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Viacom Says "YouTube Depends On Us" 163

Posted by kdawson
from the one-sided dept.
Anonycat writes "Michael Fricklas, a lawyer for Viacom, has an opinion piece in the Washington Post laying out Viacom's side in their $1 billion lawsuit against YouTube. Fricklas asserts that the DMCA's 'safe harbor' provisions don't apply because YouTube is knowledgeable to infringement and furthermore derives financial benefit from it. He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them. Fricklas caps the argument by stating, 'Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws.'"
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Viacom Says "YouTube Depends On Us"

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  • by Mateo_LeFou (859634) on Monday March 26, 2007 @06:54AM (#18486345) Homepage
    Grokster, if you recall, was explicit about saying that the company was guilty of contributory infringement only because they *encouraged unauthorized copying. The argument that "they benefited" from this copying was insufficient to that holding. Now here's the argument again...

    Double dipping with the same argument should just get a case thrown out on the same day it's filed.
    • by MindStalker (22827) <mindstalker@gmail. c o m> on Monday March 26, 2007 @07:29AM (#18486547) Journal
      I thought a part of the Napster opinion was that a significantly large share of their material was infringing. Now I know this isn't true for Youtube as it seems most of their content is user created. But expect Viacom to use this argument.
    • by StormReaver (59959) on Monday March 26, 2007 @08:27AM (#18487037)
      IANAL, yada, yada...

      "Grokster, if you recall, was explicit about saying that the company was guilty of contributory infringement only because they *encouraged unauthorized copying. The argument that "they benefited" from this copying was insufficient to that holding. Now here's the argument again..."

      I think you misinterpreted the decision. The ruling said that the plaintiffs didn't need to show that the defendants benefited from unauthorized copying by 3rd parties because the defendant's software's primary purpose was to encourage that unauthorized copying. The latter was sufficient to show liability for 3rd-party copyright infringement.

      That being said, it's quite a stretch to apply that reasoning to YouTube. In fact, that ruling works in YouTube's favor as YouTube is marketed for the purpose of sharing user-created content. That it is being used (even substantially) for 3rd party copyright infringement is not solely the issue to determine if YouTube is liable for its user's actions. In the Sony case, the Justices noted that VCRs were largely used for 3rd party copyright infringement, but were still protected because they had substantial non-infringing uses. Since YouTube is complying with the DMCA by providing a means for copyright holders to mark their content for removal (and the DMCA requires copyright holders to shoulder the responsibility for finding and marking infringing materials), and assuming that YouTube removes the infringing content upon notification, then I think YouTube will readily prevail.

      In the Grokster decision, Justice Breyer noted that the Court cannot possibly decide whether a technology has future non-infringing uses when even professionals in the field cannot agree. As such, it strongly implies that if a reasonable argument can be made for probable substantial non-infringing uses, then it's better to err on the side of the new technology than to decide against it and stifle future commerce.

      Grokster is little more than a footnote regarding YouTube, and seems to have very little applicability to it.
      • by Kjella (173770)
        I think you misinterpreted the decision. The ruling said that the plaintiffs didn't need to show that the defendants benefited from unauthorized copying by 3rd parties because the defendant's software's primary purpose was to encourage that unauthorized copying. The latter was sufficient to show liability for 3rd-party copyright infringement.

        I think that you need to read it again:
        "Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or o
  • by Random BedHead Ed (602081) on Monday March 26, 2007 @06:55AM (#18486351) Homepage Journal
    I've watched plenty of Colbert and other Viacom clips on YouTube, but I think it would still be valuable without them. I frequently view non-Viacom stuff, so saying that YouTube is dependent upon Viacom is an overstatement.
    • by Greyfox (87712) on Monday March 26, 2007 @08:16AM (#18486909) Homepage Journal
      I've never watched a Viacom clip on YouTube. Whenever YouTube makes the news (Other than when they're being sued) it's never because of a Viacom clip. Pretty much everything exciting about Youtube is due to what some guy created on his home computer, not something that Viacom created. What really has Viacom execs shitting their pants is the idea of thousands of users creating compelling works that Viacom doesn't own. It's the idea that you don't need billions of dollars to create content and reach millions of users. It's the idea that millions of users might actually want to watch something that some guy created in an evening's worth of work on his home computer.
      • Re: (Score:3, Insightful)

        by *weasel (174362)
        At this point, youTube definitely doesn't depend on Viacom content.

