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

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

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

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

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

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.

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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 ta

Missleading and easily rigged.

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

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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]

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Oh, they already are in youtubes shoes :D
http://slashdot.org/article.pl?sid=07/03/20/158224 &tid=95 [slashdot.org]

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You mean like ifilm?

Al gore still...

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

Anonymous Cow.

Re:Al gore still...

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....

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.

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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 se

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Actually youtube doesn't have advertisements on the actual video pages just the rest. This is probably purposeful.

Re:they know....

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.

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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

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People tend to mark the decency stuff alot faster than copyright stuff.

Re:they know....

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 ...

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:

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.

Re:If Viacom would ...

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

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.

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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

Pfft

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

In other news : Viacom invented internet

"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

We could use this...

Let's file a class action suit against Viacom! After all, they do depend on us, the consumer...

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

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.

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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

Re:I don't watch any "big producer" content on TV

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 be

Undue Burden?

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.

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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.

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.

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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 copyrigh

Depends on what "aware" means.

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 t

Viacom Says "YouTube Depends On Us"

``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 yo

Stephen Colbert: Star Defense witness.

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.

following through

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.

Good on you, Viacom!

Keep on stopping those filthy thieves from stealing "your" property! [slashdot.org]

Umm..

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.

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Nonsense. The best 30 seconds of the show (or movie, or whatever) is the LEAST valuable part. It's the part they give away, constantly showing over and over again in clips and trailers, trying to sucker you into watching the rest.

And while posting the la

Can Google "Manage" Content?

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

Wow! Who knew?

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?

Stretching the DMCA to suit his whims

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

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

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

Take It to Congress

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.

Just another losing whiner

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

What this suit really means

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]

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True, to an extent. Without copyright, we would have computers, and the hardware makers would have created operating systems and software inorder to sell hardware.

Not so sure computers would have progressed so rapidly without hardware patents though.