You can’t slap Google around

I LOVED NAPSTER. I listened to music more because of it. I bought more music because of it. And I count myself among the many who would have gladly paid $20 a month for the privilege to keep using it. ITunes is great, but Napster combined whimsy, variety and convenience in perfect combination. Tough luck for me. The courts, pushed by the recording industry, decided that what I, and many music consumers, wanted was against the law. Napster was being used to steal and illegally share music. That’s wrong. So they sued it out of existence.

So when Viacom decided to sue Google last week for the sins of YouTube, its prize online video acquisition, I was tempted to think: “Here we go again.” Viacom owns the Paramount and DreamWorks movie studios, and the MTV, Comedy Central, VH1 and Nickelodeon cable channels. It’s angry that a lot of its video content -- specifically, many episodes of “The Daily Show,” “The Colbert Report” and “South Park” -- is showing up unauthorized on YouTube. Indeed, Viacom says in its suit that YouTube is nothing short of a rogue operation -- just like the Recording Industry Assn. of America talked about Napster.

“YouTube has harnessed technology to willfully infringe copyrights on a huge scale.... YouTube’s brazen disregard of the intellectual-property laws fundamentally threatens not just plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.”

That’s pretty scary rhetoric from one of the biggest media companies in the world. Chairman Sumner Redstone is one of the toughest executives anywhere. It seemed as if Silicon Valley and Hollywood -- which appeared to have reached detente -- were gearing up for war again.

In truth, the comparison between the Napster and YouTube lawsuits is easy but silly. They have little in common. Yes, they are both about copyright in the Digital Age. But the business and technological landscape that surrounds them is completely different. When the recording industry went after Napster seven years ago, it was a united front, and Napster made it clear that it wasn’t going to stop letting users share music unless forced.

Today, YouTube makes some movie and television executives uncomfortable, but it makes many others drool with excitement. It’s become the easiest and cheapest way to reach a global audience. Do you have a show or a commercial that you want to try out? Put it on YouTube and let the global free market decide whether it’s any good. Do you have a successful show? Put your outtakes up on YouTube and make it a phenomenon.

Chevrolet last year used YouTube to enable a successful user-generated advertising contest for the Tahoe SUV. Marc Shmuger, chairman of Universal Pictures, said earlier this year that for each new movie, the studio sends out studio-approved graphics, clips, sound effects and music videos to YouTube in hopes they will be shared and generate buzz. How else to explain that while Viacom is suing Google, CBS and others are busy negotiating and signing distribution deals? “I think that the marketing side ... and the copyright-protection side have contradictory impulses,” Shmuger said.

And Google is working hard to take down pirated material from YouTube, which, unlike the case with Napster, represents a small minority of its content. Viacom says it’s not working hard enough. Perhaps. But Google has hardly dug in its heels like Napster did. Google and Viacom could solve this problem tomorrow if they wanted to. Google certainly has the brainpower to write better software to find pirated content. But it could do it faster and better if Viacom helped by, say, embedding invisible digital ID tags every time someone downloaded a show onto a TiVo or computer. That way, illegal uploads to YouTube could be easily found. My digital camera does this when I take a picture. How hard can it be?

So, why the lawsuit? Simple. Billions of dollars are at stake, and the law -- the Digital Millennium Copyright Act -- is vague. It was passed in 1998 before anyone could have anticipated the world we live in now. Viacom sees its business model -- producing movies and supplying programming for television channels -- under attack and thinks it can get an edge either in negotiations with Google or, more broadly, by using the courts.

It better rethink. When it comes to lawsuits, Google is unlike any company Viacom has ever encountered. On issues of copyright, trademarks and the like, Google likes a fight. Talk to Google Chief Executive Eric Schmidt or founders Larry Page and Sergey Brin, and they will tell you that central to their mission of organizing the world’s information is the belief that the laws surrounding intellectual property need to be updated to reflect the Digital Age. It should be no surprise that Google has hired more than 100 in-house lawyers and an army of outside firms that are specialists in this kind of law.

Look at that trademark suit with insurance giant Geico a few years back. Yahoo settled immediately because it rightly feared that a court fight with a Warren Buffett-controlled company might be bad for business. Google fought it for a year before settling. Or remember the Department of Justice’s subpoena for consumer Web-search data last year? Microsoft and Yahoo complied immediately. Google pushed back in court and forced the request to be significantly narrowed. It is spending hundreds of millions of dollars to digitize almost every book on the planet and make them searchable, even though no clear payoff is in sight and a huge court battle with book publishers in the U.S. and in Europe is looming.

As for financial staying power, Viacom is a pipsqueak compared with Google. Its revenues are about the same, at $11 billion, but Google is far more profitable, has no debt and has 10 times more cash -- $11.2 billion to be precise. Napster had no money for a protracted legal battle. Google could take on Viacom -- and the rest of the entertainment industry, for that matter -- until the Supreme Court settled the issue.

All of which leads to the following theory: Maybe a knockdown, drag-out court battle is exactly what Google is hoping for here. The resolution would provide desperately needed legal clarity, help fuel Google’s insatiable appetite for changing the world and be good for consumers and businesses -- all at the same time. Do you think Viacom thought about that before it pulled the trigger on the lawsuit? I doubt it, and I think it is going to be sorry for having not done so.