“When Google bought YouTube, the conventional wisdom - expressed in op-eds, newspaper articles, and scary editorial cartoons - was that they’d also bought themselves a whole heap of copyright trouble. The New York Times used the phrase “litigation-laden landmine.” Part-time copyright theorist Mark Cuban warned that YouTube would face the same copyright fate as Napster.
There’s only one problem with these theories: the copyright law itself. Under the copyright code, YouTube is in much better legal shape than anyone seems to want to accept. The site enjoys a strong legal “safe harbor,” a law largely respected by the television and film industries for the choices it gives them.
Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It’s not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it’s in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don’t ask, don’t tell," you’re getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build.
If the Internet were not a bookstore, or tubes, but rather a red-light district, YouTube would best be imagined as the hotel, and Napster, well, the pimp. YouTube, like a hotel, provides space for people to do things, legal or not. It’s not doing anything illegal itself, but its visitors may be. But Napster, everyone more or less now admits, was cast as the pimp: It was mainly a means of getting illegal stuff. Right or wrong, we seem to accept the benign vision of YouTube as an entity which, unlike Napster, was basically born as a place to showcase stupid human tricks.
The upshot is, as YouTube goes mainstream, copyright’s etiquette rules are becoming clearer. Yes, these sites can make it easier to infringe copyright. But so long as that’s not the principal aim of your company, you have more breathing room today than you once did. And under the emerging regime, if you do cause infringement, you have to be nice about it and make determined efforts to stop it. Apple has learned that dance well, even as its iPods make swapping music all the more part of being American. And YouTube has, in turn, learned from Apple the early lessons of Napster: You can act out in cyberspace. Just don’t be a copyright pimp.”
