Did Viacom find smoking gun in YouTube case?
Lawyers working on a $1 billion copyright lawsuit filed by Viacom against Google's YouTube may have uncovered evidence that employees of the video site were among those who uploaded unauthorized content to YouTube.
In addition, internal YouTube e-mails indicate that YouTube managers knew and discussed the existence of unauthorized content on the site with employees but chose not to remove the material, three sources with knowledge of the case told CNET.
The e-mails, according to the sources who asked for anonymity because of the ongoing litigation, surfaced during an exchange of information between the two sides of the legal dispute. They are one of the cornerstones of Viacom's case, as well as that of a separate class action lawsuit filed against Google and YouTube by a group of content owners, the sources said. The group includes a European soccer league and a music-publishing company.
Such evidence could be a major blow to YouTube's defense. If managers possessed "actual knowledge" of copyright infringement on the site and did not quickly remove it, the company may not be entitled to protection under the Digital Millennium Copyright Act's safe-harbor provision, according to legal experts.
"The facts you described could very well be the smoking gun that puts a hole through Google's case," Roger Goff, an entertainment attorney not involved in the case, told CNET News. "(If the facts are accurate), Google will have a very difficult time claiming that (its staff members) don't undermine its protection."
The provision, established in 1998, was designed to give online services a measure of protection from liability for infringing materials uploaded to their sites--as long as they meet a certain criteria, including:
- (A)(i) The services don't have actual knowledge that the material, or an activity using the material on the system or network, is infringing.
- (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
- (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.
The entertainment industry has been skeptical about YouTube's claims that it did not have knowledge of the once-plentiful amounts of infringing content available on the site. Clips from popular TV shows, feature films, or sports events would often bubble up in YouTube's Most Viewed or Most Discussed sections.
It should be noted that the correspondence described by sources likely make up only a sliver of the material exchanged, and there's no way to know the full spectrum of internal discussions regarding copyright at YouTube.
"The characterizations of the supposed evidence, made in violation of a court order, are wrong, misleading, or lack important context and notably come on the heels of a series of significant setbacks for the plaintiffs," Aaron Zamost, a YouTube spokesman, said Monday evening. "The evidence will show that we go above and beyond our legal obligations to protect the rights of content owners."
Any questions about what YouTube employees may or may not have uploaded to YouTube must also be asked of Viacom's employees. Court documents show that on August 25, Viacom agreed to turn over records that shed light on "Viacom's decisions to upload or authorize the uploading of videos to YouTube" and on the company's policies "for allowing videos to remain on YouTube for marketing promotional or other business reasons."
This suggests that Viacom employees also uploaded clips to the site. A company representative declined to comment.
Viacom has long acknowledged that it was one of the first to promote shows online by posting clips to YouTube. But the conglomerate has also said the uploading of clips does not undermine or diminish its copyright claim.
YouTube's counterargument has always been, how is the company supposed to know the difference between pirated and legally uploaded clips when companies like Viacom are among those uploading material?
Google acquired YouTube for $1.65 billion in October 2006, a price tag that set the bar for Web 2.0 acquisitions. Long before that, many in the film and television industries claimed that YouTube was building a big audience by enabling people to pirate professionally produced television shows and films.
Since Viacom first filed its suit in March 2007, accusing Google and YouTube of encouraging users to commit intellectual-property theft, many online services and entertainment companies have closely watched the case because of its broad implications. What the YouTube-Viacom suit could help settle, to some degree, is who is responsible for policing and initiating the removal of pirated materials--the copyright owners or the operators of online services?
But should the case ever go to trial, the outcome may be less significant than legal experts once predicted. While the lawsuit has meandered in the courts for 30 months, other legal battles featuring companies with less marquee value have already gone a long way toward determining Web services' key issues surrounding copyright.
Two weeks ago, U.S. District Judge A. Howard Matz issued a decision saying video site Veoh was not responsible for copyright violations committed by users because it was entitled to protection under the DMCA. Universal Music Group, the world's largest record company, had filed a copyright suit against Veoh that experts said was very similar to the YouTube-Viacom case. Matz's decision appeared to set an important precedent that would help YouTube and Google argue against Viacom, the parent company of MTV Networks and Paramount Pictures.
"The issue is whether Veoh takes appropriate steps to deal with copyright infringement," Matz wrote. He concluded that it had.
YouTube supporters cheered Matz's ruling, believing that it would apply to YouTube's situation because the Web's largest video site had long established and enforced a "takedown policy," whereby the company removed infringing content, once notified by a copyright owner. And later, the video site took steps not required by the DMCA by establishing a state-of-the-art filtering process that helps block material from being uploaded to the site.
But attorneys for Viacom and members of the class action are expected to argue that YouTube's filtering system is a gaping hole in YouTube's defense. One of the major complaints that content owners had about YouTube was that before the company launched its filtering technology, they were forced to file takedown notices for every instance of infringement. In some cases, an entertainment company could remove a popular clip, only to see someone else upload it again seconds later.
