Google to Viacom - The Law is Clear, and On Our Side

An anonymous reader writes "Google responded to the opinion piece in the Washington Post by a Viacom Lawyer with a letter to the editor titled 'An End Run on Copyright Law.' Their strong wording sends a very concrete message: 'Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all. Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.'"

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omfgpwnt

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Seriously, that is ownage like I've never seen between large corporations before.

It looks like Google did in fact know exactly what they were doing when they bought YouTube. Right now Viacom looks pretty much like they just stepped on head of a rake and got whacked in the face.

If there's one thing you can say for Google, they know how to stand up for sane copyright law.

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If there's one thing you can say for Google, they know how to stand up for sane copyright law.

That's because Google's entire business model is based around using other people's copyrighted material.

It's a symbiotic relationship where Google can use pieces of peoples content to advertise over while simultaneously causing that full content to be consumed, making the creators money.

What a strange new world...

Re:DMCA safe harbor does not apply to Google

The DMCA FAQ is not quite precise enough here.

The actual words used in DMCA 512(c)(1)(B) are

"does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and"

Google does not lose the safe harbor by making money off of YouTube; if they did, the DMCA safe harbor would be vitiated. The benefit has to be _directly_ attributable to the infringing activity; an indirect benefit like "more people come to the site, and thus see the ads, thus raising revenue" does not qualify.

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Not so incredible. Typically, every word in a law is assumed to have meaning. In this case, there's a rich history of "vicarious infringement" case law which Viacom could try to bring to bear to show that Google did in fact financially benefit from the p

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You want to *abolish* copyright law? See, now I think that that is somewhat less than sane. Picture this scenario: J. K. Rowling's Harry Potter is picked up by a small publisher and they sell a few hundred thousand copies. This gets the attention of a giant publishing house, which quickly rushes out millions of copies of the book and refuses to pay Rowling anything.

So now what? Does she write book 2 knowing that if she publishes it she'll only sell a few hundred thousand copies before stores are swamped with the (now legal) copies from the major publisher? Or does she just quit writing.

If there's no copyright, than it makes a lot more sense for media publishing companies to quit paying artists, and specialize in leeching off of small publishers. Which in turn means the small publishers will increasingly make no money for actually paying the media creators, which means the media creators eventually go back to flipping burgers.

In short: abolishing copyright entirely completely eradicates the financial incentive to pay artists to make work. I'm sure some will do it anyway, but most people have to make a living, so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

The Real Problem

The real problem with copyright law is that large corporations are allowed to possess them. This is just another example of the much larger problem of large corporations being allowed to do anything an individual can do. Even in your example, the author doesn't necessarily own the copyright. Often, it is the publisher that does so, which is good if a lawsuit is required, but it limits the author's future right to do what they wish with their work. In short, why is a company that has not produced anything creative allowed to take advantage of a legal right that was supposedly enacted to protect creativity? Perhaps these corporations should only be allowed to possess limited copyrights that only extend to the first production of the work in question, with all rights thereafter reverting to the artists who created the works. I have no absolute solutions, but I really think this needs to be looked at from the point of view of what would actually increase creativity in the real world and not just in the corporate bizarro world.

Re:The Real Problem

Perhaps these corporations should only be allowed to possess limited copyrights that only extend to the first production of the work in question, with all rights thereafter reverting to the artists who created the works

Already can be done - licensing. Artists aren't obliged to sign their copyrights away - they can instead let somebody license the work from them with whatever restrictions they feel fit to place upon it.

The problem is, historically, the cost is distribution. To make any money from your copyrighted work you need to distribute it, distributing it means going to the big media companies and they'll only distribute if you hand over the copyright, not license it from you.

The internet, computers, podcasts, YouTube and the like are moving the distribution cost lower and lower. Hopefully we'll get to a point soon where artists realise they aren't beholden to some of the current companies to get their works out and make a reasonable sum of money from it.

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The real problem with copyright law is that large corporations are allowed to possess them.

In short, why is a company that has not produced anything creative allowed to take advantage of a legal right that was supposedly enacted to protect creativity?

A co

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...so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

Why? Is the concept of a "professional artist" somehow sacred? Anyway, this is not true: think of musicians who make a living doing live shows.

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Anyway, this is not true: think of musicians who make a living doing live shows. Maybe that wouldn't work for some types of artists, but again, why should they be guaranteed a certain way of making money?

