YouTube And Viacom: Viacom Refuses to Accept the Loss

    October 18, 2011

Apparently, one of the main rules of corporate level lawsuits is if you at first don’t get your way, try, try again until you find a judge that agrees with your constant complaining. Just ask Viacom and YouTube, or, well, just Viacom if you want to be specific, because YouTube is not the catalyst for bringing this story back into the public’s eye.

In case you’ve forgotten, when YouTube started its skyrocket ascent, Viacom was displeased with their content being available — for free — on YouTube’s servers, and so, they filed suit to have their content removed. That is an understandable, if not archaic position, one that becomes even more obtuse when you consider YouTube does indeed have a sufficient advertising model in place.

Because, let’s face it, Viacom’s position is all about getting paid when people view their content.

Digression aside, in 2010, a judge ruled that YouTube was given “safe harbor” protection, which essentially means as long as YouTube removes the offending content, it’s not YouTube’s fault if one of their users is responsible for uploading it, which makes perfect sense in the rational world. Unfortunately, that’s not the world Viacom resides in. No, being a corporate juggernaut, Viacom’s concern is for one thing and one thing only: profit.

Because of that, Viacom is working their asses off in an effort to find an appeals judge who agrees with them, and so, here we go again with the appeals process, one that says, “please, judge, make YouTube liable so we can have some of their money.” A snippet from details Viacom’s position quite nicely:

What do Viacom and the other plaintiffs want?

Viacom wants the panel to declare that the judge made an error when he stated that the safe harbor protection applies to YouTube. According to lawyers from Jenner & Block, YouTube forfeited its right to the safe harbor because it did not make an honest effort to stop the clips from being uploaded and instead focused on growing its online video business at the expense of content owners.

Viacom is also hoping that the influential Second Circuit will provide a precedent that curtails the scope of safe harbors in general. It believes that the 1998 law has become too expansive…

Apparently, Viacom doesn’t know, or doesn’t care about the amount of content that’s uploaded to YouTube on daily basis. Or maybe Viacom thinks YouTube should be capable of seamlessly inspecting every aspect of the 48 hours worth of video that’s uploaded on a minute-by-minute basis, instead of reacting to it after a complaint has been filed.

Or, maybe Viacom just wants some of that YouTube money.

It’s funny, YouTube is a perfectly acceptable platform for Viacom to take advantage of when they release movies trailers, nor do they seem to mind when Internet properties like ClevverTV exploit Viacom properties for pageviews, like so:

The reason I used both of those trailers is because they both belong to Paramount Pictures, one of Viacom’s stronger properties. However, both of these trailers are featured on ClevverTV’s YouTube channel, meaning they get the page views and not Viacom or Paramount.

For what it’s worth, Clevver is a property that aims to keep teens hip and informed, and unless they are owned by Viacom, a distinct possibility, but it’s not indicated anywhere on Clevver’s about pages, Viacom’s stance appears hypocritical.

Apparently, it’s fine to promote their products in the form of trailers and television previews, just don’t upload video from properties Viacom makes money from. It’s also OK if the Clevver brand establishes its popularity via Viacom-owned trailers and other promotional content, however, if they upload a non-promotional clip from MTV’s Teen Wolf, then Viacom wants YouTube to be liable.

Does that make even make sense? To Viacom’s legal team, apparently so. Is it YouTube’s fault if these videos exist, even though no one has apparently filed the appropriate infringement notice?

Perhaps Viacom should be more concerned with policing their properties instead of relying on others to do it for them. If they filed the proper infringement paperwork, it’s safe to say YouTube would remove these offending clips, but instead of doing that, Viacom is once again going the litigious route.