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Waiting To Litigate: Viacom, Google, And YouTube

Infringement suit puts companies on collision course

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The ongoing dispute between Viacom and Google over the posting of copyrighted content on YouTube appears destined for the courtroom rather than the settlement table.

As we dug a little more into the persistent kerfuffle between Viacom and Google over YouTube, we found little reason to expect a resolution of the case before next year, at the earliest. Google generally fights its battles in court, and Viacom believes the nature of its lawsuit against YouTube puts it in a stronger position to win.

Win what, you might wonder. Usage of content, including its reposting on the Internet, represents a way for people to share what they enjoy. Viacom told WebProNews that’s not a problem, as long as a site purchases a license to do that, as some have.

Not everyone has, of course, and that combined with the constant stream of uploading taking place created a situation where Internet users clash with old ideas about content and sharing. YouTube made it easy for the next generation to swap the 21st Century equivalent of the mix tape with others, but on a one-to-many rather than one-to-one basis.

The merits of fair use bear further discussion; we recommend Stanford and Darknet as a couple of places to look for more legal facts and for opinions, respectively.

Viacom’s dispute with YouTube merits a small review, which we’ll make an effort at delivering here. The suit originated with a six-count claim against YouTube’s deep-pocketed purchaser, Google, in March 2007.

Viacom opened eyes with its billion dollar demand, one the company feels is justified based on the investment Google made to acquire YouTube. What started ostensibly as a place to share amateur videos taken with portable devices grew into a phenomenon; YouTube has become a fixture in modern society.

The mechanisms that make it easy to share video, Viacom said, also enable the rampant copyright infringement the media company believes it suffers in damages. Viacom attempted to assert punitive damages on top of its original claims, a motion Judge Louis Stanton in US District Court in New York (Southern District) denied in March 2008.

In Viacom’s eyes, the infringement process works like this: Someone goes to YouTube and uploads a video. There’s a copy of the work, as it is recoded into codecs that can be embedded and streamed elsewhere.

See that thumbnail of a copyrighted video? Display rights violation. Click the display to watch the video? Performance rights violation.

For Viacom to win out over YouTube, they only need to convince the court on one of the counts they claim. YouTube has to defend against everything.

That will be a formidable challenge for the defense. YouTube also has to show it isn’t encouraging contributory infringement, by inducing others to allegedly infringe by sharing works. Remember the narrowly defined verdict in MGM v Grokster? Viacom thinks it applies here too.

Now that we’ve navigated into these turbulent waters, we can touch on the greater issue of controlling content displayed online. Part of Viacom’s suit argues that YouTube vicariously infringes on the media company’s rights.

That hinges on whether or not YouTube can truly control the content coming into its network. As Viacom pointed out, YouTube can and does filter content today, notable in the event of displays of illegal activity. In China, that includes certain political activism; Viacom believes this shows a mechanism of control exists.

YouTube described its controls to us, and by that description seems to have in place what Viacom called for in the User Generated Content Principles the media company began backing in October 2007.

Google’s announcement of work on tools to satisfy the media content industry’s demand for better policing of uploads led to the development and deployment of Video ID. Its features include taking a digital hash of each video upload.

When a DMCA takedown notice comes in for removal of a video, the hash allows YouTube to block subsequent upload attempts for that work. In theory, this seems to partially address what Viacom wants for the future.

The sticking point comes from policing the uploads for offending content in the first place. It’s a demanding effort, but to us seems like one that should lessen over time; as more content hits the index, that should stave off future infringing uploads of that piece of content.

To our layman’s point of view, a resolution presents itself, one that doesn’t involve a lengthy lawsuit being dragged into a vanishing point in the future. Ensure the filtering technology behind Video ID works to the satisfaction of content creators; enlist the cooperation of major studios to provide hashes of their works to a common database for filtering purposes, on an ongoing basis.

We think this endgame is what both sides want from the lawsuit anyway. With discovery taking place on both sides through the remainder of the calendar year, and neither Viacom nor Google giving any sign they want to settle the case early (Viacom fully expects it to go to trial, and Google tends not to settle cases, historically), the resolution to the suit won’t hit our screens for a long while.

