Though Viacom has lost this battle in the past, the media giant refused to accept the loss, and has continued the fight.

Google provided an update about the case on the Official YouTube blog, and it goes like this: “YouTube wins case against Viacom (again)”. In the post, Google SVP & General Counsel, Kent Walker, writes:

Today is an important day for the Internet. For the second time, a federal court correctly rejected Viacom’s lawsuit against YouTube. This is a win not just for YouTube, but for the billions of people worldwide who depend on the web to freely exchange ideas and information.

In enacting the Digital Millennium Copyright Act, Congress effectively balanced the public interest in free expression with the rights of copyright holders. The court today reaffirmed an established judicial consensus that the DMCA protects web platforms like YouTube that work with rightsholders and take appropriate steps to remove user-generated content that rightsholders notify them is infringing.

The growing YouTube community includes not only a billion individual users, but tens of thousands of partners who earn revenue from the platform — from independent musicians and creators to some of the world’s biggest record labels, movie studios, and news organizations. Today’s decision recognizes YouTube as a thriving and vibrant forum for all these users, creators and consumers alike. Today is an important day for the Internet.

Google shares the official Viacom Opinion court document here.

[Image via jm3, Flickr]

Here’s what Daniel Tosh had to say about it.

Viacom has now cut off online streaming of some of its shows from its sites, to all viewers, so now even people that aren’t DirecTV customers no longer have convenient online access. CNN reports:

Fans can no longer watch full episodes of shows like “SpongeBob Squarepants” and “iCarly” or “Jersey Shore” and “The Daily Show,” which is sure to further anger the 20 million DirecTV subscribers who continue to find a dark screen when they change the channel to Viacom-owned nets like Nick, MTV, Comedy Central and VH1.

“Once again it’s viewers who suffer when media companies stall in their negotiations. But the scale of Viacom’s overreaction is unprecedented,” said John Bergmayer, a Senior Staff Attorney for the Washington-based public interest group Public Knowledge.

“Viacom has decided to take a service away from all Internet users in its attempt to punish DirecTV,” he added. “It is apparent that Viacom puts little stock in the Internet and the online future of video if it is willing to use all Internet users as a pawn in its negotiations.”

“We hope that Viacom and DirecTV can work out their differences quickly so that people can continue to access Viacom’s popular content lawfully,” he said.

And that’s just it. Those who want it bad enough, will probably seek out access that isn’t so lawful.

Some Viacom content is still available via shows websites and mobile apps, and on Netflix, and probably other similar services. In fact, The Daily Show – one of the shows pulled from online access – still has clips accessible via its Android app.

DirecTV issued a release, saying that its execs have reached out to Viacom with a new proposal, and a request to keep channels while negotiations continue, but have not heard back from the media giant. DirecTV says it had to comply with Viacom’s demand in order to avoid legal action.

“We have been very willing to get a deal done, but Viacom is pushing DirectTV customers to pay more than a 30 percent increase, which equates to an extra $1 billion, despite the fact that the ratings for many of their main networks have plummeted and much of Viacom’s programming can be seen for free online,” said Derek Chang, DirecTV executive vice president of Content, Strategy and Development. “Viacom sent us a letter last night that outlined our obligations to remove the channels by midnight or face legal action just as they were falsely telling viewers DIRECTV was responsible. Let’s be clear, Viacom took these channels away from DirecTV viewers.”

DirecTV has a site set up with more information about what’s going on, and says it will get the deal done.

Comedian Daniel Tosh, who hosts Comedy Central’s Internet video show Tosh.0, and is currently also in the news for a rape joke, has been talking about the situation a little on Twitter. Before Tosh.0 aired on Comedy Central on Tuesday night, Tosh tweeted:

Follow @danieltosh

daniel tosh
@danieltosh

30 minutes until all of you directv viewers will watch your last episode of tosh.0 ever. #sadface

 Reply  ·  Retweet  ·  Favorite
11 hours ago via web · powered by @socialditto

He later followed up with:

Follow @danieltosh

daniel tosh
@danieltosh

thanks everybody and lets all pray this viacom/directv beef gets squashed by next week.

 Reply  ·  Retweet  ·  Favorite
10 hours ago via web · powered by @socialditto

The court upheld a lower court decision that ruled Viacom’s Comedy Partners were correct in their fair use defense concerning a 2008 South Park episode that lampooned a classic viral video from 2007 – Samwell’s “What What (In The Butt), which currently sits at over 47 million views.

The lower court said that South Park’s version featuring the character Butters made “transformative” use of the original by somehow doing “the seemingly impossible — making the ‘WWITB’ video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits,” according to The Hollywood Reporter.

Brownmark Films, owners of the original What What (In The Butt) video claimed that the lower court had no right to consider a fair-use defense and throw out the case before a trial. The appeals court sided with the lower court.

The crux of the decision rests on the fact that Brownmark cannot now oppose the claim of fair use, and even if they could they would fail because South Park’s version is a clear parody that “comments” on the original:

This matter is simple because Brownmark, in response to SPDS’s motion, did not address fair use as applied to the WWITB videos, and instead insisted that the court could not consider the matter at a 12(b)(6) stage. Since Brownmark never opposed SPDS’s fair use argument in the dis tric t court , we conside r the argument waived.