        But the problem with your broader argument is that the most popular youTube clips are predominantly not-legally posted. Just stroll through the most-viewed clips [youtube.com] every now and again and tally up home-made vs capped videos.

        Sure, Viacom is the free-preview of video broadcasters following the RIAA's road to nowhere - but in the interim youTube really is deriving quite a bit of its value from not-legally-posted videos.
        • by freakmn (712872)
          One thing that I noticed when looking at the clips is that some of the content that is not homemade is still legally posted. One example of this is content from the user NBC [youtube.com]. There are quite a few SNL clips that are in the most-viewed videos, but they are put there by NBC, so they are legit. I don't know about any of the others there, but it is possible that some of the other videos that are not homemade are still legally posted. Just something to keep in mind when looking at those results.
        • Of the 20 most viewed clips, 10 are non- U.S. soccer games (may or may not be infringing, depending on copyright law and permissions in home country) 1 is a U.S. Basketball game (probably infringing) 1 is a Comedy Central clip (infringing) 3 are from NBC, 3 are user-created, and 2 seem like Japanese newscasts. So of the top 20, we have 2 infringing, 12 maybe infringing, and 6 legal. In the top 10, though, we have 1 infringing, the 6 legal, and 3 probables (the japanese newscasts and one sports clip).
          • by monkeydo (173558)
            Just because they are user created does not mean they were posted on youtube by the creator. Plus many of the user created clips use copyrighted music, so those may be infringing as well.
        • Just stroll through the most-viewed clips every now and again and tally up home-made vs capped videos.

          That's missleading. You need to know what percentage of the traffic the top ten make up as a whole before you can say that Google is living off other broadcasts. The best indicator of this is netflicks, which goes through the entire catalog of film much more than you would expect. The "blockbuster world" is an artifact of previously inferior distribution that was unable to keep up with people's broad

  • by Anonymous Coward on Monday March 26, 2007 @06:58AM (#18486361)
    Al Gore still has the one up on creating the internet. We should all just sue him.

    Anonymous Cow.
  • they know.... (Score:5, Insightful)

    by gravesb (967413) on Monday March 26, 2007 @07:00AM (#18486375) Homepage
    They know Grokster doesn't really apply. They are pushing the envelope, and hoping to widen the precedent. If they can, it makes future legal battles much easier. Of course, it also eliminates DMCA protection for anyone who makes a profit, thus eliminating the only thing about the DMCA that was good for consumers.
    • by pmc (40532)
      Of course, it also eliminates DMCA protection for anyone who makes a profit

      There is (probably) no DMCA protection if you make a profit - I say probably because that clause is particularly badly-worded. The point of that get out I think was if an ISP let server space to somebody who infringed copyright then provided that the ISP didn't make any money out of the fact of the infringement then they were in the clear (but they could make money in the normal course of business by renting the server space).

      What Yo
      • Actually youtube doesn't have advertisements on the actual video pages just the rest. This is probably purposeful.
      • Re:they know.... (Score:5, Insightful)

        by thebdj (768618) on Monday March 26, 2007 @07:32AM (#18486563) Journal
        How is what YouTube any different? Say your mythical ISP in question was, Geocities (now Yahoo). They have given you server space to host with for free, but this free page comes with advertising. Now, you are the one uploading infringing content, but they are the ones directly making money off of the pages with infringing content. Using your argument, the hosting company no longer is protected by the safe harbor clause and is now liable for damages. Of course, the company in question is not the one uploading the content, merely hosting it. Also, a request could be sent (and probably would be sent) to the host company for removal and not the "owner" of the page, since anonymity usually means going through the host company first anyway.

        In the end, I think YouTube is no different then a web hosting company offering free space, so long as you put up with their ads. They do not directly control what is uploaded and therefore cannot be liable for its uploading. The fact that they make money should have absolutely nothing to do with it, since the DMCA does not say, "if you make money, this clause does not apply." I believe any ruling against YouTube that went against the safe harbor clause would go all the way to the Supreme Court, which might actually agree with what Congress apparently intended with this horrible law.

        If any argument saying they make money off of infringement, and are therefore liable, is successful, it would destroy the safe harbor clause.

