YouTube's Newest Friends

In early September, San Mateo, Calif.-based, YouTube -- our favorite resource for watching videos of just about anything, and the publisher of 60 percent of all videos watched online -- signed an agreement with entertainment industry giant Warner Bros. Entertainment to make all of Warner's video content available for free on YouTube. In what seems like the biggest industry nod so far to the creativity of everyday users, Warner is apparently inviting viewers to remix its video and audio material, without approval ahead of time, as copyright law usually demands.

The move of a giant like Warner may be a signal that big copyright owners are finally trying to work with the reality of massive creativity in the hands of ordinary people, and the reality of most people -- whether remixers or not -- valuing broad access to creative works.

But Warner is only willing to work with those realities in order to make money. What we need to be asking, then, is, how are they going to do that, and what does that mean for our rights?

The basics are that YouTube and Warner are betting on advertising to make money for them. Much like Google makes content available for free while making money off the ads you watch while you are searching, YouTube is selling its access to viewers' eyes. In this case, Warner is freeing up the content itself in the hopes that it can make money from the ads that appear along with the content.

How will Warner's content be tracked so that they know how to allocate the profits? YouTube is developing technology that can identify Warner's material "by comparing audio patterns." Whether that material is in its original state or present in compilations or remixes made by others, the technology will track how much of the material is posted on YouTube.

YouTube's press release on the subject adds some more details:

"By the end of the year, professional content creators, including record labels, TV networks and movie studios, will have the opportunity to authorize the use of their content within the YouTube community by taking advantage of YouTube's new content identification and royalty reporting system [including]: … The opportunity to authorize and monetize the use of their works within the user-generated content on the site. … "
What can we learn from this?

"Authorize" uses, to me implies that uses could be "unauthorized" and thus prevented by Warner, (consistent with the usual use of copyright law to prevent free use and re-use of copyrighted content). But we don't know yet what criteria they would have in mind, and since it would be within YouTube, I'd want to know if their licensing agreement would not necessarily allow the Fair Use rights exceptions we enjoy now -- currently we do all have the right to certain uses without permission of copyrighted material. If all uses must be authorized by Warner, that eliminates these fair uses.

"Monetize" means charging money. Would that be charging the user, or getting a share of ad revenue? If it's the second choice, a second problem raises its ugly, familiar head -- by the time that revenue trickles down to artists, it is usually mere pennies.

YouTube is currently only signing deals with big media giants like Warner Bros. The Wall Street Journal reports YouTube's president as saying," … [R]ight now we're building tools for record labels, TV networks and movie studios. … "

Which, at least for now, leaves out small independent artists and producers. This contradicts the expectations many had for how the internet and the "new digital economy" would decentralize the creative industries and put some of the power back in the hands of the creative folks usually found at the bottom. This deal isn't giving much access to money to producers not affiliated with large and powerful institutions. The problem here is not that YouTube can't afford to store and distribute indie content, but that it won't spend the time negotiating individual contracts with small artists who can't be as strategic or as powerful at the table as huge companies that own thousands of copyrights.

Who else is left out? As many folks within the music industry could tell you, just because big media owners can negotiate profitable deals for themselves doesn't mean they'll pass those profits on to their artists. Often, it is quite the reverse. So, Warner makes money, but we don't know how that money sifts down the chain within Warner -- and who it gets to.

For those of us who care about fairness and creative freedom, these are two issues to keep an eye on. Most folks have been worrying about how much money can be made. But if deals like this one give big content owners more control over where the money goes, we should be worrying about that as well.

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