Waiting To Litigate: Viacom, Google, And YouTube
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  • http://TopOfTheThread.com Top OfTheThread

    This is a tough situation. Depending upon the outcome, it may make it that only the big guys with deep pockets may be able to start up their own user generated content sites. The small guys may not be able to afford the technology and resources.

    • http://www.bestwebservers.eu/index_en.php Guest

      Nobody would sue you if you have little money or you have little company. They go for the big bucks!

  • http://www.youarewhatyoubeat.com Malcolm Lambe

    My money’s on Viacom winning this one. YouRube says it is doing all it can to stop infringement of copyright but we all know that is a load of bollocks. Complete bollocks. When their bot detects what they think is copyright breach and informs the Copyright Owner and then that video is taken down – they don’t do anything about all the other videos of the same subject or even the same clip. And there’s nothing to stop you uploading the same infringing content again. Its a complete farce. A good example is "Rendezvous" – the Claude Lelouch video of the so-called Ferrari driving at breakneck speeds through the streets of Paris. I don’t know how many times I’ve seen that one go up and down on both YouRube and Google Video. I just had a quick look at the first 6 pages of YouTube and counted 6 copies of "Rendezvous" – all robbing the owner of the Copyright, "Spiritline Films", of income from online sales from their site. Its the same scenario with movie and television content. You’d think with all the money that Google poured into YouTube they could afford to have a roomful of drones manually checking copyright infringement. And the law is based on "intent" isn’t it? The question that will be asked is "Has Google done enough to counter copyright infringement?" And the answer is a no-brainer. "No".

  • Priyantha

    The world is changing very fast and information moving across internet accelerates the process. These cases are really good to make people think about copyrights in a different perspective.

    The question "how far should we protect copyrights" is the question we should be asking today. Whether we should relax the protection in certain areas, such as educational material, etc. is debatable, but should be considered. On the other hand, the owners of a creation must be able to decide whether they are going to take the pirated copies down, which is possible.

    Also, if youtube start charging a fee for hosting materials violating copyrights, then that could reduce the violations. But it is a real challenging project, which will definitely going to be beneficial for everyone.

  • jim

    I have an idea. Google, shut down YouTube. Let the sue happy people do what they do best and suck all the air out of Viacom and put them in a position to be on the receiving end of a hostile take over. Once that is complete, then Google can then start up Youtube again. Companies like Viacom are used to being on the "screwer" end of deals. It’s time to let them feel what it’s like to be the "screw e".

  • http://www.myspace.com/michaux michaux

    if google loses big time, how could this effect those of us little guys who make our living based largely on our websites google placement?

  • GA. Pine

     

    As a writer, and owner of some of those copyrights they are talking about, I am very interested in the dialogue being addressed today. Since we are in the middle of creating the web rules (worldwide) for generations to come, we need to clairify these points right now.

    This is a whole new avenue to share the creativity of human beings, but should that be at the expense of those artists who originated a piece? Should we artists even bother copyrighting our work, because it can be stolen by the first passing browser anyway? Sure Viacom has brought up the subject, because they can afford a roomful of lawyers to tackle the issue, but what about us little guys who can’t afford to go after everyone who violates our ownership rights.

    The courts will need to become involved in clarifying quite a few things in the coming years, and this is as good a place to start as any!

  • Guest

    Google wins by law.  It’s the law, they are not the content provider, so they are not responsible, period.  It’s the era of the Internet.  Viacom needs to start suing the people who use their content on Youtube and scare the crap out of others.   I see that as their only way and still it won’t completely get rid of the problem. 

  • Guest

    popular content can often be copyright especially in the mid-range of the popularity stakes.

    And the tube still takes a profit marketing content delivery… so why shouldn’t they be liable, they server up the copy-content for a profit. Shouldn’t this be shared with the real owners of the content? Regardless of the original uploader?

    …hmmm

  • http://asylum-et.com/ Asylum

    This and claims like it are totaly bogus and evntualy will kill the internet since there will be nothing worth viewing on it. I do agree that copyright infringment should not be taken lightly but then again look it it from another prospective other than greed.

    Artist X comes out with an album. Some Youtube user makes a video collage with one of the songs. I decide I like it and buy the album. So what is wrong with that? You would think that big media would be more than happy that their content is making waves rather than just collecting dust. The same goes for video. So someone takes 3 minutes of one of their favorites shows and posts it. Great, who cares! It is only 3 of 45 minutes not to mention the quality sux tremendously.

