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Dueling Summary Judgment Motions In Viacom v. YouTube 89

Posted by timothy
from the well-we-did-do-the-nose-and-the-hat dept.
I Don't Believe in Imaginary Property writes "Eric Goldman, an Associate Professor of Law at Santa Clara University School of Law, has an excellent analysis of the dueling summary judgment motions in Viacom v. YouTube. Basically, both sides have been trotting out the most damning things they can find and asking the judge to rule against the other party. Viacom is mad that Chad Hurley, one of YouTube's co-founders, lost his email archive and couldn't remember some old emails. Worse, YouTube founder Karim once uploaded infringing content. But then Google points out that only a very small percentage of the users are engaged in infringing activity (some 0.016% of all YouTube accounts have been deleted for infringement), one of the clips Viacom is suing over is only one second long (what about fair use?), and most of YouTube's content is non-infringing, including the campaign videos which all major US presidential candidates posted to YouTube." (More below.)
"But the worst thing they found is that Viacom can't make up their mind. They spent $1M advertising on YouTube and tried to buy it. And even though they demanded that YouTube remove videos containing Viacom property on sight, Viacom had a complex internal policy authorizing some clips, including ones disguised as 'leaks' and put out by their marketers. Viacom was so conflicted internally that their very expensive lawyers couldn't figure out what Viacom had authorized to be uploaded even after doing extensive research as required by court rules, only to discover that some of the clips Viacom was suing over were ones Viacom uploaded themselves. The lawyers then had to go to court and drop those clips from their case — twice. They missed some the first time."
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Dueling Summary Judgment Motions In Viacom v. YouTube

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  • This is so damn ridiculous.
    • Re: (Score:3, Informative)

      by thephydes (727739)
      Godzilla is just like the rest of us - he doesn't know wtf is going on but suspects viacom is a pack of arseholes and google is in fact doing evil.
      • Re: (Score:3, Insightful)

        by mcgrew (92797) *

        But don't forget, Google's motto is "don't be evil", not "don't do evil." If doing evil is the same as being evil, then we're all evil. It's just that some people are more evil than others, and some corporations are more evil than others, too. "Try not to do evil" isn't a very good slogan, and compared to most corporations, Google doesn't do much evil at all.

        Plus, I fail to see how they're doing evil here.

    • Well godzilla (Godzilla, King of the Monsters) was on youtube, until viacom sent a DMCA notice to take it down.
  • by miffo.swe (547642) <daniel.hedblomNO@SPAMgmail.com> on Monday March 22, 2010 @05:55AM (#31564880) Homepage Journal

    This is about being the gatekeeper to media content. It has nothing at all to do with piracy per see. Youtube is the place to be if you want content to spread, like traliers, new bands etc.

    If Youtube becomes the place to be for content Viacom and the rest of the leeches gets taken out of the equation as distributors. Its the same fight the RIAA is making. Its not about piracy, its about deciding what you watch, listens to and buys.

    • Re: (Score:2, Insightful)

      by sopssa (1498795)

      Its the same fight the RIAA is making. Its not about piracy, its about deciding what you watch, listens to and buys.

      When has RIAA decided for you what you should watch? Sure, if you like bands under the labels that work with RIAA, those labels might go towards more popular music. It doesn't mean they're deciding what you can listen - you're free to go to any local pub, event or even look for indie music on the internet. There are a lot websites for non-signed artists to release their music and RIAA has no saying over that since the artists haven't given them permission to do so. You do know that RIAA doesn't just blindly

      • by thijsh (910751) on Monday March 22, 2010 @06:22AM (#31564968) Journal

        You do know that RIAA doesn't just blindly attack sharing of any music, but only music by artists who have (or their labels have) authorized them to do so.

        This is not true, the fines imposed on blank media for example are all going to big labels. I think the chance of my blank CD-R being used to burn some legally bought indie music is much larger than ever being used to illegally copy the latest Lady Gaga CD, but nevertheless the money goes to this mafia. I would call this 'fined for being guilty of infringement whatever the circumstance' a blind attack on one method of sharing music, and it also negates the second part of your claim since indie artists have never authorized the big labels to collect (and keep) this fine for them.

