention to bail out a struggling business. Learn how to make your own money.
From:
http://thenextweb.com/us/2010/06/23/youtube-beats-viacom-in-massive-copyright-infringement-case/
An LOL Courtroom Reenactment
Crooks Vs Jerks
http://tunedin.blogs.time.com/2010/06/24/youtube-vs-viacom-everybody-wins/
Fan Posts Most Times Don’t Make Money on YouTube
Considering all the millionaires made from content on YouTube, it makes sense that Viacom wanted more (CNN).
In 2008, I met a successful content provider on Xbox Live who got a loyal following...
“Sina117” had enough views to be considered to make money on Youtube. Thus, Google seeing the analytics offered him to become part of Goggle's Partnership Program; meaning, he would make money from the views on YouTube.
However, since his videos were of videogames and Sina117 did not have third party agreements, Youtube was not obligated to pay him or offer him a partnership.
However, on clicks alone Sina117 actually made money on this video and had to send cease and decease orders to Collegehumor.com for using the video and not crediting him or pay him royalties.
Of course I’m not trying to use YouTube to make millions from a partnership program or at least not yet. I’m considering how Youtube can help run inexpensive web market campaigns as seen below.
However, this case has brought up some interesting ideas such as how do we protect against copyright infringement or even our own digital content from being stolen as me move closer and closer to a digital content market and less on printed or proceed material such as CDs and Books?
The answer that has worked really well seems to not care about piracy (Past Blog).
Free is Awesome Vs The Stolen Design
As mentioned, Viacom used Youtube to promote it’s programming. Why? Because free is awesome, the Internet is a free flowing way to send media or connect with fans. More importantly, it is a way for independents content creators to successfully start a business. As mentioned on past blogs and a ton of places on the net, this all relates to the connect with fans model or free to paid products.
The stolen design issue.
Note: Click on Image for original website and article.
As seen on the above image and article from suvudu.com, Scott Kurtz of Half Pixel in their podcast Web Comics Weekly, once talked about how fans of his told him that their were people stealing his shirt designs. His response to the matter was to simple let his designs and wording be used because he felt that it was part of a community and not his alone to make a claim (Webcomics Weekly).
Another related story with a happy ending is the Twitter “Fail Whale”. The popular fail whale that would appear when Twitter wasn’t working was by an unknown designer Yiying Lu who didn’t receive any credit or pay for her popular design as seen below.
As we can see the design does not room for any establishing brand elements, which could have caused Yiying Lu to receive neither pay or credit. However, it is valid argument that the Fail Whales success could come from the fact Yiying Lu’s was not trying to brand her design.
In any case, Tom Limongello tracked the her down and helped her set up an online store on Zazzle. (http://www.readwriteweb.com/archives/the_story_of_the_fail_whale.php)
Again, the point here is free is awesome but make sure you at least get credit for your work.
3rd Party Agreements
Sadly, from the case study, it seems Viacom did not have a real agreement established before it started using YouTube, which led to this court case. Because these two media giants didn’t sit down and talk things through before using each other for mutual gain, it had to be settled by the courts.
Consider this as a possible solution: 3rd party agreement represents strategic partnering and resources sharing. For independent creators IP sharing can be vary profitable. Of course Marvel Vs Campcom represents two established brands benefiting form such an agreement, but a more independent content example could be guest hosts such as podcasts (TGT.com), bloggers(Chrig.com check), or webcomics (webcomics.com). These guests work with start up or establish independent brands and help promote both a third party brand and their own.
These third party agreements can come in many forms, terms, and length of commitments. The “Work for Hire” can be consider a basic third party agreement where a creator is being paid by a third party to create or work with products or content for that third party (www.copyright.gov/circs/circ09.pdf).
For example, Marvel and DC years ago were guilty of imposing harsh work for hire agreements and contracts that lead many of their lead creators to leave in the 1990’s (The Comics Journal).
Another example of limiting agreements, animation and game development contracts also fall under this, I have a friend I can’t work with until she finishes a game because everything she creates could be consider theirs until the work for hire is done. Sadly, the game has been in private beta testing for more than a year.
Of course, the simplest non-limiting agreement can be still be verbal. A third party agreement can be just by saying “guest host” my podcast, blog, or Webcomic and knowing who is saying “yes”. In this case, a short engagement and knowing someone limits the legal risk and frees up the creativity related to mutual ventures.
However, my real goal is to develop term strategic partners where the "third party" would not be bound to a work for hire but instead a “longer” term partnership. This is where I'm very interested in the market of free content and international partnerships. Or in another sense, the power of agency and establishing a market position when developing third party agreements.
What can you take from this?
When you design a business plan, you have to consider your "web presence". I know for most people that’s a “duh” right? But let’s consider the legal ramification from the Google case how that impacts or enhances your web presence...
Your stuff on the internet can and if popular will be pirated. Yay!
“Cease and decease” letters can only work if you send the letter to the direct person who is responsible, but on services like You Tube, you cannot send it to a company providing the individual the ability to use your content on the web without your permission (DMCA and http://tunedin.blogs.time.com/2010/06/24/youtube-vs-viacom-everybody-wins/)
Sure, the easiest solution is to consider “piracy” as marketing, but this means your content still should be branded as yours. Meaning, if some is going to use it without you permission then it’s important to make sure people know it’s yours.
Case in point, my first project wonderful sponsor. "Johnink.com" is placed before this parody video; so even when it's on this blog, you know where to go if you want more...
Moreover, if you are planning your stuff to be distributed all over the net without your permission how does your business plan account for the actual sale of your goods and services? LOL, if your young enough to remember the end of the 1990's, then you lived through the dot.com crash. It's funny because we're living the dream that Al Gore worked towards or something to that effect.
Note: International Laws are Different
For this blog, I’m only considering the US and US partner countries; None the less, when considering international business, it's always great to get professional, legal, and law advice from trust worthy sources. I’ve been interested in doing business in Korea and have to do more research on how to provide content over there for free if I’m on a work a Teacher Visa. It sounds kind of silly I know, but Americans have gotten in trouble for worse when visiting other countries like China.
Other References in blog not cited used...
DMCA (1998) The Digital Millennium Copyright Act of 1998 Retrieved From: www.copyright.gov/legislation/dmca.pdf
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