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Could unearthed emails aid Viacom in its YouTube lawsuit?
By CMU Editorial | Published on Thursday 8 October 2009
So, an interesting development in the ongoing and previously reported Viacom v YouTube legal squabble courtesy of CNET.
As much previously reported, MTV owners Viacom are suing YouTube over allegations of copyright infringement. Viacom claim that the Google-owned video service infringed its copyrights by allowing punters to upload clips of MTV and VH1 shows onto the YouTube website.
Many content owners have expressed similar concerns – and a consortium of smaller content firms are pursuing a similar legal action – though most of the other major media and entertainment conglomerates, including all four major record companies, have done licensing deals with YouTube rather than sue for any current or past infringing content that may appear on the video site.
Viacom have chosen not to do a deal but to plough ahead with legal action. That may or may not be because, with YouTube positioning itself as a one-stop on-demand music video jukebox, and with their obvious appeal to the youth demographic, the Google service is just too big a competitor to MTV for the original youth telly service to form any kind of formal partnership, even though Viacom channels have used the video sharing platform for marketing purposes.
Of course YouTube frequently hosts all sorts of content that has been uploaded by punters without a copyright owner’s permission, and in the early days that accounted for a bulk of the content on the video service. However, Google’s lawyers argue that, while there may be infringing content on their website, they are not liable for any infringement themselves because they follow provisions set out in US copyright law whereby they remove any infringing content as soon as they are made aware of it.
Viacom’s litigation has been working its way through the US courts for sometime. They are expected to question Google’s interpretation of the so called ‘safe harbour’ provisions in the Digital Millennium Copyright Act that stop them being liable for infringing content they unknowingly host (mainly by asking whether the obligation should really be on the content owner rather than YouTube to spot infringing content). They will also question whether YouTube followed even its own interpretation of the safe harbour rules in its early days.
It’s on that last point that CNET have an interesting update. They report that Viacom have gathered internal emails exchanged by YouTube employees in the early days of the video service which show that staffers there were very aware of infringing content on their website but chose to ignore it, presumably because it’s the ‘user stolen content’, rather than ‘user generated content’, that often generates the most traffic. Not only that, but these emails suggest YouTube employees themselves were uploading infringing content to their platform.
If those practices can be proven in court, arguably YouTube would lose the protection of the safe harbour provisions in the DMCA, which obliges web service providers to act to stop access to infringing content as soon as possible once they are aware of its existence.
Roger Goff, an entertainment lawyer not involved in the Viacom v YouTube case, told CNET this week: “The facts you described could very well be the smoking gun that puts a hole through Google’s case. [If the facts are accurate], Google will have a very difficult time claiming that [its staff members] don’t undermine its protection”.
Viacom and others have often questioned YouTube’s claims that it has always acted quickly to remove infringing content off its website. While the video service’s content removal system has definitely been honed in more recent times, and is being increasingly automated to reduce the workload of copyright owners in monitoring the presence of their content on the site, in the early days quite blatantly infringing content sat on YouTube for months, often appearing in the most viewed lists on the home page. YouTube staff, Viacom would argue, would have had to have been pretty dumb to not realise said content shouldn’t be there.
For their part YouTube argue that it was never as easy to spot infringing content as some make out, not least because many content owners quickly started using YouTube as a marketing channel, legitimately uploading content that sat next to that which had been illegitimately uploaded by punters. Viacom has itself admitted its channels were among the first to utilise YouTube for promotional purposes. The evidence CNET’s sources talk about, though, could make YouTube’s claims of innocence harder to swallow.
A spokesman for the video site, though, thinks not. Aaron Zamost told CNET: “The characterisations of the supposed evidence, made in violation of a court order, are wrong, misleading, or lack important context and notably come on the heels of a series of significant setbacks for the plaintiffs. The evidence will show that we go above and beyond our legal obligations to protect the rights of content owners”.
The lawsuit continues to work its way though the system. It was originally thought that Viacom v YouTube would be a big test case on the lengths to which services like YouTube, which do aid copyright infringement in some ways, have to go to in order to avoid liability for that infringement. That said, some now question how big a precedent the case will set, even if Viacom were to score some level of victory.
Firstly, some of the disputes regarding interpretation of the DMCA have been addressed in less high profile lawsuits involving other video sharing sites and content owners, the main ones of which have been reported on here. Generally, the YouTube clones have been victorious.
Moreover, YouTube’s content take-down system has developed hugely in the last year, with past promises of technical solutions finally coming to fruition (in fact there were new developments in this domain just this week). Chances are the video site is now already operating a system that surpasses any specific obligations the court would prescribe in a ruling on the Viacom case. Therefore a Viacom win, while maybe necessitating some kind of damages payment for past infringement, wouldn’t necessarily require any change to the way YouTube operates as of today.
In related news, Google top man Eric Schmidt has admitted his company probably paid too much for YouTube in 2006. Their 1.6 billion dollar purchase of the video site was one of the first silly money web deals post the original dot-com collapse. He admitted this week the service was probably only really worth $600 million when they bought it in 2006. Still, what’s a billion between friends?
