Viacom Says "YouTube Depends On Us" 163
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.'"
Still valuable without Viacom content (Score:5, Insightful)
they know.... (Score:5, Insightful)
If Viacom would ... (Score:5, Insightful)
Simple solution (Score:3, Insightful)
We could use this... (Score:2, Insightful)
Re:There's the real danger of Grokster (Score:4, Insightful)
Re:they know.... (Score:5, Insightful)
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.
Re:Copyright and patents baloney (Score:2, Insightful)
Not so sure computers would have progressed so rapidly without hardware patents though. Perhaps they would, but there has been a lot of microchip development from smaller players who would have been elininated by the big companies if they hadn't had any patents.
Re:Undue Burden? (Score:3, Insightful)
Re:they know.... (Score:4, Insightful)
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).
Very undue. (Score:4, Insightful)
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.
Re:If Viacom would ... (Score:5, Insightful)
Re:they know.... (Score:2, Insightful)
Re:Still valuable without Viacom content (Score:5, Insightful)
Stretching the DMCA to suit his whims (Score:3, Insightful)
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.
Re:Still valuable without Viacom content (Score:3, Insightful)
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.
Take It to Congress (Score:3, Insightful)
Re:Undue Burden? (Score:3, Insightful)
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 establishing copyright. Now they find that determining copyright is a burden they want to push off onto everyone else. If **AA's IP was as valuable as they say, and if they were losing as much money to piracy as they claim, it would make business sense to police it themselves. Heck, they'd be at a competitive advantage because they have resources to do this that the smaller guys don't. The fact that they find this burdensome is telling.
Re:they know.... (Score:2, Insightful)
There are several people replying to my comment with words to the effect of "That can't possibly be true because if it was the effects would be devastating." Sorry - that is not how the law works. It looks, from the badly worded clause, that YouTube are liable.
Here is the clause
To fall within this safe harbor YouTube would have to claim that they fall within clause A(ii) - if they are genuinely not aware of facts or circumstances from which infringing activity is apparent, then they are the only ones on the planet. Perhaps firing up their own search engine and looking for "The Daily Show" may be a clue.
The (B) clause is a bit more subtle that has been made out - in the case of the free ISP they are likely to lack the ability to control such activity. The fact that you can still find violating videos on YouTube by using search terms like "The Daily Show" is a bit of a red flag that the controls (such as vetting any contentious terms before publication) which could be used are not being used.
WTF did he say? (Score:2, Insightful)
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 has made the country healthier by forcing Americans to take better care of themselves.
Missleading and easily rigged. (Score:3, Insightful)
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 tastes. The number one clip may make up less than a fraction of a percent of viewership. I can't tell you for sure because the top ten can easily be rigged.
The smaller the number of blockbusters are relative to total viewership, the easier they are to rig. A company like Mediasentry could be hired to botnet demand Viacom clips and strengthen the Viacom lawsuit. Surely an honest entertainment company would never do anything like that, would they?
Re:I don't watch any "big producer" content on TV (Score:3, Insightful)
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.
Re:Simple solution (Score:2, Insightful)
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.