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.Posted by Cynthia Brumfield at 10:42 AM | Print | Comments (10)
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.
This short item appeared in the Wall Street Journal (behind a firewall but short Reuters piece is here) a few minutes ago claiming that Viacom has sued YouTube in a copyright infringement lawsuit filed in U.S. District Court for the Southern District of New York.
The entertainment giant, which publicly broke from the Google-owned video service in February following failed negotiations, is seeking $1 billion in damages as well as an injunction against YouTube.
“YouTube is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others’ creative works in order to enrich itself and its corporate parent Google,” Viacom said in a press release. “Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws.”
I just need more information here — on what grounds is Viacom suing YouTube? Didn’t Viacom already request, per the Digital Millenium Copyright Act, that YouTube pull down 100,000 of its videos? Didn’t YouTube comply? Isn’t that the end of the case?
Or is Viacom arguing that the DMCA never meant to apply to online “service providers” such as Google but instead is limited to ISPs, as some have argued?
Stay tuned.
Posted by Cynthia Brumfield at 9:28 AM | Print | Comments (0)
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