We’re still going through these recently released YouTube/Viacom litigation documents, and it’s becoming clear that we can’t take everything that’s being said by either party at face value (as if we didn’t know that already). We’ve come across a good example. In Viacom’s document Statement of Undisputed Facts, it presented the following seemingly damning passage that indicates that YouTube co-founder Steve Chen was advocating pirating movies (a quote that’s now appearing in quite a few news articles). But Viacom may be misrepresenting the evidence. Here’s their version:

In a July 29,2005 email about competing video websites, YouTube co-founder Steve Chen wrote to YouTube co-founders Chad Hurley and Jawed Karim, “steal it!”, and Chad Hurley responded: “hmm, steal the movies?”

Steve Chen replìed: “we have to keep in mind that we need to attract traffic. how much traffic will we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type. . . . viral videos will tend to be THOSE type of videos.”

The quote seems to be referring to full-length movies, though viral videos are mentioned (it’s unclear in this context whether they’re saying movies will go viral, or if they’re talking about traditionally more viral video clips). As it turns out, it’s the latter. And they were probably joking about it. Here’s the actual Email thread, in chronological order:

SUBJECT: Re:http://www.filecabi.net/

Jul 29, 2005  1:05 AM, Steve Chen wrote:

steal it!

Jul 29, 2005 1 :25 AM, Chad Hurley wrote:

hmm, steal the movies?

Jul 29, 2005 1 :33 AM, Steve Chen wrote:

haha ya.

or something.

just something to watch out for. check out their alexa ranking.
-s

Jul 29, 2005 7:45 AM, Chad Hurley wrote:

hmm, i know they are getting a lot of traffic… but it’s because they are a stupidvideos.com-type of site. they might make enough money to pay hosing bills, but sites like this and big-boys.com will never go public. I would really like to build something more valuable and more useful. actually build something that people will talk about and changes the way people use video on the internet.

Jul 29 2005 6:51 AM, Steve Chen wrote:

right, i understand those goals but, at the same time, we have to keep in mind that we need to attract traffic. how much traffic will we get from the personal videos? remember, the only reason why our traffic surged was due to a video of this type.
i’m not really disagreeing with you but i also think we shouldn’t be so high & mighty and think we’re better than these guys. viral videos will tend to be THOSE type of videos.
-s

Jul 29 2005 6:56 AM, Steve Chen Wrote:

another thing. still a fundamental difference between us and most of those other sites. we do have a community and it’s ALL user generated content.

-s

It’s worth pointing out that the subject of the Email thread was ‘http://www.filecabi.net’, and that big-boys.com is now Break.com — it’s pretty clear that Chen and Hurley are referring to the brief, dumb sort of videos that often go viral as opposed to full length movies. And, based on the ‘haha’ comment (which is ommitted from Viacom’s document), Chen and Hurley may have just been joking about stealing any content at all.

This doesn’t clear YouTube by any means (there are still plenty of other suspect quotes).  But it casts some doubt on the rest of Viacom’s ‘facts’.
CrunchBase InformationYouTubeViacomInformation provided by CrunchBase

Not so long ago, calling something “Web 2.0″ increased its value. It meant fresh, new, interactive, responsive. Now, if someone uses that term you know they’re woefully out of touch.

For me, it’s been a trip to re-adopt my former web beat on GigaOM after spending a few years writing for our sister site NewTeeVee. I made the leap to the world of web video in the fall of 2006, when YouTube had just been bought, Facebook had just opened to the general public, and only a few people cared about a little service called Twittr.

Since then, one thing that’s gone by the wayside is the term “Web 2.0,” which got its start as a marketing phrase to build a conference around, and spawned both a new class of companies and sites dedicated to writing about them, such as TechCrunch and Mashable. TechCrunch, whose original tagline was “tracking Web 2.0,” itself declared the death of the term in February 2009, citing a perceived drop in the number of pitches mentioning it. Indeed, while the AJAX-y web services and user-generated content at the core of Web 2.0 haven’t gone anywhere, now the preferred term seems to be “social media.” Google Trends says that search volume for “social media” surpassed “Web 2.0″ right in the middle of January this year, though the new hotness has yet to reach the heights of “Web 2.0″ circa 2007.

Feel free to chalk it up to a matter of trendy semantics, but here are the material differences I see between these two mini-eras:

Building for the Mainstream

These days, starry-eyed entrepreneurs are building for the mainstream, not just for themselves. One of the reasons I was happy to leave the GigaOM Web 2.0 beat the first time around was that I didn’t want to write about yet another social bookmarking service trying to copy the innovative but narrowly used Delicious (then spelled del.icio.us, which kind of says it all). Sure, one of the best ways to come up with something truly useful is to build something you yourself want, like a repository for saving all the web sites you visit — and as Twitter has proven, niche products can evolve to satisfy the needs of those beyond just early adopters. But some of the most exciting new services online today are aimed at serving broader interests, such as the search for deals (Groupon, Gilt Groupe), and procuring real physical products and human services (Alice.com, Sears’ ServiceLive).

