Whitney Broussard, an entertainment lawyer specializing in music, says YouTube seems to be protected by a safe harbor in the Digital Millennium Copyright Act of 1998, which says that in such cases with streaming media, if the copyright holder protests and asks YouTube to shut down the link, and if the company promptly complies, then it is legally clear. (Supan of YouTube said the same thing.)
Of course, shutting down a particular link will not ensure that a bootlegged video will just go away. Andrew Solt of Sofa Productions, who holds copyright on the Ed Sullivan Show library, said he recently spent two days with a lawyer and two assistants preparing the necessary paperwork for YouTube to eliminate its links to uploaded bootleg Sullivan shows. YouTube complied. The next day, Solt said, they were all online again, presumably uploaded by someone else.
Battle lines emerge
YouTube's simplicity has been an attraction for bands, too. Plenty of them, or their record labels, have been uploading video footage to YouTube for promotional purposes, YouTube said -- they include current groups like We Are Scientists, Pretty Girls Make Graves, Early Man and Taking Back Sunday. (Even Nike has begun to use YouTube to its own ends, the Web site says, stealthily putting its products in sports video clips that don't look like ads.) The other day, a publicist for Sparks, an aging cult band with a new album, suggested that I go to YouTube to look at a 30-year-old clip of the group on television, which had not been uploaded by the band or its label.
In my own YouTube searches, first I went back in my past, curious to see again the things that I have been replaying in my head over the years from chance television encounters -- like Nat King Cole and Ella Fitzgerald on Cole's television show, or Public Image Ltd on Top of the Pops, or Black Sabbath in an early-1970s European concert.
But quickly I found my way to other things, which I had heard about but had filed into myth, films I thought I might never see: clips from the notorious, rarely shown Bob Dylan documentary Eat the Document; a staggering James Brown performance at a Boston concert in 1968; Hound Dog Taylor at a mid-1960s blues festival; Black Flag throwing down at a club in 1984, when Henry Rollins was a big weakling. Brazilian music fans have begun to upload their collections, and they have their work cut out for them: the history of Brazilian popular music over the last 50 years has been closely intertwined with television. There is very little jazz as yet.
It's stupefying to know what's out there. Perhaps its shady proliferation will hasten official, high-quality versions, videos that do not provoke headaches and could properly expand everybody's understanding of history's greatest performing artists.
"I don't think there would be a market for all this stuff on YouTube," Peck said, "if everyone -- artists, labels, publishers and rights holders -- could get together and find reasonable ways to release it."
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