Last week was not a good one for the big boys. In the World Cup, the Ghanaians outplayed the Cinderella US team and England was humiliated by Germany. In a US Federal courtroom, Viacom had its arse appropriately kicked by You Tube.

Judging from leaked Viacom emails, their legal minds had appeared to always feel that it would be a stretch to win the case. YouTube attorneys produced an email from Michael Fricklas, Viacom’s general counsel, in which he appears to defend YouTube’s business model and qualifications for protection under the DMCA.

“Mostly, YouTube behaves – and why not?” Fricklas wrote in July 2006. “User-generated content appears to be what’s driving it right now. Also, the difference between YouTube’s behaviour and Grokster’s is staggering. While the Supreme Court’s language IS broad; the precedent is not THAT broad.”

The real question in the case is, whose responsibility is it to police content? The third party host/service operator, or the content owner?

After the Grokster decision, when we started to build the Mashboxx system (I won’t bore you with the whole Mashboxx story again. I’m even bored with it, but I still feel compelled to slip in a “fuck you” to Virgin Management), we did so not only with Grokster in mind, but also structured a process that would go beyond Grokster.

By utilising the Snocap back-end (another bunch of knuckleheads, I might add. The emperor definitely had no clothes!), we had at our disposal a registry that, when utilised by content owners, their content could be identified on the network. If there was any indication that a certain track belonged to a registered content owner (based on the metadata of that file), we would push it through to them for verification. There was a process in place to verify any claims made by a content owner on unidentified or questionable tracks that were not in our registry. These could have been bootlegs, fan recorded live audio, or deep catalogue. This was the only way we would have any idea who owned the song and in which territories.

At that point the content owner had three choices: they could block the content from being freely traded on the p2p network, allow it to be freely traded, or monetize it. At the time, only audio content could be managed with this type of filtering system. Video filtering had yet to come of age.

If the content owner did not register their content with us, we would not be able to identify it and therefore would not know to whom that particular audio track belonged. So we went the extra mile. We established an outreach system, and here’s where we tried to go beyond Grokster. We would monitor the most frequently traded unidentified content on the network (those tracks that showed no indication of belonging to one of the registered content owners) and then proactively try to reach out and track down the rights holder. If we were successfully able to do so, the owner could then register their content with us and pick one of the options mentioned earlier.

But there’s a rub, minor and not practical in the real world, but a slim possibility nonetheless. It’s what we used to call the “Punjabi Records” scenario. Let’s say that a small indie record label in India that has two artists discovers that its content is being traded on the network. And Punjabi Records’ tracks are traded so infrequently that they fail to show up on our internal content trading radar. In that case, the guys who owned Punjabi Records could have sued us. More than likely they would register their content and that would be it. Furthermore, a small company probably couldn’t afford to bring legal action, though I’m sure they could find some jerk-off lawyer to file suit. There’s certainly enough of them out there. But even if they did sue, the chances of prevailing would be virtually nil, especially given the content management measures in place. But the possibility of a lawsuit did exist, no matter how slim.

The YouTube/Viacom decision lessens the chance that somebody does something crazy like that and puts more responsibility squarely on the shoulders of the content owners to police their content and not jump at any opportunity to sue in hopes of scoring a big judgment in lieu of sales.

The services can only go so far and as far as the judge in the Viacom case is concerned (and Michael Fricklas), they’ve done a pretty good job of policing content. In fact, the court noted, they’ve bent over backward in responding to takedown notices as required by the DMCA.

Naturally Viacom will appeal, and some think that they may win on appeal. I hope not. It’s time that content owners man up and stop using the courts and third parties to do their work for them.

After all, people, does it hurt that much to be cooperative when it comes to minding your own store?

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