It's not the artist's income only that copyright seeks to protect, it's also the cultural enhancement that society itself recieves and benefits from, which is more intangible but nevertheless a Good Thing. Yes, if all copyright were abolished some artists in some mediums would continue to produce, but we would not have anywhere near the amount of creative works we have now since it would be much harder to earn a living without doing some other parttime work. Copyright is supposed to strike a balance between the needs of the creator (income) and the needs of society (entertainment, culture) but lately the balance has been pushed by corporations far in favor of the creator, or rather the holder of the copyright. One way that this might also be addressed is to prohibit the wholesale transfer of copyrights to corporations, removing the incentive for a corp. to hoard works and lobby for ever stronger/longer terms. Just a quick thought, needs more fleshing out.
My main point was to defend the parent who I believe is essentially correct: removing all copyrights will in the end hurt artists by making it harder for them to make a living solely from their works and returning us to a period where works are produced mostly on commission, which means only the wealthy could afford what we take for granted today. It won't happen overnight, and it won't stop all artists from producing, but the variety, quality, and breadth of works currently available will definitely decrease.

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Why must we "strike a balance" in copyright law?

I get the impression that you don't understand what copyrights are. If you have a copyright to an idea you do not own that idea. Ideas can not be owned. Period. Copyright laws and patents do not contradict this common sense notion. A copyright law does not grant you ownership of an idea. It grants you ownership to exclusive rights to control the distribution of that idea for profit.

This isn't just a matter of pragmatics (although that comes into it to) but also of ethics. If it takes me 1,000 hours to write my novel is it fair that anyone else can come and copy it and sell it? I invested the work, but if there's no copyright law then they can reap the benefit. Most people agree that this is not fair. So artists deserve *some* rights.

On the other hand if I spend 1,000 hours writing a book does it makes sense that I can then sue someone for quoting a passage from my book? Or that I can stop people from reading my book if I don't want them to? Imagine an author wandering around a book store "I don't like the looks of you, give me that book back. Get out." So clearly giving artists *all* rights is also not fair.

Since both extremes - no rights and all rights - are not ethical than if you want to find the ethical then by definition you are looking for something in between. You are, as it were, attempting to strike a balance.

Do physical property laws "strike a balance"? No, what's mine is mine, and what's your is yours, period.

This is false. Both taxes and eminent domain demonstrate that we do, in fact, strike a balance in this case as well. If you own a house on land the country needs for a road, then you don't get to say "what's mine is mine". The gov't knocks your house down (and pays you for it).

I disagree. The total quantity of works produced might decrease, but I think the variety would actually increase.

It's called the tragedy of the commons. If everyone can profit from an copying from an invention as much as from inventing the invention, then everyone has the incentive *not* to be the one that does the hard work of inventing. This is a more fundamental law than your liking for indie music. Why should there be a larger variety of music if people are being paid less to make it? It's not as though anyone is forcing people who are willing to make music for free not to make it now. So right now everyone that is willing to make money for free makes it, and also people who need or want to get paid make it. You take away the option to get paid, and only the people willing to make music for free will make it. How are fewer artists "more variety"?

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A copyright law does not grant you ownership of an idea. It grants you ownership to exclusive rights to control the distribution of that idea for profit.

IANAL and neither are you. For one, you are confusing patents and copyrights. Copyright is an artifical monopoly granted by the government in respect to a particular expression of an idea. It is not possible to copyright an idea - as you would have learned if you had checked Wikipedia [wikipedia.org] before posting.

Copyright law is not a matter of ethics. It is simply law and public policy. As the Constitution puts it: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." You'll notice that the focus is on progress - not because it is "right" from any moral perspective.

Further, there is a problem in your premises. Specifically, you aren't using your imagination or referring to historical precedent where copyright did not exist, yet creative works were produced. The University system and patronage are historical examples. I can imagine cooperatives that could provide a basic standard of living for artists and other possible formulations that you probably haven't considered. Copyright is only one way to skin this particular cat.

It's called the tragedy of the commons.

Tragedy of the commons is actually based on scarcity. The problem you have is that you are assuming that creative works are fungible. Here's the example that shows the flaw in your reasoning. Suppose The Beatles decide to release all their music and make it all public domain. Now, since all their music is available - according to your reasoning, no one will make any music anymore. No need to create derivative works. Why bother because The Beatles is freely available right? Wrong. People like to make music. They like to make new sounds/songs, listen to new sounds/songs and so forth. The fact that The Beatles catalog is freely available means I have a treasure trove of sounds to incorporate into my own music - and great music to listen to as well. The tragedy here is that in reality the Beatles catalog is not available in the commons. If it were in the commons, no tragedy of the commons would occur due to its available. Nor would the tragedy of the commons come into play if every copyrighted piece of music were available and copyright were abolished - any more than it would be for individual artists. Also as most musicians know, your money comes from touring - which isn't about copyright. You need to work on this argument.

