Last week Google announced a $125 million settlement with book publishers to allow the search engine to copy out of print books and make snippets available with options to buy. The settlement avoids a lawsuit brought by the Author’s Guild and Association of American Publishers.

While many are praising the decision, I’m hesitant for several reasons. While it’s excellent to make thousands of out-of-print books available for research, the many restrictions, cost questions, and lack of legal precedent make this a lost opportunity for so much more.

Harvard University criticized the program for these reasons, going to far as to back out of the deal already in place before the settlement.  The university pointed out libraries, who would pay an unspecified price for full access, would be restricted to one terminal with access to the books and many copies would be missing pictures. Downloading would still not be allowed.

Second, Michael Masnick points out Google had previously stated it wanted these lawsuits to make better laws, using its massive war chest to fight lawsuits others couldn’t afford to. By paying off book publishers, Google not only lets go of an opportunity to stand up for fair use, but also opens itself up to other companies looking for an easy pay off. Viacom, in the middle of a $1 billion lawsuit with Google, used this settlement to claim Google learn its lesson in relation to honoring copyrights. Google’s made similar concessions, like paying off the Associated Press just to link to its stories, leading other news organizations to want their cut.

I’ve already found the limitations of Google Book Search reasons not to use it. Google is certainly trying to make the search mroe valuable for users, using an opt-out program to make sure orphan works can be accessed so this is better than nothing. But once again, book publishers are ignoring the value Google is adding to their books, books that are out-of-print and wouldn’t find an audience without Google’s scanning and searching.  Google is adding value publishers should want and be seeking out. But because of these restrictions (and cost), fewer people will be able to find these books and thus fewer people will be likely to pay.

The judge presiding over the Viacom vs. YouTube case has ruled Google must hand over IP addresses and user names of its users and a list of the videos they watched, whether on YouTube or embedded on other sites (an estimated 12 terabytes).  Viacom is asking for this information to prove YouTube deals the majority in infringing material.

The result of this ruling is a privacy nightmare.  The Electronic Frontier Foundation has argued the judge’s ruing violates, ironically, the Videotape Privacy Protection Act that says the government can’t snoop your rental history (library books are fair game).  Google, however, has argued before that IP addresses aren’t personal data because they aren’t attached to a single person, says Google “in most cases, an IP address without additional information cannot [identify a user].”

Unfortunately, the IP address can get you pretty close.  It identifies the computer and location, including households and laptops.  The result isn’t just embarrassing users who watched far too much Dog on Skateboard videos.  It’s what does Viacom, the RIAA, and MPAA do with this list once its public.  Most of their effort in suing customers was finding the IP addresses.  Now Google’s handing them over on a silver hard drive.

Viacom obviously wants to analyze Google’s data itself, ignoring a study by Vidmeter.com that found copyrighted materials accounting for a fraction of YouTube viewership.  Based on their sample of more than 1.5 billion views of 6,725 videos, 9.23 percent were taken down.  Those remove videos accounted for only 5.93 percent of views.  You can read the full study here.  Viacom itself accounted for 2.37 percent of of views, the highest of for all content owners.  How they monetize that to $1 billion would be magic.

[Via Mathew Ingram}

To promote the film Tropic Thunder, Viacom created a funny video with stars Ben Stiller, Jack Black, and Robert Downey Jr. for the obvious purpose of creating some viral buzz. Because the video was genuinely entertaining, it became popular on several video sites, including YouTube. But Viacom has a pesky $1 billion lawsuit against YouTube. So Viacom sent a DMCA takedown notice to YouTube, but left the video up on other sites, like FunnyorDie.com.

I’m no lawyer (but I play one on my blog), but Viacom may have to keep its videos off YouTube for the risk that they prove to be a good thing, not a liability like the company claims. That would explain why Viacom is letting other sites keep the video - YouTube, for the purposes of its lawsuit, is to blame for any falling revenue or profits because of its disrespect of copyrights. If it’s discovered that disrespect of copyrights helps promote other parts of Viacom’s business, Viacom’s case would be weakened.

Techdirt theorizes Viacom never wanted this lawsuit to happen - it just wanted leverage in business negotiations with Google. Unfortunately for Viacom, Google wants to fight this case to make sure precedent is set to protect itself and other websites from these silly lawsuits.