However, even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a10 No. 11-2620
trial. When the two works in this case are viewed side-byside, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of
certain YouTube videos.

One of the big things, long-term, that comes from this decision is that it affirms that it is possible to use the fair-use defense to get the case thrown out in the early stages of the suit.

When all relevant facts are presented, the court may properly dismiss a case before discovery…

Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of WWITB and the episode at issue.

Basically, all the court needed to see was the two videos side by side and they could make a decision. It was that obvious.

I mean, take a look for yourself:

Pretty open and shut from my point of view. If nothing else, these legal proceedings were worth it just to see What What (In The Butt) slip into the official record, abbreviated as “WWITB.”

The terms of the settlement are not known, and neither company is talking apart from the joint statement released yesterday afternoon. All either company is saying is that users of the TWC TV app will begin having access to programming from channels like VH1, Comedy Central, MTV, and others, and that both companies are pleased at the deal. Here is the joint statement the two companies issued:

Viacom and Time Warner Cable have agreed to resolve their pending litigations. All of Viacom’s programming will now be available to Time Warner Cable subscribers for in-home viewing via internet protocol-enabled devices such as iPads and Time Warner Cable will continue to carry Viacom’s Country Music Television (CMT) programming. In reaching the settlement agreement, Time Warner Cable and Viacom were also able to resolve other unrelated business matters to their mutual satisfaction. Neither side is conceding its original legal position or will have further comment.

Reading between the lines, it looks like both companies realized that continuing the legal battle would be both costly and time consuming, and that each stood to make considerably more money if they settled.

The dispute started last year when Time Warner released their TWC TV app. The app allows Time Warner subscribers to watch live TV programming on their iOS device anywhere in their house (i.e., on their home wi-fi network; nowhere else). Content providers like Viacom reacted poorly to the app’s release, however. To them, the streaming app represented a new method of distribution that was not covered by their agreements with Time Warner. In short, they felt that Time Warner had the right to pipe their programming into your TV, but not into your iPad. The companies sued each other in Federal court. Viacom demanded (PDF) that Time Warner be ordered to cease its “unlicensed distribution” of Viacom’s content, while Time Warner asked (PDF) for a ruling declaring that streaming to a subscriber’s iPad was covered by existing distribution agreements.

Interestingly, it appears that neither company actually budged on the legal question. Note the bit at the end of the statement: “Neither side is conceding its original legal position.” In other words, Viacom still thinks Time Warner doesn’t have the right to stream Viacom’s programming. The fact that Viacom has agreed to let them do it anyway raises very interesting questions about the terms of the settlement.

At any rate, if you’re a Time Warner subscriber with an iPhone or iPad, you can get the app for free from the iOS App Store. You should be able to see programming from MTV, Comedy Central, and other Viacom properties over the next few weeks.

Just a few minutes after it gained some media coverage from UpRoxx and IFC, Viacom inexplicably took the video down, citing copyright infringement.

This is where I would have posted the video, allowing you to reminisce on all the great contributions Yauch has made to the music world and to reflect on how he changed your youth for the better.

Like most, I thought this was a nice remembrance for a musician that helped bring hip-hop into the mainstream, and influenced so many of my generation. Viacom, on the other hand, is worried about sales of its “Lost Episodes” DVD, which sells for $9.49 on Amazon. Accounting for all the people that immediately thought they needed to buy that DVD, to see one of Yauch’s on air performances, Viacom would have made about $20. Instead, anyone who sees this article or notices the video was removed from other sites that tried to cover it, should make a conscience effort to never purchase it.

The episodes were “lost” when Chappelle decided not to return for a 3rd season of the show, citing creative differences and feeling that his show was becoming too commercial. Chappelle has said that he never wanted the episodes to be released, saying he felt like he was being laugh at instead of with. Another instance where Viacom ignored the wishes of the artist for commercial gain.

Rest in Peace, MCA. Hopefully Viacom will be alone in trying to capitalize on your death.

Brin ominously told the Guardian that there are “very powerful forces that have lined up against the open internet on all sides and around the world.” Brin cited several issues that, while applicable to the average internet user’s access to the web, are issues near and dear to the heart of Google.

He compared previously proposed bills like SOPA and PIPA to internet restrictions enacted in more censorship-ready counties like Iran and China. Brin also opined that he didn’t expect that the government siding so heavily with the entertainment industry would actually curb any kind of illegal file-sharing of copyrighted materials, saying that people will always find a way to circumvent the laws in order to download pirated content. Instead of blaming the internet user, Brin said that it was the fault of the entertainment industry for creating an environment that encouraged privacy in the first place. “When you have to jump through all these hoops [to buy legitimate content], the walls created are disincentives for people to buy,” he said.

The issue of online piracy was recently renewed once again earlier this month as a court order Google’s online video site, YouTube, to defend itself in a new lawsuit filed by Viacom, who has charged that the website is guilty of perpetuating the access to pirated material to millions of internet users.