Why should there be a larger variety of music if people are being paid less to make it?

Because most people making music don't make music for money. Even among those that do, most don't play solely music to maximize their profit.

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For one, you are confusing patents and copyrights

No, I'm not. I'm speaking in general terms about intellectual property - both patents and copyrights (throw in service marks and trademarks if you like, but I think those are kind of a different idea). Pat

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In short: abolishing copyright entirely completely eradicates the financial incentive to pay artists to make work. I'm sure some will do it anyway, but most people have to make a living, so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws. It's called patronage, and it worked for thousands of years.

Maybe if every teeny bopper whore who wants to pout at a camera, sing to an over-produced track and get paid millions for it suddenly can't make money because the artificial monopoly supporting such a business model vanishes, we wouldn't be innundated with mindless crap. Maybe we would all be better off if the only people who made art were the ones that were passionate enough to make it without thought of getting paid.

Nah, you're right. That's crazy.

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Yay, back to the good old days where the only art produced was that that explicitly glorified the extremely wealthy!

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I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws. It's called patronage, and it worked for thousands of years.

Thousands of years without every man, woman and child owning a high speed "printing press" in their homes

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Thousands of years without every man, woman and child owning a high speed "printing press" in their homes

This is actually a very historically apt example. From wikipedia:

Movable type

The printing press brought the possibility of compensation for literary labor. Very speedily, however, the unrestricted rivalry of printers brought into existence competing and unauthorized editions of various works, which diminished prospects of any payment, or even entailed loss, for the authors, editors, and printers of the original issue, and thus discouraged further undertaking. Any person with a press and some skills could use movable type to publish books and other items. Scribes and scriveners were no longer needed.

Protection for the authors and their representatives was sought through special privileges obtained for separate works as issued. According to Elizabeth Armstrong (whom the Curators of the Bodleian Library awarded the Gordon Duff Prize in 1965 for her essay on Printers' and authors' privileges in France and the Low Countries in the sixteenth century), "The republic of Venice granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the 'Rerum venetarum ab urbe condita opus' of Marcus Antonius Coccius Sabellicus" (page 03). [ Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press (Cambridge: 1990). ] "Venice began regularly granting privileges for particular books in 1492. http://en.wikipedia.org/wiki/History_of_copyright_ law#Earliest_copyright_disputations [wikipedia.org]

As soon as the means for cheap reproduction existed, the need for copyright was seen. Copyright laws date back to the 15th century. I'm not sure what "greatest works of time" you were thinking of, but I'd wager at least some of them actually came into existence *after* the printing press (and therefore were probably copyrighted at the time) and in any case the point remains: before easy reproduction there was no need for copyright law, afterwards there was.

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"I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws."

I'd like to point out that there was no such thing as effective copying. Patronage worked great when directly hiri

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Maybe if every teeny bopper whore who wants to pout at a camera, sing to an over-produced track and get paid millions for it suddenly can't make money because the artificial monopoly supporting such a business model vanishes, we wouldn't be innundated with mindless crap. Maybe we would all be better off if the only people who made art were the ones that were passionate enough to make it without thought of getting paid.

This strikes me as really funny. Like it or not, the reason that pop songs like this keep getting made is because people by them. It's actually relatively democratic. I mean, you might not like the music. I certainly don't care for it. But you can't argue with the fact that a lot of people like the music enough to pay money to get it.

But rather than the democratic ideal you'd rather go back to a system where a few mega-rich fat dudes literally decided what got made. You honestly think that would be an improvement? You know what - evenif the mega rich fat dudes were all my friends and made sure that all my favorite screamo bands and prog rock bands stuck around forever, I'd still be deeply troubled by the fact that in general people had to buy music that was decided for them by a few rich people.

Consumerism lets people vote with their wallets. The trouble is, as you've observed, they tend to make stupid decisions. Still, I'd rather take the stupid masses than a tyranny any day: even when it comes to music and not politics.

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False dilemma, red herring, total logical disconnect.

Your wife owns herself. And no one's arguing that we should drop ownership of property laws. Objects can be owned by nature of them being tangible.

Information is nothing but a different 'type' of object, and there's no reason there should't be ownership laws involved

How about "the will of the people?"