        I'm not convinced of their argument that they are genuinely ignorant either - enough stuff seems to get pulled at quickly for decency reasons makes this seem weak.

        I am pretty sure YouTube works on a reporting system for decency issues. As such, if someone tags an item it gets reviewed and pulled. I do not think many people are going around YouTube tagging infringing content, their reasons could be various. The DMCA puts the responsibility on the copyright holders to provide takedown notices. Viacom is not on good ground with the law in this case.
        • exactly, YouTube isn't the only one that'd be gutted by this lawsuit and videos aren't the only copyrighted items that are posted on websites. if profiting by the service is the decider, ESPN had better hope that no one uploads a copyrighted image for use as their fantasy team logo. text can be copyrighted also, so you'd better hope no one reposts copyrighted text onto your blog that has advertisements. what are the provisions that Slashdot needs to have in place to prevent posting of text that violates
        • Re: (Score:2, Informative)

          by BadMrMojo (767184)

          The fact that they make money should have absolutely nothing to do with it, since the DMCA does not say, "if you make money, this clause does not apply."

          That's not part of the DMCA, but that is a factor in determining whether use of copyrighted material is a vicarious or contributory infringement.

          Rather than being part of the safe harbor clause, money is part of the definition of whether something is infringement or not. The financial benefit is important on a different level of the issue and is still relev

      • People tend to mark the decency stuff alot faster than copyright stuff.
      • Re:they know.... (Score:4, Insightful)

        by mysidia (191772) on Monday March 26, 2007 @07:54AM (#18486717)

        This makes them liable. I'm not convinced of their argument that they are genuinely ignorant either - enough stuff seems to get pulled at quickly for decency reasons makes this seem weak. But that probably doesn't matter.

        Probably due to the community clicking the "flag as appropriate button" and selecting the appropriate item from the drop down.

        Note that any member of the site can mark any video as offensive; however, there is no way they provide for you to report a video as a copyright infringement, unless you are the copyright owner. There is a separate procedure for that. I believe the flag/'mark as offensive' feature means that Youtube is able to remove offensive content without personally reviewing every video -- in fact, potentially: the site can programmatically remove content, possibly automatically close the uploader's account and wiping out their other videos, without any administrative intervention whatsoever, if enough of the Youtube users clicked "flag as offensive".

        For one thing, only the copyright owner can really be sure the content is infringing -- for all Youtube knows, you have made a private deal with the copyright owner allowing you to display the content.

        Almost EVERYTHING with any artistic merit that is uploaded to Youtube is automatically copyrighted, without question, the question of whether something is infringing or not is more complicated than "Does your video contain copyrighted material?".

        There is a possibility that a video includes copyrighted material, AND the copyright owner DISAPPROVES of its use, and it can still be allowed fair use within copyright law.

        Youtube has no way of knowing whether a court would find your video to be infringing or whether it would be protected fair use (free speech).

  • by Organic Brain Damage (863655) on Monday March 26, 2007 @07:04AM (#18486405)
    lobby Congress to alter copyright law in the USA to change the duration to something more reasonable, like 50, 60, hell, even 70 years from the date of original publication, I'd be more sympathetic to their case. With the current: "nothing from the date of the creation of the Mouse will ever enter the public domain situation", I've got zero sympathy for copyright holders.
    • by suv4x4 (956391)
      With the current: "nothing from the date of the creation of the Mouse will ever enter the public domain situation", I've got zero sympathy for copyright holders.

      Oh, that was uncalled for :(

      Signed, the copyright holder of over 1500 Slashdot comments.
    • by elrous0 (869638) * on Monday March 26, 2007 @08:03AM (#18486809)
      I remember back in college when we had to study copyright issues in our graduate level history classes ("fair use" for academics and all that). We were taught the whole "70 years and it's in the public domain" thing. The law has been changed so many times since, and thinned out so much, that no one even bothers TRYING to teach copyright issues anymore. Essentially, the new paradigm is "If it's not in public domain already, it probably never will be." And FORGET trying to teach fair use in the post-DMCA era.
      • by Ant P. (974313)
        That's the wrong idea. They should be teaching about fair use at least as much, and in addition teach people who's responsible for it being stripped away. If nobody knows about it, nobody can fight to keep it.
    • Yeah, because of Disney we should rip off any small artist, writer, composer, etc. Nice outlook there. Got a good rational for ripping.... not.
    • by necro81 (917438)

      nothing from the date of the creation of the Mouse will ever enter the public domain situation

      Are you referring to this Mouse [google.com], or this Mouse [google.com]?

