In its lawsuit against Google and its YouTube subsidiary which came to light yesterday, Viacom not only alleges that YouTube is guilty of massive copyright infringement by allowing its users to post unauthorized content without restrictions or filtering, but the corporation goes one step further: It accuses YouTube of actually reproducing and posting some unauthorized content itself.
"YouTube itself publicly performs the infringing videos on the YouTube site and other websites," Viacom's lawsuit proclaims. "Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site." The lawsuit goes on to contend that access to copyright-infringing content is a cornerstone of YouTube's and Google's business plan for the site, and may be promoting that access in order to drive traffic. The claim mirrors the successful allegation of MGM and other studios in their pursuit of P2P service Grokster, from which they emerged victorious after proving to the US Supreme Court that access to illegal content was part of Grokster's promotions and its business plan.
But the reproduction allegation goes one step further than the Grokster case: It directly implies that YouTube's own people are behind the reproduction of illegal content. Later, the suit acknowledges that users are responsible for the initial posting, effectively stopping Viacom short of accusing YouTube of uploading the content in the first place. But after users upload videos, YouTube reproduces them in order that they may be downloaded, and that reproduction in and of itself, Viacom contends, infringes upon its rights.
In an uncharacteristic manner for Google, it has only been responding to this lawsuit in dribs and drabs. The company late yesterday issued statements to selected news sources, including this: "We are confident that YouTube has respected the legal rights of copyright holders and believe the courts will agree. YouTube is great for users and offers real opportunities to rights holders: the opportunity to interact with users; to promote their content to a young and growing audience; and to tap into the online advertising market. We will certainly not let this suit become a distraction to the continuing growth and strong performance of YouTube and its ability to attract more users, more traffic and build a stronger community."
To other sources, Google issued this statement: "YouTube has become even more popular since we took down Viacom's material. We think that's a testament to the draw of the user-generated content on YouTube. We've been very successful forging thousands of successful partnerships with content owners -- like Warner Music, Sony/BMG, Universal Music, BBC, and the NBA -- interested in finding new audiences for their programming."
For some organizations, YouTube spokespersons have peppered these remarks with additional comments; and some other organizations appear to have received permutations of these statements, or else didn't cite them in their original form. For Reuters, however, Google associate general counsel Alexander Macgillivray did make a longer statement, in so doing referencing a clause of the Digital Millennium Copyright Act which protects services from liability when their technology is being used by others for illegal purposes, without the knowledge or participation of the services' proprietors. "Here there is a law which is specifically designed to give Web hosts such as us, or... bloggers or people that provide photo-album hosting online...the 'safe harbor' we need in order to be able to do hosting online," Macgillivray told Reuters, the "safe harbor" phrase referring to Section 512 of the DMCA.
Subsection (a) of Section 512 is perhaps most important. It holds a party harmless from liability if its service was used to transfer unauthorized material from a person who doesn't work at the service, using an automatic process that human beings aren't controlling at the service end, and that's made available to others automatically and intermediately without a replication process taking place in-between, and without the content changed in between. But Subsection (b) is important too, since it holds a service harmless if all this exchange of illegal content takes place without the service provider's direct involvement or knowledge.
Viacom's attorneys obviously read the DMCA. Their allegation that YouTube replicates the content on the way to availability, using a process that human beings are directly involved with, with the full knowledge of YouTube's proprietors, highlights three key exemptions in Section 512 for which Viacom contends YouTube doesn't qualify. But Google's attorneys are also citing Section 512 in their own defense, saying it protects companies who learn about copyright infringements on their services only after they happen, once they take immediate steps to remedy the problem. Among such steps, Google contends, is YouTube's invitation for rights holders to report violations to YouTube in writing.
Even then, Viacom's suit contends, the YouTube policy asks for specific URLs of infringing videos; but once access to the video through the infringing URL is blocked, conceivably that same video or copies of that same video may still be accessed through other URLs. YouTube supporters have taken up the slack today, arguing vehemently on CNBC, CNN, and elsewhere that media companies such as Viacom should simply come to terms with the fact that their content is going to be shared in bits and pieces on services such as YouTube; and if YouTube were to "go down," something else would take its place because the need to share is just that strong.
As Washington attorney Doug Mataconis writes for his blog The Liberty Papers this morning, possibly the worst thing that could happen to Viacom now is if it eventually wins this lawsuit. "Viacom is mostly likely on the right side of the law, but much like the music companies that brought down Google, they may end up being on the wrong side of public opinion," states Mataconis. "YouTube is immensely popular, and it seems clear that neither Viacom nor any other television network suffers any real financial harm if, say, a three-minute clip from last week's The Colbert Report is posted on YouTube. If anything, they get a promotional bonus from it."
But late yesterday, Dallas Mavericks owner and HDNet chairman Mark Cuban posted his opinion to his personal blog, clearly in support of Viacom, and arguing against the notion that user-based uploads of clips are effective promotions for watching the full show. "Some of those who are so self absorbed in net culture and have no idea how the real world works," Cuban writes, "might think that all of this leads to more viewing and consumption. Maybe it does...There are definitely situations where it could help a show gain viewers and increased sales of DVDs. All of which has nothing to do with whether Viacom or any content provider should let users upload video.
"I have a secret for you," he continues. "It's easy for end users to upload video to YouTube and Google Video. It's easier for the content owner to do the same thing... If Viacom wants to put up snippets, scenes, mashups, mockups, quarter, half or full episodes of anything they own, there is nothing to stop them. It's their choice. If they are smart, they will fill every Gootube Server they can reach with their content in a manner that drives viewers back to Viacom properties. They will experiment with every option, including those that engage and involve their viewers, to see what works and what doesn't work and what makes them the most money. Why not? Google is paying for all the bandwidth...There is absolutely no value to a media company in letting users actually upload video."
Original Press Release: Reuters (Previously posted)
Also, View: Google Responds to Viacom's $1 Billion Lawsuit & Viacom v. YouTube: Will Web 2.0 Survive?