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nformation is nothing but a different 'type' of object, and there's no reason there should't be ownership laws involved.

This is silly. There's a very fundamental difference between tangible goods and ideas. If you take my car, I have no car anymore. If

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fanart, remixes, mods

Interesting choices for examples of stuff people are willing to produce for free. Each and every one of those is a derivative work, or at least based on someone else's original work -- which is mostly likely copyrighted and created at least in part for profit.

Sure, you'd lose the work of some (like Harry Potter), but it wouldn't disappear entirely.

So we'd lose all of the original work, and be able to 'mod' and 'remix' each other's derivative dreck. Woo hoo.

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As far as what J.K. Rowling might do in your hypothetical scenario, I think these options are more likely:

1. hold out for more money upfront, as a lump sum payment
2. switch publishers

Except that no publisher in their right minds would pay JK any significant sums of money because as soon as the first copy is on the bookshelf publisher b can print their own copy. If JK were to switch publishers to publisher b, then JK is faced with the same problem.

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Ok, I have mod points, but I really wanted to reply to this and the whole article's moderated to hell anyway... I don't do AC.

The problem with your first point is that the mega-publisher has no incentive at all to do that. They'd probably have to pay Rowl

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In fact that's where the money is supposed to be made, in the performance of work, not the distribution of reproductions.

So... how many novels have you seen performed? Not adaptations of novels, but actual novels? There's an argument to be made that copyright is less important for the performance arts, but in that case you're not merely selling the work, but the performance of the work. So it makes sense. But a lot of art is not performed. Just tough look to them? I suppose Terry Pratchett should just start writing novels live and charging $10 an hour to watch him work?

I don't care about publishers and distributors. They're just ripping off the creators like the railroad monopolies did to the farmers, and they can all rot.

They are *now*, but that's because now any 8 year old with a CD can make perfect digital copies of most forms of art. Music, video, or text. But publishing companies were invented when the means of publication and distribution were much, much more expensive. The plunge in the cost of publication and distribution is a relatively new thing, historically.

The publisher's teat is running dry. They are a fifth wheel trying to put more laws on the books to maintain the artists' dependence on them.

This is a drastic overstatement. One of the most important things publishers do is marketing. And as Google shows, that's still an industry that is thriving today. So publishers aren't dead yet. Furthermore, not all media is digital yet, and that means there's still a reason for publishers to exist. I want a hardback copy of Harry Potter and the Deahtly Hallows, not a .pdf.

Why should I subsidize a full time artist with corrupt law that only promotes hoarding and speculation?

This is just silly. Copyright law doesn't force you to subsidize anybody. If you don't want to subsidize J. K. Rowling, don't buy her book. That's fine with me. Find an author that is willing to give their work away. But I'm happy to give J. K. Rowling her money. And if she has worked out a deal with Scholastic to print the book, then I'm happy to give them their cut. And if Borders is kind enough to take shipment of the books and provide nice displays for me to peruse, than I'll gladly fork over some cash to them as well. Conveniently enough for me, all that money is bundled into one transaction.

Copyright doesn't force you to pay money at all. It just gives authors the right to set limitations on their work. If you don't like the price they set: don't pay. You don't have some inalienable right to enjoy art you didn't create for free.

There is no reason a reproduction of work already performed should fill your wallet. Make your contract, perform the work, get paid, and walk away. That's all you or anybody else is entitled to.

Did you really write this entire thing without ever once stopping to think that not all art is performance art?

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omfgpwnt

I have a better idea—don't tag it that. Google's publicists didn't get in any more concrete argument here than Viacom's did.

Both Google and Viacom desperately want to set the agenda and the precedent for online distribution of media. With the increased importance of digital distribution, the future of both companies may depend on convincing the courts to see things their way. These ploys are merely the skirmishes between forces scouting for good positions; the real battle is yet to come.

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While not a lawyer, the precedent in this case is in the realm of flea markets. Copyright owners are responsible for identifying infringing content, not the organizers of the flea market.

Now, if it became clear that flea market organizers kept welcoming

Analysis from the Future

Optimistic: one day our grandchildren won't believe us when we tell them how ridiculous the state of intellectual property law was back in the early 21st century.

Pessimistic: we won't be allowed to tell them, for copyright reasons.

Re:Analysis from the Future

For an interesting and somewhat chilling read on what the future might be like if we follow the pessimistic path then read "The Right to Read" by RMS. http://www.gnu.org/philosophy/right-to-read.html [gnu.org]

Here's the beginning:

For Dan Halbert, the road to Tycho began in college--when Lissa Lenz asked to borrow his computer. Hers had broken down, and unless she could borrow another, she would fail her midterm project. There was no one she dared ask, except Dan.