      I think that the current issues of copyright are nicely bracketed by the two: the advent of the Internet making copyrighted content easier to sell, spread, and steal; and the hard-nosed tactics of Disney to keep their stuff copyrighted indefinitely.

    • lobby Congress to alter copyright law in the USA to change the duration to something more reasonable

      Part of the problem is that the developed nations are in a race to the bottom. Nobody can fix their own laws without running afoul of TRIPS [wto.org] in particular. It looks like the only way to truly reform the IP regime is to do it at the international level.

  • Simple solution (Score:3, Insightful)

    by edwardpickman (965122) on Monday March 26, 2007 @07:07AM (#18486417)
    They need to take responsibility and self police. The company started out as viewer clip oriented but when large numbers of copyrighted clips started appearing they looked the other way. They had to know this was coming they were just milking the situation as long as they could. Given the volume of copyrighted clips they are ineffect claiming them as assets but they have no right to gain benefit from them. They can just say tell us what is copyrighted and we'll take it down but you might as well have a warehouse of a few hundred thousand items with say a third of the items that belong to another company. Is it reasonable to say just tell us what is your's when you removed the items without their permission. It's obvious in this case what belongs to the wronged party but you are saying you'll only return the items the other party identifies. They need to start an approval process like most other sites. Some one has to review at least part of the clip before it's posted. This should be done to begin with to avoid illegal content from being posted. I'm not talking copyrighted I'm talking kiddie porn and such.
    • Re: (Score:3, Informative)

      by pipatron (966506)

      How do you know if a clip is legal to share or not? It could fall under fair use, it could be released to the public domain, it could be completely user created, etc. In some cases, it's obvious, but in most, it's not.

      The only one that knows for sure is the content owner, which is why YouTube says that the content owner has to inform them about any clips that gets uploaded without permission, in order to be able to remove them. No one else can.

    • by Kjella (173770)
      This should be done to begin with to avoid illegal content from being posted. I'm not talking copyrighted I'm talking kiddie porn and such.

      My god, what a "think of the children" argument. The first normal guy to see it would flag it, it'd be promptly taken down and the logs handed over to the FBI. Perhaps there should be a mandatory review for free webhosts (and on each update) too? Myspace? Blogs? Photo album sharing sites? Yahoo groups? Taking content down is the common approach, not preapproving it. Copy
    • by Alchemar (720449)
      By making an attempt to censor the information themselves, then youtube loses their common carrier status and the safe harbour clause. They are no longer hosting information that is from a third party. The third party submits it to them, and they are the ones posting the information after review. This is what the coorporations that deal in nothing but taking the copyrights from the authors and claiming it for themselves wants. If they can get a ruling that requires any company that host content that mig
    • 1. Post (someone else's) copyright material on one of Viacom's sites
      2. Sue them.
      3. Win (by using their own "Viacom depends on us")
      4. Shut them down.

      Simple.

      (Chance of happening - slim to none)
    • Re: (Score:2, Insightful)

      by jvkjvk (102057)
      Wrong. Completely and utterly.

      The new provisions in the Law are that the copyright OWNERS must self police the intarweb. AND THEN inform the service providing the copyright materiel that copyright infringement is taking place. THEN it is the responsibility of a service like YouTube to self-police. Not before.

      Wah, wah, wah. Call me flamebait but the copyright holders dug themselves this grave (who *really* sponsored the DMCA and tried to kill Fair Use?) and I hope they are buried in it, personally.
    • by kindbud (90044)
      They need to take responsibility and self police.

      The DMCA disagrees.

      Is it reasonable to say just tell us what is your's when you removed the items without their permission.

      The DMCA requires exactly this procedure. Is following the law reasonable?

      They need to start an approval process like most other sites.

      No, they don't. The DMCA provides a safe harbor for them and the others.

      I'm talking kiddie porn and such.