        • Re: (Score:3, Interesting)

          by Coren22 (1625475)

          Simple solution, don't buy music CDRs? Does your country impose a tax on all blank media? The US doesn't, they have "special" music CDR media, which is no different then regular CDR media, it just costs more.

          • by tepples (727027)

            The US doesn't, they have "special" music CDR media, which is no different then regular CDR media

            Music CD-R carries a specific flag in the pregroove that a desktop PC's internal CD-RW drive ignores. But CD recorders that aren't part of a "computer system" require it. Besides, the safe harbor for non-commercial copying of sound recordings under 17 USC 1008 isn't guaranteed to hold unless you use a suitably taxed "digital audio recording medium".

          • by thijsh (910751)
            Yeah, sadly here in Europe we pay the tax no matter what, even if you just use the CDs to burn linux install discs. The tax on a music CD is about three times the tax on a data CD. Music CDs are only used rarely, even the old CD players in cars handle the normal CD-R perfectly well so there is really no point...
      • Re: (Score:3, Insightful)

        by miffo.swe (547642)

        If you for one second think what you hear on the radio is decided by the radio station itself you sir are very gullable. Its very hard getting aired unless you have a big contract not matter how good your music is. On the rare occasions it happens RIAA is defacating themselves because you cant write slave contracts with an already successful artist.

      • by eldavojohn (898314) * <eldavojohn&gmail,com> on Monday March 22, 2010 @07:03AM (#31565118) Journal

        When has RIAA decided for you what you should watch? Sure, if you like bands under the labels that work with RIAA, those labels might go towards more popular music.

        Both you and I know that the bands "working with RIAA" are promoted and slammed down our throats. In addition the radio stations that you can listen to are (with the very rare exception of a few I know in Minnesota) pretty much forced to play RIAA only songs. I live in DC and aside from bands like The Bravery that are already on a large label, I have never heard an unsigned local band showcased or even played on the radio. If you were to build a case for the RIAA deciding what you hear, there it is. They are the deciders on who gets played on TV and the Radio. And miffo.swe was pointing out that this fact is why the internet is a thorn in their side.

        It doesn't mean they're deciding what you can listen - you're free to go to any local pub, event or even look for indie music on the internet.

        You can't use that last point about the internet because that's what is being debated here. That's what we're talking about annoys the hell out of the RIAA. It annoys them because I'll never hear acts like Joanna Newsom [youtube.com] at "any local pub or event." I depend on the internet for it because no radio station in my area has the balls to play it even at 2am.

        There are a lot websites for non-signed artists to release their music and RIAA has no saying over that since the artists haven't given them permission to do so. You do know that RIAA doesn't just blindly attack sharing of any music, but only music by artists who have (or their labels have) authorized them to do so.

        This particular discussion isn't about file sharing, it's about promotion and distribution channels and consumer awareness. The accusations are that the RIAA enjoy limiting consumer awareness. They don't want to lose 20% of their purchases to acts like Joanna Newsom or hundreds of other bands that you might actually like but you'll never know because there's this great system set up to protect you from <evil voice>Something Different!</evil voice> Do you have any idea how difficult it was for me to hear about Matthew Hemerlein [indiefeed.com] despite the fact that I live in DC? Thank god for the internet and the new distribution channels it provides. I agree with miffo.swe that the RIAA is a bit annoyed that I'm going to be sending money directly to labels like Drag City and Afternoon Records instead of the "Big Four."

        • Re: (Score:1, Redundant)

          You may be listening to the wrong stations, then... Admittedly, the Clearchannel stations are told by the RIAA what they're going to be playing, but there *are* indie/alternative stations in most major cities that will play indie music and promote local artists.

          Here's the one I listen to the most: http://live885.com/ [live885.com]

          • You may be listening to the wrong stations, then... Admittedly, the Clearchannel stations are told by the RIAA what they're going to be playing, but there *are* indie/alternative stations in most major cities that will play indie music and promote local artists.

            Here's the one I listen to the most: http://live885.com/ [live885.com]

            Don't get me wrong, there are some good bands here ... and especially the international ones are good. I have CDs of Arcade Fire and We Were Promised Jetpacks but let's not kid ourselves, Pearl Jam has some albums on UMG. Red Hot Chili Peppers is on EMI. From a quick glance at the playlist, a lot of these bands aren't directly on big labels but they're on labels like Island Records [wikipedia.org] which is now owned by UMG. Even the renowned subpop walks a fine line with Warner's half ownership [wikipedia.org].