This put Dan in a dilemma. He had to help her--but if he lent her his computer, she might read his books. Aside from the fact that you could go to prison for many years for letting someone else read your books, the very idea shocked him at first. Like everyone, he had been taught since elementary school that sharing books was nasty and wrong--something that only pirates would do.

Re:Analysis from the Future

sharing books was nasty and wrong--something that only pirates would do

Somehow I doubt there was ever a pirate sitting on the deck of his vessel in the early evening, sipping his tea and perusing The Lay of Leithian in his off-hours from pillaging the nearby towns.

Re:Analysis from the Future

I just can't wait to see when Disney loses rights to their very early stuff, that will be a laugh and a half.

That won't happen. They will ask for and receive extension after extension.

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As I suggested elsewhere on this thread, why should any corporation be allowed to own the creative work of real people for decades into the future? Why can't they simply be limited to first use rights or first year rights or some such limiting factor and t

Hi From Google!

I think Google just drew a big middle finger over the Viacom HQ on Google Maps...

Groklaw

Well, it looks like Groklaw will now have something to cover after the IBM-SCO lawsuit is done. Hopefully this one won't take 4+ years to be decided.

I was on the Mad TV site...

And clicked on the "you tube" link from the Mad TV site only to find the content had been pulled from You Tube and Mad TV's account was suspended. (I don't know if this is still the case, as this happened a few days ago). I assume Mad TV had originally posted the material, since the link to You Tube was from the Mad TV official site. Anyway, that's not the only one I've come across where legitimate content, posted by the right hand of one company, was ordered to be pulled by the left hand of the same company. I think that You Tube represents a significant opportunity to get Viacom's content out there for people to watch. It's a shame they can't come to some sort of agreement. (And it's a shame Viacom doesn't like the law they helped pay for).

Hee hee, go Google.

I think Google's response is spot on and equally important highlight's some of the ineptness that exists in the media industry. How is it that Viacom cannot adequately identify their own material? That's just astounding. And just how do they expect someone to know if it is their material? What bunch of buffons. If I were a stockholder of that company, I would be grilling the CEO and boardmembers about just exactly why they are not doing their jobs and keeping track of property the company owns.

Translation

Viacom to Google: *snarl*

Google to Viacom: *smack*

Viacom: *whimper*

Real issue here

There are a bunch of side issues here, like what is fair use when considering a video clip of some duration. But there is one big issue:

Entity A has a service by which lots of stuff gets picked up and made available to others. Some of this is owned by other people and Entity A has no rights to it at all. Is it Entity A's responsibility to ensure they do not collect such material, or is it the owner's? DMCA pretty clearly says it is the owner's and this works on a small scale pretty well.

But when Entity A is the size of Waste Management and they "accidently" pick up every car in your neighborhood to sell them at auction, is it necessarily a good move to say that every car owner has to sue them individually?

YouTube is a vacuum cleaner of mammoth proportions and is certainly capable of sucking up whatever content there is to acquire through the dillgent efforts of anonymous contributors. There are vast similarites with Napster here - sure there is a lot of non-infringing content but also lots of infringing content as well. Grokster pretty much said the service can be held liable for copyright abuses of its users.

I don't think this is at all clear cut. Yes, Viacom probably could do a better job at identifying infringing material and a compromise might be to enable Viacom (and others) to have easy access to recently-uploaded materials for such identification purposes. But in no way does YouTube (or anyone else) get to say they have no responsibility in the matter at all.

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The distinction is that YouTube isn't vacuuming up the content. Individuals are posting it there. YouTube simply provides the hosting. Not everyone can afford to run their own co-located servers to host their own videos, and the safe-harbor provision of th

Re:This requires some translation:

This translates to "Drop your lawsuit or you're guaranteed to lose. Besides, our market cap is much bigger than yours so we can simply buy you to make this go away. Na na na na na na!"

Nah, Google doesn't want Viacom to drop the suit. Google was gunning for this fight and they want Viacom to come at them swinging hard. It's a fight Google is likely to win, but it has to be a fight otherwise it won't resolve anything and the rampant DMCA abuse will continue.

Re:This requires some translation:

It doesn't work that way. If it did, that loophole would already have been exploited dozens, hundreds of times.

If Viacom can't do it, they shouldn't expect ...

... others to do it.