      No one else is. Stay on topic. The recorded music vending industry got the law they wanted, now
  • Pfft (Score:4, Funny)

    by porkThreeWays (895269) on Monday March 26, 2007 @07:07AM (#18486419)
    We all know the real reason youtube is here is for candy mountain.
  • "A viacom representative earlier today has revealed that Viacom was the main driving force and innovator behind Internet. Representative also shed light on the misassumption that internet was an unlimited number of computers networked, saying that internet is in fact "a series of tubes".
  • Let's file a class action suit against Viacom! After all, they do depend on us, the consumer...
  • by Webcommando (755831) on Monday March 26, 2007 @07:15AM (#18486473) Homepage Journal
    Top favorites: "Chad Vader", "God Inc.", DoogTunes, "Ask a Ninja".

    Strangely, it appears YouTube will continue to be supported by me because of the non-infringing material. Actually, in my opinion, all the Viacom, et. al. material makes it difficult to find the real gems.

    • I agree 1000%. My favorite stuff on YouTube is the homemade videos. I like some of the funny satirical stuff, some of the parodies, some off the wall stuff like the "Mentos and Diet Coke" phenomenon (when it first began making the rounds), and eyewitness videos of news items, natural disasters, etc. in particular. Who cares about anything else? If I want to watch the Colbert Report that I'm going to miss, I've got a DVR. If I want to watch movies, I've got a Netflix membership and free movies on-demand
    • I don't watch Viacom's crap on MTV, CBS or Nickelodeon and I wouldn't care one bit if they disappeared from the Internet entirely.

      YouTube depends on Viacom?? more like "YouTube a threat to Viacom"

      ALL of the big media companies are scared of the Internet because it is breaking the monopoly they have on the flow of information and eroding their customer base of both viewers and advertisers. This has less to do with content than it does with undermining the emerging competitor at all costs.
  • Undue Burden? (Score:5, Interesting)

    by Luscious868 (679143) on Monday March 26, 2007 @07:16AM (#18486479)

    From the summary:

    He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.

    Oh please. You want an easy solution. Setup a website where users can create an account, provide contact information and then search the web and/or P2P networks to report instances of copyright violation. When a particular instance has been reported a certain number of times have a real person check the link to determine if a violation has occurred and then take appropriate action. Reward the volunteers who are reporting the violation with points for those instances where a verified violation has occurred and after a certain number of points are accrued reward users with a free DVD or CD from the catalog.

    The amount of money that the RIAA and MPAA would save if they implemented this kind of system would more than offset the free DVD's or CD's they would be giving away if their own figures on losses due to piracy are real.

    With the Internet, you've got a whole army of users who can be the watchdogs for you. All you've got to do is give them an incentive and have a verification system in place to weed out fake entries.

    • Re: (Score:3, Insightful)

      by Detritus (11846)
      The problem is that your volunteers have no way of knowing if something is a copyright violation. Gut feelings and hunches don't cut it.
      • The problem is that your volunteers have no way of knowing if something is a copyright violation. Gut feelings and hunches don't cut it.
        Which is why the work of the volunteers is only used to flag files that may need further review, not automatically issue takedown notices. If they only give out points for files that really are infringing, then the system will tend to self-correct since there will be no reward for reporting bogus infringements.
    • Very undue. (Score:4, Insightful)

      by remmelt (837671) on Monday March 26, 2007 @07:56AM (#18486737) Homepage
      Especially since the DMCA specifically provides the RIAA with this handy tool. The only thing they have to do to have any content pulled is claim their employers own the copyright. No need to prove it, no need to show any kind of evidence, no official papers needed. They send any ISP a letter saying: the content on page X is ours, the ISP pulls it, since they can't prove who owns the copyright at all, so they'll just take the easy way out. At the moment, they have more to fear from the RIAA than from their own users. (Isn't that nice? You pay these people and they serve another master. That's for another post, though.)
      Now they want to take this a step further and have the ISPs police their own network, without any interference from the RIAA. In short, they want to sit back and have you throw your money at them.

      The arrogance in claiming that Google wouldn't exist without Viacoms patents is beyond me.
    • From the summary:

              He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.
      Yet this is exactly what the DMCA (the law purchased by the MPAA) says must happen. Content providers are responsible for notifying web sites of infringement, and then proceeding from there.
    • Re: (Score:3, Insightful)

      by OECD (639690)

      Oh please. You want an easy solution. Setup a website where users can create an account, provide contact information and then search the web and/or P2P networks to report instances of copyright violation.