I think MySpace and Facebook deserve a lot of credit for bringing the Web 2.0 era to the mainstream, helped along by major portal offerings like Gmail. Those services and products continue to provide value to a broad audience. On the flip side, startups like Foursquare and the many folks who pitch us on, say, tweaks to Google Reader aren’t building with Middle America in mind. They may get there eventually, but not just yet.

All the World’s a Platform

The rise of platforms, app stores and mobile makes web applications better, more accessible and more useful. Facebook, with its platform launch in 2007, showed the value (and eventually, the dangers) of building on top of someone else’s pre-existing audience, making use of inherent viral channels and the continuity of experience provided by a popular platform. The distribution power of the platform was huge.

Then the iPhone App Store came along, offering far more functionality and exposure to developers (if they could get through its approval process). On the user side, just about every web app is better when it rides along in your pocket, ready when you need it. The iPhone and all the knock-offs and competitive one-ups it has inspired are tremendously popular. And as a corollary, the benefits of the mobile app platform model is now so obvious that the number of them grew to 38 from eight in the span of 2009 alone, according to new research.

The Most Obvious Answer

Of course, the one thing that affected every business, web or otherwise, was the economic downturn. However, Web 2.0 startups — until of course their funding ran out and/or they had to layoff employees — seemed woefully out of touch with the rest of the world.

Valleywag, which never missed a chance to declare something dead, might have actually been right when in it ran with the headline “It’s the end of Web 2.0 as we know it” in reference to a carefree music video released by Web 2.0 entrepreneurs cavorting in Cyprus to the tune of Journey. It was October 2009. Their timing was pretty bad.

Meanwhile, one of the sectors hit hardest by the downturn was the media, which was already being brought to its knees by its failure to adapt to the web. Now, your Facebook newsfeed really is your hometown paper (though its investigative reporting skills may be limited to relationship status changes), and Twitter really is your personal real-time newswire. And accordingly, social media referrals from sites like Digg and Twitter are increasingly important to media business models — and sites like Facebook and YouTube are among the most-trafficked, and therefore most powerful, on the web.

Maybe “social media” just sounds less like a buzzword or a brand name than “Web 2.0,” while at the same time pointing to a sort of social facelift for all content — a feature that can be included or integrated into everything on the web, rather than being segmented in its own category. Or perhaps it was the futile attempts to brand disparate things “Web 3.0” that made people realize how silly the naming convention was. But “social media” has its issues, too. As Aliza argued earlier this month on WebWorkerDaily, many new web tools are just useful, not necessarily social. Perhaps what was wrong with “Web 2.0″ was that the term implied a fixed version — while it’s cute, the metaphor of a software upgrade doesn’t carry over very well in reference to something that changes every day. Innovation on the web is fluid and builds on itself, and that naming convention just got stale.

Middle photo and post thumbnail courtesy of Flickr user chegs.

Please see the disclosure about Facebook in my bio.

I've spent the last few hours going through the motions for summary judgment from both Google and Viacom in the YouTube case. If you'd like to kill a few hours yourself:

• Viacom Summary Judgment Motion (pdf)
• Viacom Statement of Undisputed Facts (pdf)
• Google Summary Judgment Motion (pdf)

There are few surprises made in the basic arguments by both parties. Viacom claims that YouTube knew about infringing content and should have taken it down (and that Google knew about this and then continued with that policy). Google claims that it's clearly protected by the DMCA's safe harbors. There are some interesting things raised in the filings however:

