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The Man Who Could Kill YouTube

Angry Gorilla

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A single bottle broke the calm, shattering in the late-afternoon sun. Then another...and another. A few men walked into Tom's Liquor and walked out quicker than would be possible if they'd paid. A family followed, tossing groceries into the intersection of Florence and Normandie in the heart of South Central Los Angeles.

Bob Tur, a pilot and photojournalist, hovered above the unfolding chaos in his helicopter, along with his copilot, his camerawoman wife, his lawyer, and a 9mm semiautomatic pistol. Fifteen years later, he still recalls the details of the scene with the precision of a war memory. There was Larry Tarvin, who was pulled from his truck and kicked in the ribs, shoulder, and face. That's when the shots started. Tur's chopper began taking hits as the throng below pummeled another trucker, Reginald Denny, with a cement block, a tire iron, and a fire extinguisher.

Tur knew this was coming, he says, having spent weeks in advance of the Rodney King verdict interviewing gangbangers, church leaders, whomever, asking what would happen if the jury acquitted four white cops. The Crips told Tur they'd try to kill as many white people as possible. So when the call came at 3:15 p.m. on April 29, 1992, Tur, whose fledgling news-video company was pioneering helicopter coverage of breaking events, knew where to go. He arrived on the scene before anyone else and recorded many of the images people now associate with the L.A. riots.

Over the years, he estimates, the Denny tape has generated about $5 million in licensing fees. But Tur has spent almost an equal amount filing lawsuits to protect his content. All of which led to the day last spring when he happened upon an article in The Wall Street Journal about an upstart video-sharing Website whose users were uploading clips of dogs skateboarding and grandmothers belching and, oh yeah, copyrighted news footage. Tur logged on and, after two clicks, watched his Denny video. A few weeks later, like a small bottle tossed before the mob of big entertainment companies like Viacom began their battle for control of digital media, Tur became the first person to sue YouTube for copyright infringement.

Tur wants YouTube shuttered until its parent company, Google, can guarantee his videos and other copyrighted content won't reappear after being taken down. And even if there's a filtering technology out there that really works (despite Google's April announcement of such a technology, Tur is skeptical), he wants a court to say the law doesn't shield YouTube-like services, so he's protected from whatever site becomes the next big thing.

Tur understands why people love YouTube, a democratic clearinghouse of everything from family reunions to detainee abuse, and knows that most videos uploaded are actually owned by their poster. He also recognizes the promotional value and potential revenue stream from a site visited by hundreds of thousands of people each day. But, Tur says, unlike Viacom and other big media companies, his case is about principle, not profit — a claim that would be more suspect if it weren't for his history of fighting similar cases up to precedent-setting courts. He sees his suit as a backlash against Web 2.0 new-media demagoguery — a check on the Shawn Fannings, the Toms from MySpace, and the Chad Hurleys and Steve Chens, who have built empires, he claims, not by creating but by figuring out how to redistribute content online. Which is why Bob Tur just may shape the future of digital media.

"I sued these guys when they had no money, no business plan, and I had nothing to gain but keeping my videos off their site," Tur says over lunch near his Santa Monica office, where he's finishing a new police-chase show for MSNBC. He is trim, boyish, and fidgety, with neatly cropped hair, wire-rim glasses, and a corduroy-jacket-and-jeans combo that's more Hollywood than necessary for a guy who spends most of his days in an editing bay.

Tur narrates many of his own live news events — Malibu brushfires and bank heists and eternally long police chases — with a kind of nervous excitement that keeps viewers glued to their TVs. He shows the same enthusiasm talking about copyright. "When I saw that Google bought YouTube for $1.65 billion, I was dumbfounded! Why would Google get into bed with thieves? They've built a huge audience on the backs of copyright holders — and then they say I have to monitor them? Someone has to stand up against this piracy."

The U.S. Constitution is clear in its desire to protect "authors and inventors" — a premise that has enabled the American entertainment and technology industries to create about $5 trillion worth of the country's largest export: intellectual property. But the same body of copyright law that encouraged Sony to spend $270 million making Spider-Man 3 and that will require, until 2030, that a royalty be paid every time someone publicly sings Mildred and Patty Hill's "Happy Birthday to You" is now under unprecedented attack. At least it is if you believe Bob Tur and content-producing companies like Viacom, which sparked a media frenzy when it announced its own massive lawsuit against YouTube-Google in March. Tur, meanwhile, has received almost no press.