Video embedded after the jump.

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Hoping to convince people of the grave injustice or simply to fill column inches, Viacom’s general counsel Michael Fricklas wrote an op-ed in the Washington Post presenting his company’s position on their lawsuit against YouTube.

Aside from their complete insanity (isn’t sister company CBS okay with YouTube showing videos), Fricklas tries to offer a logical argument likely aware of the PR nightmare this lawsuit could cause.  Obviously I’m a little bias against him, but even while trying to have an open mind, his argument falls flat on its face.

Fricklas relies on a bizarre reading of DMCA and are warped understanding of the internet and filtering tools.  The DMCA safe harbors, which Google and YouTube are likely to use as a defense, allow for content sites to not be held responsible for what users upload as long as complaints are responded to and cannot knowingly let inappropriate content be uploaded.  Fricklas claims, wrongly, that YouTube must know about copyright infringing videos because they know about spam and porn and hate videos.  What he doesn’t notice is the “Flag for inappropriate” link that allows any user to tell YouTube when these kinds of videos are uploaded.  Users police users in this content landscape.

Of course, Viacom would be considered one of the users in this equation, and that’s what they seem to not like.  Fricklas says it’s unrealistic to expect copyright holders to police the web for copyright infringement.  Google should do it - for everyone.  This might work out better for everyone, since Viacom has shown they barely understand the copyrights they hold.  Or did Congress do aware with fair use and no one told me?

Likely Fricklas isn’t presenting Viacom’s entire legal argument.  But protecting outdated business models by suing fans doesn’t seem like a viable defense.

Only yesterday Comedy Central pulled all YouTube content of their shows. Now ads appear promoting the Daily Show’s posting of full episodes on the Comedy Central site. In fact, the ad says you no long have to collect pieces of each episode at “some crappy blog.” While I have little qualm with the crappy blog comment (I have work I probably should be doing), I find Comedy Central’s possessiveness of the Daily Show predictable yet misguided. While it is helpful to have one source with the full episode, this limits the viral quality of specific segments of the show. YouTube’s video software is more reliable and allows itself to be easily shared and posted on other websites, spreading the viral-ness. Comedy Central, however, wants people on their site with their content with their ads. This lessens my ability to share a particularly enjoyable Mark Foley segment, skipping the bland opening monologue. The viral sharing allows for a meritocracy of content (not necessarily high art, but footage that most people enjoy…most particularly groin hits). Blogs and YouTube are an expression of individualism. Media companies trying to govern them will only feel a backlash.

Check out Henry Jenkins’ book, the Convergence Culture, where he looks at fan involvement in Star Wars and Harry Potter. He also offers several solutions, many required on the media conglomerate’s side, to allow blogs and fans space to share and add content.

Avoiding controversy and court battles, YouTube is letting the various media conglomerates purge copyrighted material from its web site. This weekend, YouTube removed approximately 30,000 Comedy Central clips including the Daily Show and South Park.

I understand Comedy Central’s (and parent company Viacom’s) concern over copyright protection, but again the old media guard are failing to see the big picture. The Daily Show, Jon Stewart, and Stephen Colbert all have bigger audiences online than on TV. The content created by these shows bleeds viral video and has, as a result, created a monster media influence out of a show with only 1 million television viewers. This is why logic minded Stewart has endorsed the online viewing of Daily Show content.

Comedy Central might be trying to capitalize on their online popularity, forcing people to their own Motherload site, filled with videos. This is an excellent step. But unfortunately, the internet is not about having content on your site. The web lives on linking and sharing content. YouTube’s strength not only comes from a centralized video library, but also with the ease it allows users to put those videos on their own website. Comedy Central’s Motherload offers a limited selection of their content and you’re forced to view it on their site alone.

I have already posted about video sites hosting full television episodes. I see major advertising and audience potential in this, but unfortunately the profitable business model fails media companies who prefer the reliability of DVD sales and syndication. But clips, even of fictional shows, satiate fans in between watching the shows. With more niche groups watching shows, especially cable, we need the ability to quickly share content in order to discuss it around the water cooler.