            If you want a good

            • The thing being, in order to be successful commercially, a station has to play what people want to hear. That means that while they can, and do, support local acts (there's a number of local bands that got started on Live, some of which are actually making waves internationally now), they still have to play what's popular, too. They're about the only station in town who'll play Green Day or Offspring, though, both of whom are independant.

              Take a look at some of the contests they run... the thing about Live i

            • you don't get umd's radio station? ilad, imperial china, us royalty etc. have all had air time there. i suspect you don't follow the indie scene in dc
          • by zappepcs (820751) on Monday March 22, 2010 @08:02AM (#31565390) Journal

            Can I interject here? the phrase ' ... but there "are" indie/alternative stations in...' is one of the most offensive ideas that I've actually listened to in a while. It at once sounds like you are both excusing the desperately bad situation by offering alternatives and trying to ignore the wrongfulness that is the current music industry.

            It might be better said as 'even though the RIAA and music industry in general are evil bastards who want to control every aspect of the artists' content without properly compensating the artists, some people have rebelled and work through indie/alternative radio stations. The best way to tell the RIAA how you feel is to go see local artists in concert, pay for any self pressed CD's they have.

            • The best way to tell the RIAA how you feel is to go see local artists in concert

              Unless you happen to be a high-school-age or college-age fan of a band that happens not to play at all-ages venues.

        • by Coren22 (1625475)

          Try 98 rock instead of DC 101... 98 rock hosts a indy artist event and plays indy music on certain nights of the week. You might be able to find a college radio station that plays indy music as well, and I would love to hear about it if you do.

        • by goopie (547816)

          You can't use that last point about the internet because that's what is being debated here. That's what we're talking about annoys the hell out of the RIAA. It annoys them because I'll never hear acts like Joanna Newsom [youtube.com] at "any local pub or event." I depend on the internet for it because no radio station in my area has the balls to play it even at 2am.

          This has got to be the first time I've been introduced to new music via /.

          Thanks.

    • Re: (Score:2, Insightful)

      It's also about controlling the entire chain of production, from studio to screen. That's why Viacom tried to buy Youtube, and why they have this convoluted scheme of suing infringing uploads while uploading illicitly themselves, apparently designed solely to undermine Youtube legally. You control the entire chain, you get to dictate the terms to every link. It's that simple.

      Youtube is the final link between the studio and the viewer, and Viacom wanted to be the first to control it. But Google made a better

  • by Opportunist (166417) on Monday March 22, 2010 @05:59AM (#31564892)

    Viacom learned that this "viral marketing" thing is kinda good PR, and cheap too! 'cause people don't like marketing and ads when they see them, especially when it comes to music and anything targeted at teenagers, who by default despise everything their parents (or any person over 30) think is a good idea. So they thought it would be spiffy to put up some of those videos in some sort of "clandestine" operation, probably with some astroturfing going along, and hey, I'm pretty sure it even worked!

    "But those damn kids should buy our crap, not listen to it for free!", decried some other department, probably the beancounters this time, who, by their very nature, don't really talk that much with the loonies from PR. So put up takedown notices.

    Watch a company battle itself. It's actually pretty entertaining.

    • by Dunbal (464142) * on Monday March 22, 2010 @07:36AM (#31565260)

      Watch a company battle itself. It's actually pretty entertaining.

          No. Not when I'm paying for it because they're doing it through the court system - a system that tells me I have to wait 2 years for my case because of the backlog of cases. A system whose original intention was to prevent the little guy from being screwed by the strong but has turned out to be too expensive for the average citizen. It's not funny at all.

      • by shentino (1139071)

        And why we need to go to loser pays by default.

        Making people eat the costs of a bum lawsuit, or a bum defense will make people think twice before clogging up the courts.