Don't let that fool you. Viacom says it's willing and more than able to spend years in litigation on its dramatic-sounding billion-dollar suit, but the reality is, it doesn't want to. Viacom's case is about leverage — about negotiating a little more money every time someone on YouTube watches a clip of Jason dissing L.C. on The Hills (MTV), Jon Stewart kvetching on The Daily Show (Comedy Central), the fart mask in Jackass: Number Two (Paramount), or content from any other Viacom property. And it's certainly not alone in this desire. An awkward mating dance is currently sweeping Hollywood, as traditional entertainment companies desperate to go where the cool kids hang out court heavily trafficked sites like YouTube and News Corp's MySpace. Hell, even Viacom's sister company, CBS, has a deal with YouTube. Both Viacom and Google know that litigating all the way and answering the question of whether services like YouTube are actually legal could jeopardize revenue for both companies.

"If I believed Viacom would take the case far enough to set a precedent that might benefit small copyright owners, I would certainly step out of the way," says Tur. "But I don't believe they're serious. They want me out so they have more time to negotiate. I think the use of litigation to cut yourself better deals is despicable."

Tur thrives on risk. He's been a medic, a licensed private investigator, a rescue pilot, and Carrie Fisher's boyfriend. At forty-seven, he's had five angioplasties, three technical heart attacks, and a triple bypass, and he still does triathlons. He raises his voice and gesticulates wildly when making a point and uses we as if speaking for a community when discussing his case. ("When we're done, there might not be a YouTube worth visiting.... If we lose, Google will put us out of business.") He doesn't think much of content owners who aren't fighting to make video-sharing sites vet every clip posted.

Tur says new-media agitator and Dallas Mavericks owner Mark Cuban has wimped out by blogging that YouTube steals content and then refusing to sue when films from his movie company are uploaded. "I don't need to spend time trying to fight a behemoth like Google," says Cuban, who has been following Tur's case closely. "Their arrogance makes Microsoft look like a bunch of choirboys. They can afford to spend more money on lawyers than I can on NBA fines."

In 1982, the late MPAA head Jack Valenti famously compared the new VCR to the Boston Strangler — years before home video became the largest profit source for studios. Yet even after the content industry banded together to win a Supreme Court victory that effectively eviscerated Napster and its clones, the music industry is still hurting, due in part to rampant piracy. Would Bob Tur have risked his life and sustained about $200,000 in damage to his chopper if he'd known his riot footage would be available free on the Internet a few hours later? He says no, and that the federal law enacted to balance innovation with content protection — the Orwellian-sounding Digital Millennium Copyright Act — has become a farce.

The DMCA basically says that an "online service provider" is not responsible for the conduct of its users as long as it takes down content when asked, isn't aware of or actively encouraging illegal content, and doesn't earn money "directly attributable" to a violation. But the law was enacted back in 1998, way before the first links from last night's Colbert Report began appearing in your in-box. Is YouTube legal? The truth is, nobody knows for sure because no court has ruled on whether the DMCA even applies to the site, let alone whether it's protected.

Tur intends to change that, and he's made his career backing up his will with his money. In the '80s, when he decided he wanted to fly helicopters, he paid a fire-department training squad to give him the thousand hours of training he needed. He dumped his life savings into a $2 million chopper. When he heard police considered O.J. Simpson the prime suspect in the murders of Nicole Brown Simpson and Ronald Goldman, Tur believed O.J. would go to his ex-wife's grave site and kill himself. He flew toward the cemetery but instead found O.J.'s white Bronco heading north on the freeway; he was alone over Simpson for twenty-five minutes. The footage aired live on CBS, but Tur maintained ownership. His company, Los Angeles News Service, has made millions from O.J. alone.

