YouTube and Viacom (VIA), as part of their ongoing dispute over copyright infringement, have filed their witness deposition wish lists with judge Louis Stanton in New York’s Southern District Court. Included in the list from Viacom’s counsel, led by Donald Verrilli of Jenner & Block, are YouTube founders Steve Chen and Chad Hurley, while YouTube’s lead counsel, Philip Beck of Bartlit Beck Herman Palenchar & Scott, is calling on Viacom chairman Sumner Redstone and CEO Philippe Dauman.
But YouTube is also asking for Jon Stewart of The Daily Show With Jon Stewart and Stephen Colbert of The Colbert Report, hosts of the two highly rated shows on Viacom’s Comedy Central, who’s clips have proved just as, if not more, popular online. Sadly, this by no means guarantees they’ll ever take the stand — the judge could deem their testimony irrelevant, and with a jury trial months away at the earliest, there’s still plenty of time for a settlement to be negotiated. But that can’t stop me from wondering, “What if?”
New York Southern District court, the Honorable Louis Stanton presiding. Defense counsel Philip Beck calls Stephen Colbert to the witness stand.
Philip Beck: Mr. Colbert, did you not encourage viewers to re-use material from your show?
Stephen Colbert: Yes, but I didn’t ask them to put their work on YouTube for just anyone to watch for free. I asked them to send their submissions to me. As the legal property of Viacom International, my plan was to publish a special commemorative Colbert Report: Green Screen Challenge DVD, available for only $9.95 exclusively at Wal-Mart, where you can find everyday low prices. My friend Bill Gates was working on an especially restrictive new Digital Rights Management technology just for the occasion — it would check to make sure you weren’t on Homeland Security’s “No Fly” list, preventing terrorists from funding their attacks on freedom with profits from illegal piracy.
Beck: But wouldn’t that amount to free work on the part of your viewers for your benefit?
Colbert: Look, profits make me happy, and I have a constitutional right to the pursuit of happiness. And how better to make profits than to have people working for you for free? I’m a traditionalist, and as a country we have a long tradition of making people work for free — and I, good sir, am proud to support other people who are willing to give their lives to protect those values.
Beck: Didn’t you yourself parody the Electronic Frontier Foundation, who had brought suit against your employer, by mimicking a video they posted online?
Colbert: Let me tell you a story. I was sitting on the promenade deck of Sumner Redstone’s yacht, anchored off his private island in the South Pacific, and after dispatching Lionel for a fresh gin and tonic, I turned to Philippe Dauman and jocularly quipped, “You know, Philippe, why am I allowed to mock our opposition in an active court proceeding in front of millions, while my fans posting clips of the Report in order to laud my genius are issued cease and desist notices?” Philippe — oh, Philippe, he can be so witty at times — turns to Sumner and says, “Fire whoever just broke Stephen’s teleprompter.” Ho ho! With such bon mots, those two would be a lock to win the next Test Pilots contest from Comedy Central.
Donald Verrilli declines to cross-examine the witness. The defense calls Jon Stewart to the stand.
Beck: It’s been said that the clip of you accusing the hosts of Crossfire of “hurting America” has been viewed far more often online than on television.
Jon Stewart: Yes, and how typical is it that Tucker Carlson ends up with all the viral attention, and not my show where I raise the tone of civil debate with self-consciously bad impersonations of officials in the Bush Administration? Can’t you see how unfair this is to me…and, ahem, Viacom? You don’t see CNN suing YouTube, do you?
Beck: So you do believe that fans posting clips from shows serves a promotional purpose?
Stewart: Whoa, doctor! When pundits with books to sell and candidates with a demographic to reach out to agree to appear on the show, it’s with the understanding that I’m beholden to the same media overlords that they are. As a fake news professional, I treat that obligation with respect. You can’t trust the fake news amateurs on the Internet to provide the kind of nuanced context that, say, a double-entendre in an over-the-shoulder title graphic provides.
Beck: But much of your show is comprised of clips from other shows, edited for humorous effect. While I’m no comedian, I think that could be called the show’s “shtick.”
Stewart: Have you seen Big Daddy or Death to Smoochy? Not so much with the comedy. But seriously, folks, basic cable brings with it certain responsibilities. And the most sacred responsibility is to fill the time between commercial breaks as cheaply as possible. And if we do that by rehashing clips from MSNBC, well, they understand, because they have the same responsibility. But when people do this non-commercially, they aren’t beholden to this imperative, ergo, ipso facto, tempus fugit, etcetera, they can’t claim to be serving the public interest. Am I right, or am I right, people?
Beck: I rest my case.
Stewart: Transcipts of this proceeding available on bookshelves now! Philip Beck, everybody!
Louis Stanton: Order in the court!
Stewart: We’ll be right back with your “Moment of Zen.”
Yes, that’s Jon Stewart’s famous appearance on CNN’s Crossfire, thoughtfully hosted by Viacom-owned iFilm, above.