Was Youtube Built as a Copyright Infringement Machine?

Story-Telling and Dot-Com-Bubble Memories

The much-debated EU copyright reform aims, among other things, to address the “value gap” – the fact that the same service and the same content and the same audience gives very different revenue for creators and rights-holders whether it’s a licensed service such as Spotify or Apple Music or alleged user platform Youtube. This is possible because of different legal definitions (more on that here). This situation begs a different question: was Youtube set up like this intentionally?

1,9 Billion logged-in users per month and more than one Billion hours of video viewed every day, according to Youtube itself. Who knows how much of this material was uploaded with the owner’s blessing?

The official story-telling of Youtube’s genesis will have you believe it was inspired by the unavailability of videos of Janet Jackson’s “nip-slip” at the 2004 Superbowl. This showed the need for a user-generated online video repository. Maybe that is exactly how it happened, but founders Chad Hurley, Steve Chen and Jawed Karim were not the first to get this idea. I had the doubtful pleasure of being close to the core of the late-90s pre-dotcom bubble internet entrepreneur-scene in Stockholm, Sweden – one of the busiest hubs of what today is know as the tech startup world. In that environment, I came in touch with at least five different online video sharing business plans – all different variations on the Youtube-theme of five-six years later. Why did none of those beat Youtube to the game? Because they never started. They all sought legal advice and all lawyers told them it would never fly for copyright reasons. Maybe Hurley-Chen-Karim did not seek such advice. Or maybe they did and proceeded anyway. In any case, it should come as no surprise that Youtube soon became a popular distribution channel for unlicensed content.

Lawsuit predictably followed. In 2008, broadcaster Viacom together with Paramount Pictures and some other television players sued Youtube for copyright infringement. After five years of court hearings and appeals, the parties settled. However, some of the statements from Youtube employees give some hints to the question raised in this blogpost:

/…/statements made by YouTube employees that “[we should grow] as aggressively as we can through whatever tactics, however evil.… [the site is] out of control with copyrighted material … [if we remove] the obviously copyright infringing stuff … site traffic [would] drop to maybe 20% … steal it!”[24]

Since then, Youtube has introduced its Content-ID system which some hold up as an example of “best effort” by platform providers, while others think it’s rather a strategy of doing as little as possible as late as possible to protect the revenue stream from illegal content.

We will probably never know for whether Youtube is such a perfect copyright infringement machine by design or coincidence. However, one thing is certain: they couldn’t have done a better job if they tried.

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