OK, here’s the lawsuit that Viacom filed against YouTube this morning and I’m extremely disappointed. For once I thought that a copyright holder might actually tackle the weaknesses in the DMCA and raise for court review whether the DMCA is applicable anymore or whether it was ever intended to apply to online video sites.
But, Viacom’s complaint does nothing of the sort. It’s a bundle of fuzzy allegations that, ironically, barely cites any laws, much less laws that YouTube might be violating. It’s replete with citations from press articles about YouTube and how enriched the site’s founders have become and how a giant company, Google, hopes to continue ripping off copyright holders. It’s a puffy and fluffy lawsuit.
YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America’s creative industries, and profiting from the illegal conduct of others as well.
Viacom argues that YouTube has knowingly infringed on others’ copyrights and has chosen to not take reasonable precautions to prevent infringement. Moreover, the company cites press articles that allege that Google won’t take those precautions unless it has a deal with the copryight holder.
There is nothing in this complaint at all about the DMCA and whether YouTube is violating that law, which protects websites from infringement liability if the sites comply with rights holders’ take-down requests. Which is ironic and a sloppy oversight indeed because Viacom itself relies on the DMCA as protection against infringement lawsuits across a dozen or so video sharing sites that it owns.
Take, for example, Viacom-owned Atom Entertainment, which runs a video sharing site. AtomFilms has a special section for users entitled notice of infringement, which cites the DMCA.
Atom Entertainment, Inc. will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). Pursuant to DMCA, written notification of claimed copyright infringement must be submitted to the following Designated Agent for this site.
Does Atom Entertainment fail to actively and repeatedly sweep its uploaded user submissions for copyrighted content, an allegation that Viacom levels against YouTube in its complaint? I would bet a lot of money that Atom doesn’t take the proactive steps to prevent infringement that Viacom demands of YouTube. Why? Because the law doesn’t require it.
What about iFilm, another Viacom-owned video sharing site, which also relies on the take-down provisions of the DMCA? Are any iFilm employees aware of copyrighted content that is uploaded to the site, content that may stay in iFilm’s archives until a take-down notice appears, which places an impossible burden on copyright holders? Viacom says that YouTube relies on this impossible burden to get rich.
If YouTube is violating the law, so is Viacom. Or is it just a question of degree? YouTube is phenomenally successful while Atom Entertainment and iFilm are not. Can a judge enjoin YouTube from the same behavior he or she would permit for Viacom?
In any event, Viacom had a good shot at raising some serious issues regarding intellectual property and the state of the law. What it submitted instead is simply a PR piece puffed up into a lawsuit.
Update: Public Knowledge comments on this suit, noting that unauthorized use of copyrighted material is not always illegal use of the material (fair use, and so forth), while pointing to the DMCA as YouTube’s protection.
Without commenting on the specific allegations involved, we note that simply because material is “unauthorized” does not make its use illegal. There are limitations to copyright law, known as fair use, that do not require the copyright owner’s permission before use of a work. Many of the users of YouTube who have posted short clips of main-stream media’s works have done so using their fair use rights, for reasons of criticism, comment, education, and news reporting.
We are confident YouTube and Google will continue to take appropriate actions in accordance with the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA). By a previous request of Viacom, YouTube has already removed some 100,000 clips.
Cynthia Brumfield at 10:42 AM|Comments(10)
Drama 2.0 (sorry for the delay in this response but your comment got caught in the spam comment filter),
I realize that Viacom has no obligation to preemptively address Google's defense, but Google's defense is so solid (YouTube isn't violating the DMCA and the DMCA is the relevant copyright law here) that you would think that Viacom might have sought to head things off at the pass.
As I see it, Viacom makes the (relatively vague) allegations of legal violations, Google responds with "we've abided by the law," which you have to admit they have. The law doesn't require Google to proactively scan for copyrighted content -- it only requires Google to respond to take-down notices, which it has. If Google knows about the infringing material, that's another matter, but proving Google's knowledge is going to be very, very difficult.
Where does that leave Viacom? Where does that leave the court? Either Viacom has to say the DMCA is faulty or the court does for the situation to change.
Posted by: cynthia brumfield at March 21, 2007 1:45 AM
Thank you, Public Knowledge, for finally floating the fair use angle. I don't know if it will fly but it definitely deserves consideration.
Posted by: pwb at March 17, 2007 4:29 PM
Nothing holds back the establishment of solid, legal video offerings, except the advocacy of short-sighted business models, IMnsHO.
Posted by: Terence at March 15, 2007 5:56 AM
One point of clarifacation. AtomFilms.com is not a user generated video site, but a curated thingy that gives filmmakers real distribution and pays them for their films.
AddictingClips.com (also under the AtomEntertainment umbrella) is probably the site you mean.
Posted by: Lulumonkey at March 14, 2007 4:51 PM
Sue Tube-It's On Like Donkey Kong!--Dr Evil (Sumner) vs God!
Copy That. Whose Crazier---- Viacom or Tom Cruise?
Are you kidding? $1,000,000,000---A Billion Dollars. That Austin Powers thing.There's only one thing missing from this Suetube---the law. Unauthorized is not illegal. It will never make it to court. Google employees (the service provider) didn't put Via's content there; YouTube's users did.Viacom is trying, Mono e Mono, to turn the TV(BoobTube) industry into the music industry. Think Fair Use, 1984: a digital re-run of The Sony BetaMax Case.
