The EFF-YouTube Celebrity Death Match

The Electronic Frontier Foundation (EFF) held its 16th annual Pioneer Awards Ceremony yesterday in San Diego, with a special treat for all those tired attendees of the Emerging Technology Conference who had been listening to keynotes and presentations all day: Internet billionaire Mark Cuban debated EFF staff attorney Fred von Lohmann on the legality of YouTube.

Cuban is known to be a long time supporter of the EFF. He financed the ill-fated defense of the P2P operator Grokster all the way to the Supreme Court. But Cuban has recently fired shots against YouTube and Google for allowing its users to upload commercial content. He called Google’s attitude towards copyright owners arrogant, applauded Viacom’s billion-dollar lawsuit and even filed some subpoenas of his own against the popular video outlet.

On Tuesday night, Fred von Lohmann took it upon himself to ask the question that has been on every one’s mind for months: What the heck happened to Mark Cuban, the copyfighter?

Cuban used the the evening to shed some light on his position. He thinks Google should be held liable for copyright infringements because YouTube doesn’t establish commercial relations with its users, in effect allowing them to upload videos with fake accounts and without any verification of their identity. This distinguishes the site, in his eyes, from traditional web hosters, who are protected from the misdeeds of their users through the “safe harbor provisions” of the DMCA. Says Cuban: “If you are a web host it should be natural to know who your customers are.”

Von Lohmann disagreed with the notion that there is a clear line between YouTube-like sites and traditional web hosting businesses. He illustrated his point by bringing up other companies that are also offering their services for free. “What about Hotmail? What about free web hosters? What about Six Apart?” he kept asking. “What about Pando? Should they be held liable too?” Cuban took safety in a very sound-bite-like demand that companies shouldn’t “hide and coward” behind the DMCA.

The blogging billionaire quickly came back from this temporary moment of weakness by pointing out that YouTube doesn’t just host files, but transcodes them as well — and “that’s not what the DMCA intended.” Cuban also said that Google was aware of the fact that a good portion of YouTube’s business was based on copyright infringement.

But he did offer the company an olive branch. He promised to stop his one-man campaign against YouTube as soon as the site adopts content filtering for every upload. Asked by von Lohmann how good the filters would have to be, he replied: “Even if they just flipped through things — I would be fine with that.”

So who won the fight? Mark Cuban definitely made up some points with the geek crowd, appearing much more rational that in some of his more heated blog posts. Von Lohmann, on the other hand, took the traditional EFF approach of defending the small inventor – something that’s hard to sell when the little guy just got bought for 1.6 billion dollars. We call this one a tie, and can’t wait for a rematch.