      The irony is, this would be easy to do if copyright was still "opt-in", as it was for the first two hundred years. As it stands now, there's no easy way to determine what is or isn't copyrighted. This was due to the content industry, which wanted to save themselves a few bucks on the "burden" of establish

    • He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them

      Oh please. You want an easy solution.

      They want more than an easy solution, they want to shift the burden from where it has been rightfully placed: with the content creator. It has always been required for a creator to be vigilant in protecting their copyright; it is a valid defense to show that the creator isn't protecting it. Now that the job has gotten difficult they want to somehow centralize it, write a search engine and magically remove only the infringing content and sue only the infringing parties. Sorry, but they need to write the sea

  • Does it mean being aware that infringement of some sort is happening, or being aware of a specific instance of infringement?

    Clearly, it means being aware of a specific instance of infringement. Otherwise the law could and should have been written to put the entire burden of copyright enforcement upon the service provider, since that that is the effect of the other interpretation. Any company providing a service on which copyright infringement was possible must surely be aware that it is almost certain to
  • ``Viacom Says "YouTube Depends On Us"`` -> well, we're not part of their game, so sending empty messages out there does us no good.

    From our point of view, there's only one way to prove YouTube is dependent on Viacom or not: Viacom, either do whatever you'll do, or shut the hell up.
  • by Anonymous Coward on Monday March 26, 2007 @07:38AM (#18486597)
    It's going to suck for viacom when youTube calls Stephen Colbert to the stand. He's highlighted original content from youTube, He had representatives of a small comnercial venture (the band OK go) on to talk about how they used youTube to publish an Ad (their music videos), and he has multiple times asked people to make fair use parody content going so far as to make green screen segments to make it easier.

  • Well, the least we can say is that they're not being half-assed in their accusations. They're tying everything up in a nice coherent package of victimization.
  • Keep on stopping those filthy thieves from stealing "your" property! [slashdot.org]
  • by C_Kode (102755)
    knowledgeable to infringement

    On the 30 second segment or an entire 30 minute show? Cause you're only infringing if the clip is of extended length.
  • There is actually an interesting question. As long as Google doesn't actively manage the content of YouTube, they can claim "safe harbor" provision of the Copyright Act because they are not acting as an editor. You Tube is like a public bulletin board. The minute they start scanning their content, they can be held accountable because YouTube becomes more like a "newspaper" than a bulletin board.

    If Google made it a policy to track all copyrighted material, they are expressing an editorial decision of what ca
    • Google is removing the content when it is brought to their attention, right? In the end, who's responsibility is it to see if copyright material is on Youtube? Is it Google or the person who owns it?

      I'm seriously asking.
      • by qazwart (261667)
        This is Google merely following the law. When stolen content is brought up to Google's attention, they are legally obliged to remove it. However, Google isn't first vetting the material to begin with.

        It would be different if Google held each post on YouTube and vetted it before posting it. Then Google would make itself responsible for any copyright violation or any other violation (such as privacy or libel violations) because it is actively examining each post.

        There is a court president that says that bulle
  • Who knew all those home videos of people ghostriding where produced by Viacom?

    http://www.youtube.com/watch?v=-Sa30lbrisw [youtube.com]
    http://www.youtube.com/watch?v=SlTvSUCCqPo [youtube.com]
    http://www.youtube.com/watch?v=x30mBix9v0s [youtube.com]

    Can they sue Viacom for SAG royalties?
  • How responsible is it for a lawyer for one of the litigants to write an opinion piece in a national journal prior to the litigation going forward? Can't opposition lawyers just file something claiming it's bound to be prejudicial to the whole process? Sure, vague comments about how "we're right and they're wrong" are to be expected, but laying out the meat of a case?
  • Over inflated law suit amounts... 1 billion dollars! how in earth are they gonna prove that youtube made them lose at least 5% of that ?
  • by Dachannien (617929) on Monday March 26, 2007 @08:25AM (#18487007)
    This lawyer is obviously trying to cram the square peg of the DMCA into his round hole. Does Google know that, in general, some people put content up on their site that they're not supposed to? Sure. Does Google get revenues from advertising? Sure. But Congress already contemplated both of those details when they passed the DMCA.