Young Companies Innovate.Old Geezers Litigate
Sumner Redstone, the same guy who fired Tom Cruise, is jumping off the Empire State Building and hoping that the fall doesn't kill him. This ain't no Napster. This is UGC, user generated content, and a great way to alienate further Via's CBS , MTV, Infinity, Simon & Schuster, Blockbuster and Paramount viewing and listening audience.
"Google is god, and Dr. Viacommie Evil is suing him. Yea Baby!" says Ed Reif, Hotel Anyware's pilot . Jihad's fun---not. In the next three years, every media company in the world will have a distribution deal with Google, except Viacom.
Maybe Cruise's lawyer, Burt Fields, who told the New York Times that Redstone's comments about firing Cruise were "disgusting" and suggesting that Redstone, who is 83, had "lost it completely, or he's been given breathtakingly bad advice." (Maybe by Mark-"Only a moron would buy youtube"- Cubin) applies here too.
The Daily Show with Jon Stewart and Nickelodeon’s “SpongeBob SquarePants on Youtube don't steal revenue. They drive traffic to Viacom shows. YouTube is not monetizing the traffic in question. Viacom is. Goggle should counter sue!
Viacom shouldn't be negotiating with Google, they should negotiate with users, because ultimately that's how the matter of whether or not they have a future will be decided. Right now Viacom is on "suicide watch".
Hotel Anyware's prediction: No money will be exchanged. This is nothing more than a PR stunt for their roll out of Choosing Plan B----Joost, a peer to peer bandwidth hog. Viacom wants headlines--and is getting them.
Joost , a videosharing site formally known as the Venice Project, to share their content. Joost's strategy is not to run clips but full episodes with high-quality resolution--"real TV online." It is not hard to understand why this, combined with a guaranteed revenue share and a commitment to partners, is appealing to those in the BoobTube business.
Why would anyone want to watch real TV online. Isn't that like the internet phone?
Eat the press---Anything you read on that is just spin. There is no Copyright just CopyWrong.
Posted by: ER at March 14, 2007 10:36 AM
Cynthia: I came across this blog posting and felt compelled to post. I think calling Viacom's lawsuit "fluffy" is an uninformed statement. I've made quite a few posts analyzing the issues over at TechCrunch:
http://www.techcrunch.com/2007/03/13/5217/
Viacom is represented by the same law firm that won MGM a Supreme Court decision over filesharing service Grokster. They are one of the country's top law firms and if you read the DMCA and Viacom's complaint, you'll notice that the claims that Viacom has made very specifically target the criteria that make a service provider eligible for the Safe Harbor provisions of the DMCA. There is no need for the initial complaint to pre-emptively attack Google's certain DMCA defense, nor is this lawsuit the venue to question the DMCA (Congress passed the law and the courts can only interpret and uphold it). As I note in one of my posts on TechCrunch (#78), all of Viacom's claims in the complaint are designed to show how YouTube does not qualify for the Safe Harbor provisions. Google will respond with its DMCA defense and if it goes to trial, the court will have to evaluate whether Viacom's claims indeed leave YouTube ineligible for Safe Harbor protection. Viacom's law firm has not overlooked anything.
Posted by: Drama 2.0 at March 14, 2007 2:01 AM
Rob, you may be right that Viacom knows what it is doing. But how many times have we seen huge companies do stupid things that run counter to their own interests (HP anyone? Microsoft anyone?), even when they have had the best legal advice available?
I guess I'm arguing the law here, when it's seemingly irrelevant to Viacom's objectives.
Posted by: Cynthia Brumfield at March 13, 2007 4:29 PM
Surely it's at least a little - well, silly - to claim that Viacom has made "a sloppy oversight" in its suit. We can safely assume that they actually had a lawyer - or 20 or 30 extremely skilled attorneys, more likely, from one of the country's top firms - prepare the suit and that they know a thing or two about how to do this; because, for example, they've been getting ready since October 9th of last year?
Posted by: Rob Hyndman at March 13, 2007 4:19 PM
Kimberly, that's my point precisely. The law currently permits what Google and Viacom, and everybody else is doing by virtue of the safe-harbor provisions in the DMCA. Either everybody is safe or the law is bad.
This is a lawsuit that Viacom filed in federal court. By my way of thinking, Viacom should be arguing the law in a lawsuit and not using its attorneys as PR flacks.
The relevant law is the DMCA and whether YouTube violated that law. Viacom itself relies on the DMCA and if the behavior currently permitted under that statute is found to be unlawful, then Viacom's behavior would, arguably, also be found to be "unlawful."
YouTube is not let off the hook simply because Viacom itself engages in the same activity. But Viacom isn't filing this lawsuit in good faith either.
Posted by: Cynthia Brumfield at March 13, 2007 1:47 PM
If Viacom is committing the same crimes on iFilm, that doesn't invalidate the claim that a crime has been comitted against them.
If Viacom is violating copyright, they should get sued as well. This piracy has been going on for too long on the web, and it's holding back the establishment of solid, legal video offerings. I am excited about tv-over-the-web (also known as cable bypass programming) and want to se it proliferate. As long as YouTube, or anyone else, is flaunting copyright on the web, content owners will remain wary. When rights have been established, and rule of law is in order, all the content owners will want to be a part of it.
We all benefit from this lawsuit. Sure, YouTube may take a hit, but there will be hundreds of legal YouTubes down the road.
- Kimberly
Posted by: Kimberly at March 13, 2007 11:32 AM
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