YouTube’s deal with Warner: I’ve agreed with Fred von Lohmann that the DMCA provides substantial, probably complete, protection for YouTube against claims of copyright infringement, whether direct or contributory. But now I wonder about this deal, which allows Warner to choose to share ad revenue with YouTube when a user-posted video uses Warner music. Given that now, YouTube will make more money from a video with unlicensed, unWarner music than a video with licensed Warner music, isn’t it now directly profiting from the fact that the other music is unlicensed? A possible answer is that these aren’t the only two possibilities: Many videos may contain no infringing content at all; this deal just takes some of the videos out of the calculation. As long as YouTube isn’t making more money on videos with unlicensed music than on videos with no infringing music, it’s not excluded from the safe harbor. But not everyone will agree with this analysis.
A separate issue: apparently Warner took on the responsibility of licensing the musical work in such cases. Wow! Obviously, the deal makes no sense for YouTube if it’s only got half the necessary rights, and yet Warner has committed to a lot of work for what might be a low payoff. I’d love to see a detailed analysis of mechanical rights, sync licenses, and the other components of this deal.
And finally: The reporting notes that Warner isn't giving a blanket license. It can still do takedowns for anything it doesn't like. Put a Warner song on your amateur porn or anti-Bush (or anti-Obama) screed, and I bet you that Warner's not going to go for an ad revenue split. This is why blanket licenses and pay-per-use solutions are not enough to allow ordinary users a full ability to remix; when it comes to derivative works, copyright owners are just not able to relax.
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