• Viacom claims that YouTube employees uploaded infringing content themselves, and discussed this over email -- though, the filings carefully provide only fragments of the emails, which could easily have been taken out of context. And, even on top of that nowhere does Viacom explain how YouTube employees could distinguish which content was actually infringing and which was put up for promotional purposes or what was fair use. This is a major weakness in Viacom's motion.
• Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress. Based on this argument, any ISP that hosts content from a paying customer loses its safe harbors. That's ridiculous on its face.
• Viacom argues that Google could have blocked uploads with fingerprinting technology it had licensed, but fails to note the massive weaknesses in those fingerprinting technologies (which we still see thanks to Google's bad automated takedowns). It tries to bolster this argument by saying that Google refused to use the fingerprinting on Viacom content unless Viacom agreed to license its content to YouTube. Perhaps there's more to it than this, but I think that's also taking Google statements out of context. The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them.
• Then the arguments get really weak. Viacom says that Google isn't just a secondary infringer, but a direct infringer, due to the terms of service that say you're granting a license to YouTube, and because to work, YouTube converts uploaded video to Flash. This is a weird legal argument that has been rejected before.
• The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site. But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing. Viacom tries to get around this with some legal tap dancing, basically saying that it doesn't matter and Google just should have known what was infringing and what was not. But that makes no sense. Viacom is basically saying Google should have had a magic wand to figure out what's infringing and make it disappear. That's impossible. No law could possibly require Google to do the impossible. The fact that some of the videos Viacom sued over were uploaded by Viacom itself proves this point clearly.
• Viacom argues that because YouTube "licensed" its videos to Apple and Verizon Wireless phones, it shows that it's more than just a passive service provider. Again, this seems like a weak overall argument, as what YouTube was doing was licensing access to the videos in a more convenient format, not claiming control over the videos themselves.
• Viacom's lawyers also have a bit of fun at the fact that some old emails relevant to the case were deleted, even though it's not that ridiculous that not everyone keeps all their emails. The motion also mocks Google and YouTube execs for developing "serial amnesia" when presented with "evidence." But, again, Viacom was asking people to remember specific sentence fragments (potentially taken out of context) from years-old emails.
• The "big surprise" in the Google motion is that Viacom apparently tried to buy YouTube itself. While interesting as a historical nugget, I'm not really sure that really helps the case one way or the other. It doesn't change how Viacom may have viewed YouTube as a platform. The attempted purchase may just have been a way to try to co-opt it into a limited platform, like what happened with Napster.
• Google argues that it has gone above and beyond the DMCA's requirements in providing tools to help copyright holders. Viacom's counter argument, of course, is that those changes are more recent.
• For every claim made by Viacom that Google/YouTube execs made damning statements, it looks like Viacom's statements were even worse. For example: During these negotiations [to license content] Viacom deliberately allowed its content to remain on YouTube, in part because it thought that "having the content there was valuable in terms of helping the rating of our shows." Google effectively makes the case that Viacom knew the benefits of having its clips on YouTube, tried to negotiate with YouTube for a deal, and when Google came into the picture, basically Viacom just saw it as an easy money grab and massively upped its demands before suing. Google argues that the mass takedown and subsequent lawsuit was really just a negotiating ploy by Viacom to get an upper hand in the negotiations to squeeze more money out of Google.
• Amusingly, Viacom notes repeatedly in its own filings that YouTube didn't want to take down its videos because traffic to YouTube would suffer -- but Google counters by pointing out that it did take down all of Viacom's 100,000 takedown requests within hours and traffic to the site did not suffer and, despite Viacom's expectations to the contrary, traffic to Viacom's own sites did not soar. In other words, despite Viacom's over-inflated sense of how important Viacom's videos were to YouTube, the actual evidence suggests that Viacom was very, very wrong.
• Viacom tries to brush off the fact that it uploaded many videos itself, by saying (in a footnote) that most of those videos were clearly designated as being from Viacom. Google counters by pointing out that (a) this is not true and (b) Viacom repeatedly disguised who uploaded those videos on purpose -- even quoting Paramount's SVP of marketing saying that the clips "should definitely not be associated with the studio -- should appear as if a fan created and posted it." Among the users who uploaded Viacom clips on behalf of Viacom itself? MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn On top of that, they registered with non Viacom email addresses, and even went to the local Kinkos to avoid uploading from Viacom directly. How Google was supposed to distinguish those clips from those uploaded by random users is not explained anywhere by Viacom, which is a hugely damning point against Viacom's case.
• Further damning to Viacom's case -- the fact that Viacom regularly had to backdown on its takedown notices after it was realized that the takedowns were incorrect. This is a point that we've made before and is driven home repeatedly in Google's filing. If Viacom itself can't get it right -- when it holds the copyrights and some of the videos were uploaded by itself -- how the hell is Google supposed to know which videos are legit and which are not?
• Even more amusing is the part that details how Viacom had incredibly complex and detailed rules with BayTSP (who monitored YouTube and sent the takedowns) over what should be taken down and what should be left up. Apparently, those rules changed every few days and the folks at BayTSP compared them to Crime and Punishment. Again, if Viacom required such a complex list of rules for its own partner, how could it expect Google to know what to do without knowing any of that information?
• Google also points out that many of the clips in question have serious questions over whether or not they could be considered fair use -- and those are questions for a court to determine. It is both unfair and outside the scope of the law to expect a third party like Google to be able to make that kind of decision on the fly.

In the end, it will surprise no one that I find Google's arguments significantly more compelling than Viacom's. The one point on which Viacom is strongest is the emails from the very early days of YouTube, where the founders and some employees admit that they know there's a fair amount of infringement on the site, and they debate what to do about it, before taking a fairly liberal approach -- though, never an approach that removes their safe harbors (Viacom disagrees on that point). In fact, the weaknesses of Viacom's argument are driven home in that nowhere was it able to produce a single bit of evidence of YouTube founders/execs being aware of a specific infringing video. All of the quotes are about general infringement. The lack of a smoking gun email to the contrary really weakens Viacom's case -- and is a glaring absence in the motion.

What this comes down to in the end is a basic interpretation of what the DMCA really says and means with its safe harbor provisions. Viacom's interpretation would effectively gut the entire purpose of the safe harbor provisions, disqualifying pretty much any commercial entity that allows user created content from gaining safe harbor protections. Such a reading makes no sense as it would make the DMCA safe harbors effectively meaningless.

Google's motion, on the other hand, is quite compelling and highlights how even if execs are aware of general infringement across the site, it was impossible for them to distinguish what was authorized and what was not, as well as what was fair use and what was not. To require a third party like Google to make such determinations would effectively gut the ability of pretty much any user-generated content site to exist -- which, again, would clearly go against Congress' intentions.

Still, with these sorts of lawsuits, you really never know how things will play out -- and judges often get blinded by "infringement bad, must punish!" type arguments. Hopefully, in this case, reason prevails.

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