    Google may know that, in principle, some of the videos that people have posted are in violation of copyright law. But they don't know which ones, or who the copyright holder is, until they get a DMCA takedown request. This was an intentional feature of the DMCA, to protect service providers from the actions of their users. The sheer fact that this protection is necessary is a clue to any service provider that some of their users will, in principle, post content that violates copyright law.

    And yes, Google gets revenues from advertising. But the DMCA requires that the financial benefit that a service provider gains be a direct benefit from the infringement. Numerous free web hosts (Angelfire, Geocities, etc.) have been foisting ads on the people who view their users' web pages for years, and some of the content on those web pages infringes on copyright. This puts those web hosts in exactly the same position as Google, yet those web hosts have never been sued, because the financial benefit those advertisements provide is indirect to the infringing content posted by their users.

    The only thing left that the DMCA requires is that a service provider take down infringing content upon receiving a takedown notice, and Google complies with those notices in a timely fashion. Whether Viacom likes it or not, Google qualifies for the safe harbor provision, and this lawyer guy is full of... hot air.

  • by gsn (989808) on Monday March 26, 2007 @08:39AM (#18487175)
    click on vieos.
    click on All Time under Time.
    click on Top Rated on Most Viewed.
    Lets all look for Viacom clips shall we.
    Hmm, there are a few that *might* be infringing - I'm going on Video names here alone.
    Hardly depends on viacom here.

    The overwhelming majority of stuff looks like the standard youtube crap.
    AHHHH!! I understand Viacom's problem - they cant distinguish their crap from the rest of the crap.
  • by N8F8 (4562) on Monday March 26, 2007 @08:46AM (#18487249)
    Let's all drive Viacom out of business and see if YouTube is still around. Works for me.
  • by SwashbucklingCowboy (727629) on Monday March 26, 2007 @08:50AM (#18487293)

    He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.
    His fight isn't with YouTube - it's with Congress. If it's an "undue burden" then Viacom should approach Congress to change the law to alleviate that burden.
  • He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.

    Sorry, but while IANAL in so far as I am aware, Copyright Law requires that the content owners/providers/etc have the burden of spotting and proving infringement. That onus is on them exactly for the same reason that it is the trademark owners and patent owners burden to do the same in order to maintain it. That's how the law works, like it or not. If that is too big a burden for you

  • WTF did he say? (Score:2, Insightful)

    "thank Big Brother for raising the chocolate ration to twenty grammes a week."
    --George Orwell, 1984

    Only in America could a Corporation have the audacity to suggest...no, not suggest, *say* that technology has been spurred by patent and copyright laws. Perhaps it was, originally, until they got a hold of the fact that it could be used, along with corporate-leaning litigation laws, to stifle competition.

    Following this, I'm assuming that Viacom is going to announce that a lack of national health care h

  • I use YouTube and other such video sites for computer seminars, lectures, symposium videos. Google videos is better for that since they don't have the 10 min time limit and don't have to hunt down part x of 8 and such. If you're defending your dissertation or giving a talk on something cool, please record it and post it on Google videos or youtube.

    Also, for live performance of artists (not big name label artists but indies and such) but small artists and just musicians playing their instruments.

    I think

  • IANAL blah blah...

    If you go to Comedy Central (one of Viacom's properties) every Colbert clip etc. has a link where they state "Copy and past this link .... and let people have their way with it"

    Someone needs to show this to the judge...
    • If Viacom provides a link then they're giving an implicit license to use THAT content. They own it therefore they get to decide what gets used, when, etc.

      Notice that they allow you to embed flash videos - that may contain ads and very well could contain counters to determine what's popular and what's not. In short, they could have very good reasons for giving away all the content and still not letting others use it.

  • The DMCA doesn't have exceptions to the Safe Harbor provision. As written, the provision always applies. Also, just as with regular copyright, whether or not the accused benefits from the infringment is immaterial to the infringement claim. It is only material when damages are determined.

    More important, however, is that is absolutely the case that the copyright holder, not any other party, is responsible for identifying potentially infringing content. Why? Because the simple fact that the content is copied/
  • "Michael Fricklas, a lawyer for Viacom, has an opinion piece in the Washington Post laying out Viacom's side in their $1 billion lawsuit against YouTube. Fricklas asserts that the DMCA's 'safe harbor' provisions don't apply because YouTube is knowledgeable to infringement and furthermore derives financial benefit from it.