        • by iSzabo (1392353)

          I disagree; There's a very different culture in the United States compared even to Canada with respect to how people view lawsuits. In Canada you don't threaten lawsuits lightly because you know it's going to be costly, however I've been threatened with lawsuits from shady apartments here. I really think that having the ability for a lawyer to agree to work for a portion of the settlement leads only to frivolous lawsuits. With that said, dragging out an individual's livelihood in years of cases until they c

  • by MancunianMaskMan (701642) on Monday March 22, 2010 @06:03AM (#31564914)
    hey, your kitten walking on the piano keyboard was playing a song owned by SonyWarnerEMI. We'll sue the whiskers off him!
    • by Anonymous Coward on Monday March 22, 2010 @06:41AM (#31565028)

      Your trolling, no way would they sue a kitten. That would be like sueing a grandmother, or a disabled person... oh wait.

    • Re: (Score:1, Insightful)

      by Anonymous Coward

      Youtube/Google has brought in hundreds of millions of dollars for itself in advertising revenue due largely to the draw of infringing content. Sure, they take it down eventually once somebody goes through the DCMA hoops, but just as quickly the process starts again as another uploader sends the same content. The actual creators / rightsholders are uncompensated while google makes off like a bandit for this sleight of hand. Your kitten analogy, however 'funny' just serves to muddle further this issue. Ye

      • Re: (Score:3, Insightful)

        by FictionPimp (712802)

        And yet I've had my own clips taken down because the radio was on in the background and some content provider complained to youtube.

        So I can post a unmodified 1 minute video on youtube simply because the radio was on and some filter decided that was too much infringement.

        • by Inda (580031)
          And yet I've posted clips from a commercial radio station, received over 1,000 'views' and they are still there, untouched. I even stated "These are from Talksport". Still there.
      • Re: (Score:3, Informative)

        Youtube/Google has brought in hundreds of millions of dollars for itself in advertising revenue due largely to the draw of infringing content. Sure, they take it down eventually once somebody goes through the DCMA hoops, but just as quickly the process starts again as another uploader sends the same content.

        DMCA was put in place for a reason. And, as far as I recall, it was vigorously supported, and the need for it defended, by those very same companies that now whine about how Google "makes money off stolen content" while abiding to DMCA to the letter.

        No sympathy whatsoever from here, sorry (and I am generally pro-copyright, unlike many on Slashdot). What they are essentially asking for is to place burden of determining legitimacy of posted copyrighted material on service providers, which is unfeasible and un

    • by lavardo (683333)
      And chop off the cat's claws.
  • by kramerd (1227006) on Monday March 22, 2010 @06:16AM (#31564954)

    After reading the summary (seriously, do this first or this won't work at all), gauge your reaction to the article that you won't be reading to determine how long and for what purposes you read /.

    If you are surprised by any of the summary, you must be new here.

    If you aren't angered by the summary, you have been here too long.

    If you mentally insert else statements between each of these lines, you are sleep deprived DBA. Go take a nap.

    If you question Eric Goldman's credentials, but haven't done any research to to discredit him, you are a /. troll.

    If you just went to research Eric Goldman's credentials so that you could respond with research to discredit him, you are a /. pedent.

    If you just tried to correct the misspelling of pedant in the previous line, you are a grammar nazi.

    If you instead thought that discrediting Eric Goldman wouldn't take much effort but that doing so isn't pedantic, you have a valid point, and thus, would be modded down for pointing it out.

    If you just thought to yourself 'who is Eric Goldman?,' try reading the summary next time.

    If you can remember another /. article that pointed out that a company ended up suing themselves (and losing), so do I.

    If you read the heading of this post and thought ' this is stupid, you can gauge someone's /. age by the number of digits in the UID, its probably a valid point, but makes this entire post worthless, so keep that to yourself.

    • Re: (Score:3, Insightful)

      by Jedi Alec (258881)

      If you aren't angered by the summary, you have been here too long.

      Either that, or you've simply worked in a larger company for a while and realized that schizophrenia is pretty much the ground state of being.

    • Any "law professor" who says "attorney generals" instead of "attorneys general" might want to consider going taking a course in Law 101 rather than teaching it.
      • That would be a grammar course, not law. While we're on the topic; what would be the possessive form of attorney general? Would you write "the attorney general's office" or "the attorney's general office"? And if the plural form doesn't match the possessive form, I'd sure like to hear your explanation for it.
    • Re: (Score:1, Funny)

      by Anonymous Coward

      "If you just tried to correct the misspelling of pedant in the previous line, you are a grammar nazi."

