The Great Google Colbert Coup

Have been busy with exams, so excuse the lapse since my last posting, but thought this was a gem. It seems that Google has lucked out because of its position and its desire to play by the rules regarding copyright, but the dispute between C-Span, Google, and YouTube highlight a problem that can only get worse when it comes to privatizing content of public concern.

Stephen Colbert of The Colbert Report gave a great (though that itself has created controversy of its own) performance at the White House Correspondents Dinner last Saturday. By Sunday the bit, including monologue and skit with Stephen and Helen Thomas, was available online via YouTube. However, C-Span contacted YouTube on Wednesday and asked it to remove the Colbert videos because their display of them violated C-Span's copyright. After exercising its copyright powers against YouTube, C-Span signed an exclusive agreement with Google to post the video online. A DVD of the entire dinner is also available at the C-Span store for $24.95 (originally priced at $45!). I had noticed something was up after I emailed the YouTube link to several people and was told that whatever I had linked to was taken down for copyright reasons, but it wasn't until this NYT article today did the details become clear (there's also a lot of good coverage from BoingBoing).

Generally, the entity that first broadcasts something has copyright rights to the broadcast and has some control over its display elsewhere. Thus C-Span technically has the right to control rebroadcasts of the correspondents dinner.

C-Span, it should be noted, is a non-profit cable channel that was created by cable companies as a public service to provide news coverage of government. From its site:

C-SPAN is a private, nonprofit organization. It does not, and never has, received any government funding. C-SPAN video is not in the public domain. (emphasis not mine)

This is not to say that C-Span owns what happens in the US government, but it owns its broadcast of those events. It seems a little bit unclear what happens when the C-Span broadcast is the only one available; in that event it looks like de facto ownership.

But it seems difficult to reconcile C-Span's non-profit public interest mission with enforcing copyright law in a way that limits access to material of public interest. C-Span's budget should, in theory, be supported by the cable stations that founded it; its business model need not rely on monetizing intellectual property. If C-Span thinks it's in its best interests to charge $25 for a DVD of Stephen Colbert's bit, is it safe to assume then that C-Span is being underfunded by those that created it? Otherwise, such a move would be out of step with its mission. Of course, C-Span's original content would be copyrighted, but I'm focusing here on C-Span's broadcasting of public events.

The law as written gives C-Span the power to act as it is here, but that doesn't preclude us from asking whether or not such is fair. C-Span is the only network that thinks it a good idea (ie. has invested in the idea) to provide non-stop coverage of the US government. In this instance it appears C-Span has gotten lucky, having broadcast a funny bit from a popular tv personality, out of no real work of its own. C-Span doesn't decide the speakers at the correspondents dinner, nor does it do anything else. It merely shows up with the cameras and broadcasts the event on a channel buried deep in the bowels of my cable guide. Sure, allowing C-Span to monetize the unforeseen popularity of a particular broadcast is an "incentive" for C-Span to go about and continue broadcasting these kinds of things, but isn't its incentive to serve the public interest?

I tried calling C-Span, but couldn't get through to anyone who wanted to talk, so I called Comedy Central and talked to someone with the Colbert Report. My thoughts were confirmed in that C-Span is not giving Colbert nor Comedy Central a cut of its DVD profits, and the Colbert Report had to ask for permission to rebroadcast the Helen Thomas bit, even though Colbert produced the piece and it was intended to be shown to the crowd in the room and not particularly to the whole world (thus meaning that C-Span would be granted rights over it because it broadcast the video first).

So let's assume that the kind of economic decision that leads C-Span to flex its copyright muscles is not a problem and we support it. But then we see that C-Span has entered into an exclusive deal with Google to display this video. Also, Google must provide the whole video (a whopping 1 hr and 35 minutes long) rather than just the Colbert bit (barely topping 24 min). From a first amendment standpoint, if I were Colbert, I would be upset. Criticism of the government occupies a sacred place in first amendment jurisprudence and Colbert's brutal satire certainly falls in that lofty echelon of highly protected speech. Because C-Span can decide only Google can show the video, and that it must show the video according to C-Span's rules, what was originally an economic decision based on monetizing content becomes a free speech issue where Colbert's speech is censored by C-Span by how it enforces its copyright. It doesn't matter that the original motivation for this censorship was political, the fact that it results in a form of censorship should be enough cause for concern.

In a way, this whole C-Span affair parallels the recent flap over the Smithsonian exclusive deal with Showtime over the use of its archives for documentary purposes. That deal has generated lots of controversy because the museum is publicly funded and has signed a deal that essentially privatizes the entire collection. The comments to this post on Patry's blog provide a good discussion.

The larger point is not that C-Span or the Smithsonian are necessarily wrong because they are merely following the law and reacting to the incentives that copyright law provides. The larger point is that copyright law as is provides these kinds of motivations - what I would call the wrong kind - in the first place. Holders of copyright have little to no motivation to act in the public interest and often enough there is no market force that encourages that kind of behavior either. When copyright law no longer secures the interest of the public benefit then entities entrusted with protecting the public interest in education (Smithsonian) and free debate (C-Span) cannot be trusted to remain true to their missions, as we can see.

Google, for its part, has been rewarded by C-Span for following the rules that favor entities like C-Span. Though YouTube tried to score a similar deal with C-Span, it was denied, presumably because it didn't seek permission first. In a way, while Google acted appropriately under the law, it can still be accused of not acting appropriately at all because its unwavering compliance in order to draw traffic to its site sets a precedent for such cases in the future.

By the way, here's my favorite part from the video (full transcript):

But, listen, let's review the rules. Here's how it works: the president makes decisions. He's the Decider. The press secretary announces those decisions, and you people of the press type those decisions down. Make, announce, type. Just put 'em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you got kicking around in your head. You know, the one about the intrepid Washington reporter with the courage to stand up to the administration. You know - fiction!

Because really, what incentive do these people have to answer your questions, after all? I mean, nothing satisfies you. Everybody asks for personnel changes. So the White House has personnel changes. Then you write, "Oh, they're just rearranging the deck chairs on the Titanic." First of all, that is a terrible metaphor. This administration is not sinking. This administration is soaring. If anything, they are rearranging the deck chairs on the Hindenburg!

Ironically, the first part of the quote seems an apt description of what copyright owners want these days. Content companies decide what will make money - thus what people should watch. Some intermediary is implemented to deliver that content as is. It is our job to consume and that's all. The extra effort to do anything else is effort misspent. Rather than exercise our creativity, rather than enforce our "fair use" rights, people should just consume what is given and then go and spend time with their families.