    Will this dispute between Viacom and YouTube be tried before a jury? If so, how can this be legal? Surely this article could be construed as potentially prejudicing any jury against YouTube

  • by rfc1394 (155777) <Paul@paul-robinson.us> on Monday March 26, 2007 @12:19PM (#18489825) Homepage Journal

    I sent the following comment in to the Washington, Post:

    Mr. Fricklas' comnents are, for lack of a better term, a whiner who doesn't like the law as written and wants to sue to get something from the courts that the legislature has clearly denied him. His point that You Tube has knowledge of copyrighted content is not relevant. As his own statement has made, Congress gave sites immunity under the Digital Millenium Copyright Act for sites that quickly take down infringing material. He has not said that Youtube is not removing material when requested; indeed, my understanding is Youtube removes tens or hundreds of thousands of reported clips all of the time. Here, also, he is in effect saying that because Youtube has the capacity to remove material either because it is unlawful or in some way undesirable, Youtube is infringing because of the very controls it is required by law to have to remove infringing material! If Youtube didn't have controls to remove the material, I'm sure that then he'd be claiming that it was not properly designed to comply with the law!

    He also writes, "Is it fair to burden YouTube with finding content on its site that infringes others' copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution."

    The only problem with his argument is that that has been the exact requirement for the past 200 or so years that copyright has existed; the copyright owner is required - and has always been required - to police his copyrights - and no amount of whining about how a requirement - in existence for hundreds of years - to be changed because he doesn't like it is valid. I'd like to remind this lawyer of a comment by the U.S Supreme court regarding how one obtains one's rights over something:

    "The privilege... is neither accorded to the passive resistant, not to the person who is ignorant of his rights, nor to one who is indifferent thereto... It is valid only when insisted upon..." McAlister v. Henkle, 201 U.S. 90.

    My guess is that this whole lawsuit is nothing more than a bargaining chip so that Viacom can make more money off their content. Since, like so many other whiney losers, he can't figure a way to negotiate in the marketplace, he goes running to the courts to try and get what he can't win at the bargaining table.

    Paul Robinson
    General Manager
    Viridian Development Corporation
    Arlington, Virginia
    • by StikyPad (445176)
      Mr. Fricklas' comnents are [...] a whiner who doesn't like the law as written

      His comments are a whiner? Nice.. a character assassination with poor grammar. That's credible, and completely unlike anything before seen on the internet.

      As his own statement has made

      Congress gave sites immunity...for sites

      because Youtube has the capacity to remove material either because it is unlawful or in some way undesirable, Youtube is infringing because of the very controls it is required by law to have to remove infringi
    • by StikyPad (445176)
      Also, I suspect that you spelled your own company's name wrong. [superpages.com]
  • by rfc1394 (155777) <Paul@paul-robinson.us> on Monday March 26, 2007 @12:24PM (#18489937) Homepage Journal

    After I wrote a prior piece here, I realized a great (bad pun) quote that sums up Viacom's lawsuit.

    Viacom's lawyer, in effect is saying, "All YouTube are belong to us!" [wikipedia.org]

  • He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them

    That was the intent of the founders of copyright law. In exchange for copyright protection, copyright holders must use their own resources to find infringers. It is the same for patent and trademark holders. They cannot use taxpayer funded resources to find infringers, that would violate the spirit of the law.

    Undue burden? DEAL WITH IT, IT'S THE LAW.

  • I don't know how this guy reaches the conclusion that Google wouldn't exist without the "benefit" of patent law.
  • He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.

    That's like saying we should do away with the cops and make the criminals legally required to turn themselves in, to reduce the "undue burdon" on the legal system. Is there anyone in the world that is actually saying "gee why didn't they think of that earlier?"

    How do you respond to such a ... god there really isn't a good word for it... what do you call it when someone has the balls
  • He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them.

    Hey, you're the ones who bought the DMCA. If you feel you're not getting your money's worth, then go make some more well placed contributions and I'm sure you can put the onus on the webhost rather than you.

    Don't whine when your law doesn't work anymore because of changing technology.

    As an aside, the fact that your content is so easily reproducible might be a sign that our copyright l

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