      That wouldn't be grammar... that would be a simple typo. Not knowing the difference between they're | their | there would be grammar related.

      -Reality Checker

    • If you read the heading of this post and thought ' this is stupid, you can gauge someone's /. age by the number of digits in the UID, its probably a valid point, but makes this entire post worthless, so keep that to yourself.

      Damn kid. Get off my lawn.

      Everything else posted is pretty much 100% correct...

  • If you intend to use the copyright system as a means to cheat when you don't get your way, I feel you should be removed from the system and its protection. Viacom's copyrights should pass into the realm of public domain for their behavior in this case.
    • by MacWiz (665750)

      ...some of the clips Viacom was suing over were ones Viacom uploaded themselves...

      This merely confirms my suspicions.

      Viacom's copyrights should pass into the realm of public domain for their behavior in this case.

      Sadly, that's not how they do things. They'll pay out a few million to settle out of court, and do it without admitting guilt. Like it never happened.

  • They (Viacom) look like a bunch of hypocrites, they want their cake and eat it as well. I am not saying Youtube is innocent. But I hope viacom get slapped, and get slapped hard.
    • by Tetsujin (103070)

      They (Viacom) look like a bunch of hypocrites, they want their cake and eat it as well.

      Well I know if I had a cake I'd certainly want to eat it...

  • Anytime you need litigation or potty-mouth chair-throwing, Microsoft will be there for you.

    http://www.wired.com/techbiz/it/magazine/17-02/ff_killgoogle [wired.com]
    http://news.zdnet.com/2100-3513_22-139743.html [zdnet.com]
    http://www.theregister.co.uk/2005/09/05/chair_chucking/ [theregister.co.uk]

  • Tell both Viacom and Google they have to supply equipment and training for the production of 500 original videos per day, to be copyrighted by the authors themselves exclusively. Modify copyright law so that most things produced become property of the people who actually work on it, not of the company who hired them, and in the future companies become forced to negotiate terms with actors, directors, and writers, constantly renegotiating terms of use with them and producing new things, rather than already o
    • by shentino (1139071)

      In which case the firms employing them can start charging the artists fees for the usage of their studios.

      I agree with "work for hire" on principle since you are still getting a paycheck and are using the company's resources.

      However, I think the answer here is education.

      Make sure people know about work for hire.

      • by 91degrees (207121)
        Thing is, in most cases, you'd need to be pretty naive not to know about it. I'm quite happy that just about any creative work I've ever worked on (at least the for-profit ones) has belonged to the company I worked for. That was pretty clear implicitly from the start.
  • What kind of law professor doesn't know that it's Attorneys General?

    Those who can, do. Those who can't, get tenure.

  • always amusing (Score:5, Insightful)

    by TheCarp (96830) <sjc@noSPAM.carpanet.net> on Monday March 22, 2010 @09:44AM (#31566926) Homepage

    I always find these legal battles so amusing. Not to bad mouth youtube/google but, the percentage of accounts that have uploaded "infringing content" is such a laughable statistic. I wonder what percentage of accounts have uploaded anything? More than 1 vidoe? More than 2?

    My guess is, most accounts would fall into one of a couple of catagories:
    1. People who made an account to post a comment, and never used it again
    2. People who made an account to upload some stupid video from their phone, and never used it again after one or two such videos.
    3. People who wanted to see a video that was only accessible to people who made an account because it had some "mature content"
    4. People who would fall into catagory 1-3, but found they liked commenting or having personal playlists
    5. Old accounts tied to old email addresses of people who currently are in 1-4.\

    If those categories don't account for 70% or more of all accounts, I would be shocked.

    -Steve

  • I seem to remember that some candidates used copyrighted music as the soundtrack for their campaign videos without permission of the rights holder. Holding them up as a shining example of all that is good and right about non-infringing use of You-Tube clearly does not match with recent history.
  • "Worse, YouTube founder Karim once uploaded infringing content."

    Hey, we get it - there were some emails from the early days of YouTube that make clear that they (pre-Google) were aware of copyrighted videos on the site, and decided on a case-by-case basis what to do about them (delete immediately, delete in a couple weeks when a viral traffic spike dies down, wait until someone formally complains). But was it ever ruled that any of these videos were actually infringing (and not e.g. fake-leaked videos by an

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