Brin also didn’t hold back his criticism of two his company’s chief rivals, Facebook and Apple, saying that their notorious walled gardens are “restrictive” and that such practices stifle imagination and invention. Given that Facebook is said to be working on its own search engine these days, Brin said that the site would actually have prohibited him and Google’s other co-founder, Larry Page, from even creating Google had Facebook dominated the internet when they created the search engine. “You have to play by their rules, which are really restrictive,” Brin said. “The kind of environment that we developed Google in, the reason that we were able to develop a search engine, is the web was so open. Once you get too many rules, that will stifle innovation.”

It’s peculiar how everything Brin is saying about his rivals could very well be applied to his own company, as well. Google has certainly enjoyed a long run of online dominance over the past several years and continues to command a majority of all search traffic to this day.

The Guardian didn’t let him off the hook so easily, asking him to comment on Google’s recent user privacy overhaul that had much of the internet in an uproar. Addressing the concerns of how Google may turn over user information to the government or law enforcement, he said that Google was periodically required to turn over such data to the authorities. Worse, sometimes Google is “prevented by legal restrictions” from even informing a Google user that their information has been handed over to the government.

So after laying out all of the disparaging words about government intrusion into the internet and competing against other companies, is Brin having a pot-kettle-black moment here?

Here is the new trailer for the Viacom-owned Paramount Pictures’ G.I. Joe: Retaliation, “legally” on YouTube:

A lower court had initially sided with YouTube on the matter, but the U.S. Court of Appeals in Manhattan reversed the ruling today, ordering Google to defend the case. In a 39-page decision, a two-judge panel wrote, “A reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.”

Viacom first sued YouTube in 2007, seeking $1 billion in damages, alleging that the website’s users were posting thousands of Viacom’s clips, included those from “The Daily Show,” “South Park,” and from various movies from its Paramount Pictures branch. In 2010, U.S. District Judge Louis Stanton found YouTube to be protected under the Digital Millennium Copyright Act, because it removed the content from its site, after Viacom complained. Viacom countered, claiming that YouTube was aware of the copyright infringement when it displayed the videos in the first place.

The case is Viacom International v. YouTube, 10-03270, U.S. Court of Appeals for the Second Circuit (Manhattan). The lower- court case is Viacom v. YouTube, 07-2103, U.S. District Court, Southern District of New York (Manhattan).

It would seem that Viacom still doesn’t understand or care about the sheer amount of video content that’s uploaded to YouTube daily – Last year it was reported that 2 days worth of video is uploaded to Youtube’s servers every minute. How would it be possible to keep up with millions of users just constantly posting whatever? And surely Viacom has no problem with the site “officially” posting it’s marketing content.

In a statement from Amazon, Brad Beale, director of video content acquisition for Amazon, said, “Over the last year we have received fantastic customer feedback about Prime Instant Video. We are constantly working to improve the service by adding the shows that our customers enjoy the most. This deal with Viacom brings Prime customers and Kindle Fire users thousands of comedies, kids’ shows, reality TV and much more from some of the best cable networks available. We now offer more than 15,000 movies and TV shows in Prime Instant Videos and are working hard to add even more great content.”

Members of Amazon Prime will be able to enjoy Viacom’s offerings, which include such cultural fascinations like Jersey Shore and SpongeBob SquarePants, on a number of devices, including Amazon’s jewel, the Kindle Fire.

Amazingly, the statement released from Amazon did not recommend any suitable prophylactics required to safely stream Jersey Shore to your Kindle Fire.

Just ask video game developers Naughty Dog, who posted the trailer to their upcoming game, The Last of Us, on YouTube. Shortly after it appeared, it was taken down thanks to a copyright claim from Viacom. Their issue? Even though they didn’t make, produce, advise or star in The Last of Us, because the trailer in question was first shown during the VGA Awards show, which aired on Viacom-owned SpikeTV, Viacom’s claim was temporarily upheld.

Needless to say, such an overzealous application of copyright law, Viacom’s move got the Internet in a tizzy, including Reddit and Kotaku. According to the latter publication, the trailer, which was posted on Naughty Dog’s official YouTube page for the game in question, has been restored. The difference between the pulled on and the live version? The currently-live version mentions the VGAs in its title.

The trailer in question:

Making this situation even worse, SOPA hasn’t even been made into a law yet, so the fear is, scenarios where Viacom overvalues their position as a video game distributor will become commonplace if SOPA survives the legislative process.

Viacom did not make the video game, nor did they create the trailer, but because it was first shown on one of the many channels they own, they have a legal claim to content from an intellectual property that isn’t even theirs? And this is something that will improve once SOPA passes? Forgive me for scoffing at such a ridiculous idea.

In the future, perhaps Sony, Naughty Dog’s parent company, should no longer show first-run trailers on any Viacom-owned channels, even if it is for a video game award show. If Viacom is going to act obstinate about IP that doesn’t even belong to them, they should be blocked from receiving such exclusive content. Fair’s fair.