June 10th, 2010
A couple of days ago John Green of Vlogbrothers posted a video about Viacom, YouTube, Spike.com’s video channel, and Jonathan Coulton. In it he discussed the Viacom YouTube suit and used my “Flickr” video to illustrate something. Watch the video for a complete explanation, but in a nutshell he was pointing out that Viacom was serving up my “Flickr” video with ads on while at the same time suing YouTube for serving up Viacom content with ads on YouTube. He encouraged people to email Viacom asking them where my proceeds from the ad revenue were, said proceeds being either $37 or $13,000 depending on how you do the math.
You know how I like to jump on a bandwagon – for goodness sake, my Twitter icon is still green even though democracy has long since been restored in Iran. I’m a sheep. And I love to bash all the evil corporations as much as the next fellow, and it certainly seemed to me that I had been wronged. I didn’t remember ever giving Viacom permission to display “Flickr.” Except that I had.
Soon after tweeting that Viacom owed me $37 and making a joke about how I was going to sue them for it, I was contacted by a VP of Corporate Communications at Viacom, let’s call him Downtown Julie Brown. Downtown Julie Brown explained that when they caught wind of the issue they immediately took down the “Flickr” video from Spike. Then they looked into their records and found an email exchange from 2006 where I had spoken to a producer of a VH1 TV show about viral videos who was also in charge of the viral video channel at iFilm, also a Viacom property. In this email exchange (which they had to forward me because I had only a vague recollection of it), the producer and I talked about the possibility of airing “Flickr” on the VH1 show about viral videos – more on this later. He also asked if it would be OK if they put “Flickr” on iFilm to which I responded “Looks good!” without a moment’s hesitation. Downtown Julie Brown explained to me that iFilm was later rebranded as Spike, so really I HAD given Viacom permission to display the video.
But of course the real issue was the ads. Somebody was making money from those ads and it wasn’t me, and it wasn’t the owners of the copyright on the Creative Commons licensed photos I used. This is the $37 we’re talking about. The question was, did iFilm have ads at the time? I asked Downtown Julie Brown about this, and he said that at that time iFilm did have ads. He doesn’t know whether they were embedded in the video the way they are now, or just some kind of banner ad on the page, but he says that there were definitely ads on the video pages.
So who’s the idiot? Me. I should have investigated the nature of iFilm a little more before saying yes – if the display of the video was commercial in nature, which it appears to have been, then permission was not mine to give. This is because the photos are CC licensed for noncommercial use. I would have to get permission from all those photographers to use the video in a commercial way. I confess that at the time I was so thrilled that anyone cared I just didn’t think about it. Neither did I think about the fact that the video could also not appear on television for the same reason. Thankfully they decided to air a video of some hot girls kissing instead.
So please stop emailing Viacom about my $37 (and note that it was never my $37 to begin with because of Creative Commons). I’m sorry to have to stop a fun pitchfork waving session, but it appears that at least in the case of me and my video, Viacom has tried to do the right thing. I’m also sorry to derail what was an exciting traffic situation for the Vlogbrothers, both of whom I admire greatly and think are fantastic. I will also say that all my discussions with Downtown Julie Brown, after a semi-bristly kind of legal posturing beginning on both our parts, were frank and honest and civil. It is nice to have a conversation like that about these sorts of things, and it gives me hope. [UPDATE: Also, a bunch of people in Downtown Julie Brown's office got together and donated $500 to this cause yesterday in my name, which was very kind. I would have spent the $37 on drugs probably.]
Because here’s the problem: this stuff is COMPLICATED. I didn’t remember I had given them permission, and at the time I didn’t even think it through to realize I was not technically able to give permission. Then iFilm became Spike without me noticing. It’s possible things changed from iFilm to Spike in the way ads are displayed and used, but I’d be willing to bet it’s pretty hard for a company like Viacom or YouTube to easily contact all the owners of all the IP that’s in their database and let them know about that sort of change. There’s a crazy lattice of IP and companies and copyright owners and terms of service on the internet, and nobody’s got control of it, all of which is sort of the point. And look, I think about this stuff VERY HARD all the time, and I try VERY HARD to always do the right thing and even I got it wrong. Over the last few years I’ve met and talked with a lot of people on all sides of these issues, and while I’ve disagreed with some of them, I’ve never met one who didn’t think they were doing their best to do the right thing. As tempting as it is to imagine, companies are almost never headed up by people who twirl their mustaches and go mwa-ha-ha. It’s complicated, nobody knows how to fix it, and it’s likely to keep a lot of lawyers in business for a long time.
So anyway, sorry about the kerfuffle. Sorry about the $37. Sorry about the green Twitter icon. Back to writing songs about mustaches.