Viacom Says "YouTube Depends On Us"

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.'"

There's the real danger of Grokster

[Mateo_LeFou (859634)]

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.

Re:There's the real danger of Grokster

[MindStalker (22827)]

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.

Re:There's the real danger of Grokster

[StormReaver (59959)]

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.

Still valuable without Viacom content

[Random BedHead Ed (602081)]

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.

Re:Still valuable without Viacom content

[Greyfox (87712)]

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:

[Phil246 (803464)]

they are
Viacom bought ifilm, and other studios are working on their own version
http://www.theregister.co.uk/2007/03/22/nbc_newsco rps_newtube/ [theregister.co.uk]

Al gore still...

[by Anonymous Coward]

Al Gore still has the one up on creating the internet. We should all just sue him.

Anonymous Cow.

Re:Al gore still...

[jedidiah (1196)]

Forwarded email from Vint Cerf ([e-mail]), September 28, 2000:

Al Gore and the Internet
By Robert Kahn and Vinton Cerf

Al Gore was the first political leader to recognize the importance of the Internet and to promote and support its development.

No one person or even small group of persons exclusively invented the Internet. It is the result of many years of ongoing collaboration among people in government and the university community. But as the two people who designed the basic architecture and the core protocols that make the Internet work, we would like to acknowledge VP Gores contributions as a Congressman, Senator and as Vice President. No other elected official, to our knowledge, has made a greater contribution over a longer period of time.

they know....

[gravesb (967413)]

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.

Re:they know....

[thebdj (768618)]

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.

Re:they know....

[mysidia (191772)]

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).

If Viacom would ...

[Organic Brain Damage (863655)]

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.

Re:If Viacom would ...

[elrous0 (869638)]

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.

Simple solution

[edwardpickman (965122)]

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:

[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.

Pfft

[porkThreeWays (895269)]

We all know the real reason youtube is here is for candy mountain.

I don't watch any "big producer" content on YT

[Webcommando (755831)]

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.

Undue Burden?

[Luscious868 (679143)]

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:

[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.

Very undue.

[remmelt (837671)]

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.

Stephen Colbert: Star Defense witness.

[by Anonymous Coward]

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.

Stretching the DMCA to suit his whims

[Dachannien (617929)]

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.

we can test this... go to youtube

[gsn (989808)]

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.

I propose an experiment

[N8F8 (4562)]

Let's all drive Viacom out of business and see if YouTube is still around. Works for me.

What this suit really means

[rfc1394 (155777)]

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]