Lawyers for Viacom and the class action group are expected to argue that if YouTube was notified that a specific clip was pirated, and had the power to prevent copies from going up but did not act to remove them, the company violated the DMCA.
The plaintiffs use as evidence a paraphrased statement from Chad Hurley, YouTube's CEO, and one of its three co-founders, which appeared in The New York Times in February 2007, the sources said.
"(Hurley) said the company was still working on its filtering technology," the Times wrote. "He said it had agreed to use it to identify and possibly remove copyrighted material from Warner Music, and it would discuss a similar arrangement with Viacom as part of a broader deal."
A Viacom representative said at the time, "They are saying we will only protect your content if you do a deal with us--if not, we will steal it."
The YouTube-Viacom suit is unlikely to go to trial before next year. Certainly, with YouTube wooing entertainment companies as it attempts to battle Hulu, Netflix, Crackle, iTunes, and other digital-video outlets, there exists the possibility that YouTube and Viacom will come to some kind of settlement.
A settlement might be anticlimatic, but could be the best for all concerned.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
Someone please push the big shiny red button that says' Launch'. pretty please
It is like putting certain cold medication behind the counter, it doesn't slow down meth factories, but it gives the appearance of doing something about the problem without having to make an effort.
I can see copyright laws getting tougher and more draconian. I can't see Washington bowing to public demand. America is a democracy, so long as you're not talking about IPR. In which case US laws are tougher than those of most other countries on Earth.
That said, what's interesting here is that P2P companies, who produce software that creates networks, but do not store content, are constantly harangued.
a vast, overwhelming majority of content on youtube is not illegal content.
viacom has stolen more money than google ever has (though, technically thats not pertinent i suppose)
i knew there were kids in my college that smoked pot. so did the administration. they still couldn't stop it, though. same situation here. just because you know of something doesn't mean you can act upon it. knee-jerk reactions are often counterproductive and generally imposed by folks who didn't think things through, such as viacom and their ilk, and by people who are silly enough to agree with them.
How many internal Viacom decisions were actually influenced by studying the popularity of their short clips on youtube? Have stars been signed, or unknown stars been given a chance because of their popularity on youtube?
Why is it ok for Viacom to approach unknown stars who then gained fame via youtube without contacting youtube first and using youtube as the agent? I hope google realizes that in this case, the best defense is a strong offense.
It is also disconcerting that a copyright owner can remove content already aired on television and not allow anyone else to use it either. Programming of all kinds has a historical aspect to it and to pretend something never aired after it did air is playing with fire as well.
If YouTube knew about illegal content on it's service and failed to do anything about it, they are in the wrong. They had a legal duty to act and failed to do so. They should be held accountable for that. It's like saying "We know we have people that are selling pot and that's illegal, but since we are profiting from it, then we won't do anything about it."
Honestly, I don't know where people get this idea because something aired on TV or in movie theaters, they are entitled to get it for free. You wouldn't walk into Walmart and demand they give you a television for free? Why should content be any different?
Assuming the version I saw was the one that aired on Conan's show, to not allow others to see it after it aired on television is a form of book burning, it's a way of pretending something never happened, when it did happen. I don't know if that is a good precedence to set.
It's called "Lawful Stupid."
The idea that unjust laws need to be obeyed just because they're the law. Well, our founding fathers didn't feel that way. They felt that if laws were unjust, they should be fought. Why don't you take a history lesson?
Culture cannot be sold or owned. Since the article had nothing to do with drugs, I won't even try to explain the racism that led to marijuana prohibition.
As an aside the DMCA is abused by the big players stomping all over fair use rights, and the right of first sale.
"Culture cannot be sold or owned" - We're talking about videos on YouTube, not the English language. If companies want to charge for access to their content that's they're right. People that think it's wrong should just ignore that content and the company. What's so compelling about their content that they have to make it free? Why shouldn't people be able to charge for access to something they have created?
"Culture refers to the cumulative deposit of knowledge, experience, beliefs, values, attitudes, meanings, hierarchies, religion, notions of time, roles, spatial relations, concepts of the universe, and material objects and possessions acquired by a group of people in the course of generations through individual and group striving. "
"Culture is the systems of knowledge shared by a relatively large group of people."
"Culture is communication, communication is culture."
"Culture consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by symbols, constituting the distinctive achievement of human groups, including their embodiments in artifacts; the essential core of culture consists of traditional ideas and especially their attached values; culture systems may, on the one hand, be considered as products of action, on the other hand, as conditioning influences upon further action. "
Now, in reading any of those definitions, it becomes clear that culture is not limited to alphabet and language. Culture is a sum of the knowledge of the people who share it, which includes the beliefs, stories, ideals, and legends of a culture. Since what we see, as well as any ideas and information learned or gained from it irrevocably become a part of our culture, it would stand to reason that the media that imparted those ideals are a part of that culture as well. In the same way that the movements of herd animals, weather patterns, and the stories told by village elders dictated our culture centuries ago, the world around us dictates our culture now. And there is no denying that the media is a large part of where people get information about that world today.