    If it was not for sites like youtube just how many albums and such do you think would sell? Ill give you a hint. I am not buying unless I get a preview first. Maybe that is the issue that big media is so scared about. They are afraid that people will get a preview and decide not to buy since the media is garbage?

    One thing that should be considered the most is that the internet is only as profitable as its content. Without the content what is left?

  • http://justin-goldberg.blogspot.com/ Justin Goldberg

    Your article has only presented Viacom’s arguments.

     

    The only thing mentioned on google’s side is the video id technology.

    I believe, in my humble opinion, that mashups (in the artistic sense and not the buzzword sense), that google is fighting for the right to remix and reuse content to create unique and creative art, much like how many artists such as nine inch nails and the beastie boys are doing by releasing music under a creative commons or similar licenses. The argument extends beyond the world of the internet and people uploading from p2p, usenet, and irc, music videos which aren’t even shown anymore on music video channels at all or rarely.

     

  • http://www.hophunt.com Free PPC Traffic

    Youtube is like p2p in essense…

     You can share videos in Youtube that been uploaded by its users.

    However, Youtube does not encourage copyright infringement and it’s
    the users responsibility to uphold the law.

    I think Viacom demand is confusing… there may be a reason for greed
    for this matter (to get a small share of Google’s billions).

    Youtube makes the Internet Community happy by watching Interesting
    videos…

    Viacom should be careful on their claim and position so that it will not 
    upset the millions of Youtube users.

  • Philip

    Google would not permit posting of its intellectual property without its explicit consent.  The interenet is still in its Wild, Wild West stage, but Users need to be educated, and industry leaders need to educate them in the right way.  Google revenues depend on Users’ abuse of copyrights.  Essentially, Google is a "leach" company that depends on content that it can access.  Without that content, it’s dead in the water, because of its advertising revenue model.  With the recent French victory over eBay for assisting in the sale of pirated physical goods, an inroad has been made and a precident is being slowly set to hold content aggregators legally responsible for their actions or non-action.  Remove every bit of copyrighted material from YouTube and what do you have?  Not much.

  • http://www.siavash.com si

            I did a music video last month and someone put it up on Tube before I did. It got thousands of views and great feed back .. By the time I came back from my tour the video was up from at least 10 different people(mostly fans). The first person that has put it up of course is getting the most views and he is advertising some company on it. What was nice is that You tube gave me the choice. I can stop those sites to post my video or let it go. Today I made a decision. I can take my video out of the sites that are not my fans and make every one subscribe to me for that video. No one should be able to take my hard work and put some junk advertisement on it. True fans don’t. This my friends is the hole point and I hope the Viacom and the court would get it.

    Go Tube….
     

     

     

  • steven port

    How can anyone of any intelligence really call Facebook a social networking site. It’s an information station for anybody and everybody to find out everything and everything about the ‘sad’ sods who put themselves on the site. These same ‘saddos’ are probably the same ‘saddos’ who complain about it being too easy for insurance companies, goverments, political parties, junk mailers and the rest to get personal information about them….der…then they go put all that information about themselves on Facebook for anyone to view. They even put their ‘own’ names on.

    Now the same ‘saddos’ are being targeted by advertisers….those same ‘saddos’ who complain about ‘too much’ advertising on websites.

    A social networking site, my ass, it is a money machine pretending to be a social networking site.

    A wolf in sheeps clothing………..used by a load off ‘saddo sheep’ following one and other because it’s supposedly the in thing.

    God help us!!!!!

  • http://www.efabe.co.uk eFABE

    … but after reading the above comments, I have changed my mind.

    So I will leave it to the people who know a damn site more than I do about all this.

    David, as always, I love reading your articles.

  • http://www.londonminicabnetwork.com Fred

    Could be wrong, but  I do not think ads on Social Network Sites works. Personally, has a member of one, never click on any of the ads that appear on them. I do check up on what friends are up to and out. Ads? i don’t see them.

  • http://car2be.com/ Used Volkswagen

    Google’s announcement of work on tools to satisfy the media content industry’s demand for better policing of uploads led to the development and deployment of Video ID. Its features include taking a digital hash of each video upload.