Mark Cuban came through New York yesterday and told a group of advertisers the YouTube founders “are just breaking the law.” Really, Mark? In fact, that’s far from clear, and Mark knows it. YouTube has substantial protection under the DMCA section 512 safe harbors, as Fred Von Lohmann and others have made clear. They appear on particularly firm ground in terms of section 512 (a), the law designed to protect people like Cisco from liability when they route infringing bits. Just like Cisco, the argument goes, YouTube is at the whim of an automated system where users are choosing to send those bits. While the DMCA safe harbors have not been tested much at all in this context, Cuban knows very well that YouTube could easily win this one.
So, why all the fuss? Cuban has an interest in the outcome of the online video wars. He’s a significant investor in Red Swoosh, the p2p content delivery network. I have friends at Red Swoosh, and I like what they do. Their technology makes YouTube look like the kids’ stuff it is. If Red Swoosh won the video wars instead of YouTube, the Internet would be a better, more efficient place with higher resolution video. The trouble is, Cuban would also stand to make a heck of a lot of money, and I’m struggling to find another explanation for Cuban’s crusade. He knows perfectly well he’s overplaying his hand with his predictions of YouTube’s demise. He knows perfectly well the legal questions hang in the balance, even tilting in YouTube’s favor in my own reading of the DMCA safe harbors. So why’s he doing it?
I’d love to hear any other explanations out there, as I like Cuban’s general style and thinking. I’d love someone to tell me I’m wrong.