It has already been shown that ifilm contains material which they don't own the copyright. Viacom, can't police that material, why should anybody expect google to do what the originator of the lawsuit is crying about?

And google does have a way to report questionable material, you hit the "flag as innapropiate" and choose "Other terms of use violation". In addition the same button has a link for copyright owners to object to the material. That really seems fair enough to me.

The only technical solution would be to filter words, which is a stupid alternative. As I may want to upload parodies of "Steve Colbert" instead of actual video from his show.

Re:If Viacom can't do it, they shouldn't expect ..

It has already been shown that ifilm contains material which they don't own the copyright. Viacom, can't police that material, why should anybody expect google to do what the originator of the lawsuit is crying about?
...
The only technical solution would be to filter words, which is a stupid alternative. As I may want to upload parodies of "Steve Colbert" instead of actual video from his show.

YouTube currently has a filtering system in place.

They licensed technology from AudibleMagic [google.com].
(MySpace has also licensed the technology for filtering.)

YouTube only pre-filters content for media companies who have entered into a licensing agreement with YouTube. The company gives YouTube hashes of their copywritten works & YouTube plugs those into their database. Viacom briefly mentions all this in their editorial & in the legal complaint (paragraph #7 & again further on).

Anyways, maybe the Judge will tell Viacom to license AudibleMagic's technology and use it on their own site... Who knows? But the main thrust of your argument is based on the claim that GooTube can't filter and you're wildly wrong. Don't worry though, lots of other people have been making that same argument, wrongly of course.

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Sure, it may be easier for Google. But it's not their responsibility to enforce the copyright of others. Viacom is trying to enlist the world in their search for copyright infringement.

I sincerely hope nobody from the MPAA, RIAA, or Viacom sees your p

Re:After reading both letters...

"Basically whose responsibility is it to identify... "
Viacoms.
"...and remove..."
YouTubes.
" infringing copyright material?"

This isn't up in the air, debateable stuff; it's spelled out perfectly clearly in the law.

"I'm not a lawyer"
Clearly.

Re:After reading both letters...

Basically whose responsibility is it to identify and remove infringing copyright material?

The DMCA safe harbor provision declares it to explictly be the owner of the copyright who must object & request the takedown of the material. In fact, it has always been the responsibility of the copyright owner to initiate any form of copyright complaint. There is no way that YouTube or any other content aggregate can determine if the material is:

1. copyright by a specific individual (Stephen Colbert posting a home video) vs copyright by a company (A clip from the Colbert report).
2. Permitted by the company (Any number of adds posted on YouTube by the add company)
3. Permitted under fair use (Yes it still applies)
4. Used under license from the copyright owner by the poster.

Given those factors, it is strictly the copyright owners responsibility to identify & request the removal of infringing material. YouTube in fact goes farther & uses a hash system to block the re-upload of videos it removes - in effect performing the pro-active filtering that Viacom wants.

Why not? Because it's overkill

Like most people, I sometimes go over the speed limit while driving to work (sometimes by as much as 10 miles per hour!) I'm sure that if the Federal Government started arresting people for speeding, most people (myself included) would speed a lot less.

Of course, any elected official trying to 'crack down on speeding' by tossing speeders in jail wouldn't last long in office. When you give ridiculous punishments for minor offenses, you just breed contempt for the law (not to mention annoy everyone but special interest groups).

Re:It's a law enforcement issue

Yeah, but why would the small independent entertainer ever want to do this? YouTube, P2P File Sharing, hey even MySpace Music and Pandora (Though the last two haven't been sued yet AFAIK) all are great ways for these lesser-knowns and amateurs to get their material in front of people. I think the argument that anyone, besides the RIAA and Metallica, actually sees this as a problem is long stale. I was at a Stephen Lynch http://en.wikipedia.org/wiki/Stephen_Lynch_(musici an)/ [wikipedia.org] concert last month when he made a revealing (to me at least) statement about a song he was not going to perform, "Buy the album, go to iTunes, download it off LimeWire, I don't give a fuck." His albums were noted by Apple as two of the 100 best-selling Independent albums on iTunes in 2005. These artists don't want to send the cops after people who like their music, they want those people to continue liking it so that they will pick up albums and go to shows. Artists make more money touring than they do with album sales by a hefty margin. You can't download the front row.

Re:

You're wrong here. It was absolutely necessary for Google to make a public stand on this issue. Google's reputation was sullied in the public eye by the news coverage of the pending litigation. By writing the open editorial piece, Google is taking a fir