Even in an industry as lawsuit happy as entertainment, Tur is an extraordinarily litigious man. He has devoted years bringing copyright-infringement cases against heavyweights like the Walt Disney Co., CBS, and the Reuters news service up to influential appellate courts. "You often see the little guy push cases in ways the big companies don't," says John Palfrey, a professor of Internet law at Harvard. "Tur doesn't have much interest in the business concerns, so he's more likely to bring one of these cases to fruition."

Tur's suit will likely hinge on how the DMCA is interpreted, so he's become an expert on the details. He claims YouTube has placed ads directly adjacent his videos, therefore profiting directly from them. YouTube has since stopped doing this, which Tur believes proves it knew it was wrong. But Tur insists YouTube is still breaking the law by selling any advertising anywhere on a site that features copyrighted material — a fact he says YouTube's top guys must know.

"The law talks about red-flag knowledge," says Cuban, no stranger to the DMCA. "If you know there is infringement and it's obvious to all involved, that's red-flag knowledge. Want to bet that if you look at the search history of Sergey and Larry, they have watched infringing videos? Is there anyone that doesn't know they can find stolen videos on YouTube? That's going to be a red flag to any judge."

Tur says he has been approached by Viacom to step aside so the big boys can duke it out. Michael Fricklas, Viacom's top lawyer, says Tur's case is strong but Viacom's is stronger: It's alleging hundreds of thousands of infringements while Tur is basically complaining about a few thousand views of Denny and O.J. Plus, a big media company is simply better equipped to subpoena the needed documents and top-level testimony it will require to win the case. If YouTube employees have posted copyrighted clips, as has been rumored, Viacom is going to know it before trial. "I'm not sure Tur can afford to get to that point," says Fricklas, who maintains that Viacom is willing to deploy every legal weapon in its formidable arsenal for as long as it takes. But he also acknowledges that Viacom would settle if Google offered damages for what's already occurred and either an effective filter or a reasonable license fee.

A possible sign that Google is also taking Tur's case pretty seriously is its refusal to speak about it — though Michael Kwun, the Google lawyer spearheading both the Viacom and Tur defenses, has commented fairly freely on the Viacom suit. In The Washington Post, Kwun alleged the suit is "an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own."

YouTube also has plenty of defenders who aren't on its payroll. "What universe do [Tur and Viacom] live in where they think they don't have to police their copyrights? I can't wait to see these bozos get slaughtered in court," says Cory Doctorow, the digital-rights advocate, coeditor of the popular Boing Boing blog, and science-fiction author. "Copyright holders have an incredible gift under the DMCA. They can force YouTube to take down videos without the expense of going to a judge."

Indeed, the DMCA arguably offers content owners the best of both worlds because it lets them decide on a case-by-case basis whether the promotional value of letting "Dick in a Box" bounce around the Internet is better for them than clamping down on it. Doctorow scoffs when it's suggested that content producers may be deterred by placing an expensive burden of policing a massive Web community like YouTube on a company like Viacom (which maintains that it spends $100,000 per month sending YouTube takedown letters) or on an individual like Tur. "Look around. It's laughable to say the Internet discourages creativity. If these guys can't figure out a way to make money online, they should find another business. The Constitution doesn't guarantee Viacom long-term profitability."

Tur realizes his case, which could drag on for years, is probably the biggest risk of his career. But he'll keep pressing, he says, because he doesn't trust anyone else — not Viacom or the plaintiffs in a separate class-action suit filed in May — to step up, and it won't be long before Web video merges with traditional TV.

"If we lose, what's to stop Google from setting up pay-per-view services or even exhibition halls for Web video — and they could let users show whatever they want to and just take it down the next day after they get a letter."

Tur is getting riled up again. He steadies himself.

"I'm going broke," he says. "I've mortgaged my kids' futures for these cases. I've lost my wife — she got tired of fighting and wanted more security. I've almost died from the stress of it. But the incentive must be to create. And if someone like me doesn't stand up for content creators, we sure as hell can't count on the big corporations to do it for us."

Tur apologizes, but he's got to get back to his editing bay. He's been working night and day finishing the MSNBC show. The network has bought only one episode, he explains, and it better be good so they'll buy more. And at least for now, that's how Bob Tur makes his living.

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