Why Mark Cuban is still wrong on YouTube

Mark, who wrote just days before the Google-YouTube deal that only a moron would buy YouTube (which I responded to here), just can’t seem to let go of his view that Google bought themselves a world of copyright pain when they did the $1.6-billion deal for the video-sharing site. But copyright experts disagree — in fact, they say, Google is in pretty good shape. But isn’t YouTube just like the video version of Napster, and bound to be crushed by lawsuits? Well, no.

At least, not according to Tim Wu, a law professor at Columbia University who specializes in copyright law. In a piece at Slate, he writes that YouTube

is in much better legal shape than anyone seems to want to accept. The site enjoys a strong legal “safe harbor,” a law largely respected by the television and film industries for the choices it gives them.


The ironic part, as the piece goes on to note, is that what protects YouTube and Google — a clause U.S. Copyright Code known as Section 512, also known as the “safe harbor” clause — was fought for and ultimately won by the big U.S. telecommunications companies. Yes, the same ones that are fighting Google over who should pay for all the video and other bandwidth-hogging content that is (allegedly) filling up their pipes.

All this clause requires YouTube to do is to take down videos when a copyright holder notifies them that their rights are being infringed on. And as Prof. Wu also points out, some content owners actually like the flexibility that 512 gives them — if they want a viral video to do some free marketing for them, they can leave it up. Once they are done with it, they can send YouTube a letter to take it down. The best of both worlds. And once again, I find that Mike Masnick of Techdirt and I are on the same wavelength.


My friend Rob Hyndman takes issue with some of Tim’s points in the comments section of this post, and also has a back-and-forth with Mike over at Techdirt in his comments section (Rob, you really need to get more sleep, buddy). His point is that YouTube has to be aware that there’s a ton of infringing content, and since it makes money from that content then it may be weakening or even removing its safe harbour protection. That seems to me to be something that will only be conclusively resolved if and when YouTube goes to court — and perhaps not even then.

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