"You hippy chip eating freaks on CNet need to realize that not everything is "free" and some companies are interested in actually making profit to give you poor saps more materials to rip them off with."
First of all, how did Google profit from having copyrighted material on their servers (cost to Google), streamed to millions of users (cost to Google), at no cost with very few ads that barely generate enough revenue to make a dent in the costs? Youtube profited from it by virtue of being sold to Google (yet, you fail to mention Youtube at all), but how is Google making a profit? You're on a soapbox based on faulty assumptions.
So when they become profitable, then they're breaking the law? You could argue that Viacom is losing revenue.
So is your position that every song, video, photo, etc created automatically becomes part of our culture and we therefore have every right to view it for free? That charging money for that content and limiting access to it is wrong? That laws that protect people that create content are unjust?
I'll admit that the laws are probably too broad and that they are exploited by media companies with deep pockets. But I also think there's a place for laws that allow the people that create content to make some money for their work.
They *are* making money. Metric Buttloads of it. Viacom reported $173 million dollars NET income in the fourth quarter of 2008 alone. It's not like they're barely getting by.
And it's not my position. It's the definition of the word.
Once they air something on television or release it on DVD, it's out there. It's assimilated into our culture. That's not my position, it's the definition of the word. And under that definition, it belongs to the people as much as it belongs to them. Obviously, there's no problem with charging for DVDs or charging a television show for a public airing that they profit from. But youtube isn't posting these videos, they're just hosting space. The people who are actually posting these 10 minute clips aren't making any money. Viacom is still making plenty of money. So the only problem here is greed.
Something like "Hey, I work as a Janitor at Viacom and an exec left his computer on so I downloaded a movie he had that's about to be released, here you go Youtube".
It's gets fuzzy fast after that. Thats why the much abused takedown notice.
2. Uploading and sharing music clips is ADVERTISING. If I were not directed to certain clips, I would not have been inspired to scour the planet for one particular disc.
3. Are Google going to employ 100,000 people to watch every video as it's uploaded? Oh, looks like somone with no taste is uploading a copy of "Oops, I did it again, I groaned the same song", I'll delete it. When 10 other people are still uploading it without someone available to check. Or, hang on, this is a music clip... <delete>... Oops that was Arctic Monkeys uploading their OWN material.
It's the same as trying to police porn. People can't keep up with the traffic--and a computer cannot discern a porn image from a good photo of someone's navel.
I suppose it depends on how far up it goes, and what level a Youtube manager is actually on. If they are a manager on the same level of a retail manager, they don't have much authority. If these managers are technically executives, I guess that would mean more.
You can do lots of checks and balances to ensure ownership, but soon it would look like a Federal Agency and the paperwork process that it enforces of endless , reports, mailings and lots of costs to check on each and every video uploaded onto there - and it would cost the poster around $50 to $100 a year to verify that even a single item of material uploaded is under their control - forever (plus inflation). Even if they automated it like the yearly domain name checks - but it would require a valid non PO box mailing address and a signed returned mailing back to Google so that if people lie they can be charged with a Federal fraud / interstate commerce / racketerring set of crimes for uploading copyrighted material. Course then Google could charge $100 a year per person to verify material and make even more $$.
Umm, sounds like a good new source of revenue . . . so as to comply with the lawyers who always sue them.
But you're right with your first point: the content owner must initiate the takedown by complaining to the content provider or the provider doesn't have to do anything.
now on the music side, with music videos, etc, Viacom and WMG are definitely crossing the line. if someone bought their music, they should have the right to make a music video and upload it. it's free advertising for viacom's music, and anybody who wants to download music illegally has many more options that are easier than youtube. if you're actually making a profit off of that video, however, it's a whole new ball game. still, Viacom and WMG are both ignoring the fair use law. speaking legally, Viacom and WMG are both doing wrong and right, LEGALLY. however, speaking from a moral standpoint, both are almost completely wrong in the music category. i bet even the singers of the music are in a disagreement with the companies. youtube is in the right here, and i don't blame them for uploading "copyrighted" material, depending on what it is.
It's free advertisement. It's not like people are gathering around their monitors late at night with a bowl of popcorn and watching a crappy, 480x360 pixel, 10 minute clip of Friends.
- by Big_G_Man October 11, 2009 2:37 AM PDT
- Our legal/tort system in our country is embarassing. People suing for hundreds of millions of dollars for coffee burns. Hell, just say you're merely insulted by something sparks multi-million dollar lawsuits now.
- Like this Reply to this comment
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(41 Comments)It's time for tort reform and a full legal system overhaul but we know that will never happen. Embarassing.