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BROOKE GLADSTONE:
This week, old media giant Viacom filed suit against new media behemoth Google, claiming one billion dollars for copyright infringement. You see, Google owns the video-aggregating website YouTube, which plays host to thousands of clips hosted by users from programs like MTV's Laguna Beach and Comedy Central's The Daily Show. And, well, that content is owned by Viacom.

The U.S. District Court in New York now has to decide whether Google has violated copyright law, but Google will likely trot out the 1998 Digital Millennium Copyright Act, which is a sort of modified intellectual property law for the Internet age.

The act contains what is called a "safe harbor" provision, meaning that as long as Google takes down copyright content when asked to, then everything's okay. So what gives? Siva Vaidhyanathan is an associate professor of culture and communications at New York University, and he joins us now to explain. Siva, welcome back to the show.
SIVA VAIDHYANATHAN:
Thank you, Brooke.
BROOKE GLADSTONE:
Do you think that Viacom really means it with this lawsuit? Do they really want to take Google down, or are they trying to do something else?
SIVA VAIDHYANATHAN:
This is a business move as much as a legal move. In the short term, it's really about negotiating from a position of strength. If they're going to cut a deal with YouTube and Google to allow some of their material to be available on these sites, they're going to want to do it on their own terms. So in that negotiation, they're going to want as much leverage as possible.

Filing a lawsuit that basically threatens Google's core business is a really good way to get the upper hand in back-room business negotiations.
BROOKE GLADSTONE:
You know, it really seems to be a different world. As recently as a year ago, an exec at VH1, which is owned by Viacom, told Variety that, quote, "You have to be able to lose control of the media," unquote, in order to effectively promote it. I guess he's singing a different tune now.
SIVA VAIDHYANATHAN:
Well, you know, Jon Stewart said almost the exact same thing in Wired magazine about a year ago when he was celebrating the fact that so many fans build value into the content of The Daily Show by making clips, by putting them up on the Web and by making sure that other people can link to them. It was a beautiful way to build fan base.

Now, we haven't heard a lot from Jon Stewart in the last few months as Viacom's taken these very aggressive stance toward Google and YouTube, but I'd be willing to bet that the folks who really understand how fans build upon the work of The Daily Show, they understand that having stuff up on YouTube is priceless. Being kind to your fans by giving them content that they can use and reuse and sometimes even abuse is never a bad business strategy.
BROOKE GLADSTONE:
I was thinking of Saturday Night Live's boy band parody. I don't want to run into taste monitors here, so let's just say it was called something along the lines of "Male Member in a Box." [LAUGHS] NBC posted an uncensored version on YouTube where it received more than 17 million views and is ranked as YouTube's third most viewed video of all time. And this has really redounded to Saturday Night Live's benefit, just like an earlier music video, Lazy Sunday, brought a whole new audience to SNL for the first time.
SIVA VAIDHYANATHAN:
Yeah. And, you know, that's a clearly designed strategy, right? That strategy was they would run the sort of censored version on the actual show and then the uncensored video on YouTube, where the FCC would have nothing to say about it, and people who hadn't watched Saturday Night Live in years had a reason to tune back in, thinking, hey, it may finally be funny again.

Now, the real question, though, is if that's good once in a while, why isn't it a good idea all the time? You know, one of the things we’re going to start seeing down the line is whether Google needs these companies more than these companies need Google. And my hunch is that these companies actually need Google more than Google needs any individual source of content.
BROOKE GLADSTONE:
In the case of Lazy Sunday, it was viewed five million times on YouTube, and then NBC told them to take it down.
SIVA VAIDHYANATHAN:
Yeah. That was pretty interesting, because they did let it ride long enough to build an audience, and then complained. Under that sort of behavior, that's exactly how the Digital Millennium Copyright is supposed to work, or at least the safe harbor provisions of the Digital Millennium Copyright Act.

There was a notice, there was a takedown. No harm, no foul, no lawsuit. The world goes on. Copyright is preserved for another day. Saturday Night Live goes on another week. And so you could look at that situation and say from a business point of view, everybody won except the lawyers.
BROOKE GLADSTONE:
Well, that's what you say, but Viacom says that it spends tens of thousands of dollars a month just patrolling YouTube to find Stephen Colbert clips that it already asked be taken down.
SIVA VAIDHYANATHAN:
I don't know.
[LAUGHTER]
You know, look. If they had given proper notice to YouTube and Google, YouTube and Google had a responsibility to take it down right away. And if it didn't then, of course, you know, going to court is appropriate.
BROOKE GLADSTONE:
See, but if the court were to rule against YouTube, what do you think the implications would be for other similar sites?
SIVA VAIDHYANATHAN:
Well, I think we would probably see a chilling effect within the software industry in the sense that every time someone dreams up the next content delivery platform, their lawyers would say, no, you better be careful because your fans might end up posting copyrighted material, and you would be dealing with a huge legal bill almost immediately.

One of the reasons we've had such amazing technological innovation over the past 20 years is that both Congress and the courts have essentially said, we won't hold content delivery companies and technology companies liable for the infringement that fans do. And that meant that we could get tremendous investment in things like the personal computer, the big hard drive.

Clearly, one of the reasons that we all want big hard drives is we want to fill ‘em up with MP3s and now video, right? So we want big hard drives to hold copyrighted material.
BROOKE GLADSTONE:
For our own use.
SIVA VAIDHYANATHAN:
For our own use, certainly. But somebody's making money off of that. And so, the content companies have, for just as many decades, wanted a piece of that action. Wisely, both Congress and the courts have said, no, you can't have a piece of that action. And we need to encourage more investment and more innovation in those areas.
BROOKE GLADSTONE:
Siva, thank you very much.
SIVA VAIDHYANATHAN:
Thank you, Brooke.
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BROOKE GLADSTONE:
Siva Vaidhyanathan is the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. You can find a link to his blog at onthemedia.org.
BOB GARFIELD:
Coming up, a conversation with Bill Gates, and what you should be aware of this week.
BROOKE GLADSTONE:
This is On the Media from NPR.