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We considered the effectiveness of YouTube's video search, and how it might be fixed. Now that Viacom has sued Google and demanded damages of upwards of $1 billion for copyright infringement, we have to wonder if YouTube's native search was impaired, rather than ineffective.

Was YouTube Search Bad By Design?

Although Google Video Search now includes YouTube results, that technology hasn't made it onto the YouTube site yet. It hasn't stopped people from finding content, especially that from major content providers.

Finding it through YouTube's search may have been a fool's errand anyway, if the accusations leveled at it by Viacom find a welcome listener on the bench in now-Governor Eliot Spitzer's old stamping grounds, the US Southern District for New York.

Viacom's suit against Google accused it and YouTube of making copyrighted works hard to find, on top of forcing the copyright holders to do the legwork and report infringements to YouTube for removal. From the complaint as listed by the Wall Street Journal:

YouTube has also implemented features that prevent copyright owners from finding infringing videos by searching the YouTube site. YouTube thereby hinders Plaintiffs’ attempts to locate infringing videos to protect their rights. At the same time, YouTube allows its users to make the hidden videos available to others through other YouTube features like the "embed," "share," and "friends" functions. In this way, YouTube continues to profit from the infringement, while hindering Plaintiffs from preventing it.

Those last three functions were certainly developed over time for YouTube. The trickier question comes from the beginning sentence: did YouTube intentionally tweak its search, and its site, to keep the Big Media players like Viacom from really seeing an undercurrent of copyright infringing trading?

Viacom listed this among several complaints, but it could be the more important one. Determining willful hiding of infringing content could make a supporting argument for Viacom's claim a la MGM v Grokster. The Grokster opinion by Supreme Court Justice David Souter found that the music-sharing site presented itself as a way to get around copyright restrictions.

Any finding that YouTube may have aided infringement, even without actively promoting evasion of copyright, may be a lightning rod in the case.