April 30, 2007 5:00 PM PDT

Google denies Viacom copyright charges

MOUNTAIN VIEW, Calif.--Google responded to Viacom's $1 billion copyright lawsuit on Monday, arguing that it has not infringed on the rights of the media company and that the lawsuit threatens the viability of its popular YouTube video-sharing Web site as well as others like it.

"We think YouTube offers the world's leading platform for entertainment, education and free speech," Michael Kwun, managing counsel for litigation at Google, said in a briefing with reporters at Google's headquarters here. "We're not going to let this lawsuit distract us."

In an official response (PDF) filed with U.S. District Court in the Southern District of New York, Google said: "By seeking to make carriers and hosting providers liable for Internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression."

Handling Google's defense in the lawsuit are Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif., and Bartlit Beck Herman Palenchar & Scott in Chicago, which represented President Bush in his appeal before the U.S. Supreme Court that stopped the recount of ballots in Florida from the 2000 presidential election. That decision handed the victory to Bush instead of former Vice President Al Gore.

YouTube, which Google acquired last year for $1.65 billion in stock, is protected from charges of copyright violation under the Hosting Safe Harbor of the 1998 Digital Millennium Copyright Act, Kwun said. Under the provision, service providers that host other people's content are "safe" from liability if they quickly remove material a content owner alleges infringes on their copyright.

"There is a certain irony to the lawsuit. Viacom and others...were at the table when the DMCA was adopted. These are the very people who helped design this law," Kwun said. "They are getting material taken down quickly and yet, suddenly, they don't want to live with the other end of the deal."

Viacom denied Monday that YouTube qualifies for protection under the DMCA, arguing that the company has prior knowledge of infringing material and is also profiting from pirated works.

"It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it," Viacom said in a statement. "It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube."

YouTube provides copyright protection tools to help copyright owners find uploaded clips that may infringe on the content creator's rights, Google said. The tools can prevent the reloading of copies of the same video clip after it has been removed from YouTube, the filing said.

Google offers "best of class tools" for protecting copyright owners, primarily for identifying content on the site that copyright owners have complained about, Kwun said. Google can't identify allegedly infringing content and block it or prevent it from being posted, he said.

"We already have in place a digital hash blocking system" that identifies the digital "fingerprint" of content that has been removed for copyright reasons, he said. In addition, YouTube prevents the uploading of any video longer than 10 minutes, a function designed to prevent pirating of full-length TV shows, movies and other copyrighted content, he said.

"We're trying to make it as simple as possible for content owners to be able to find their content on our system and (to) decide what they want to do about that," said Kwun. "We're always going to need their help in looking at the material."

Google Chief Executive Eric Schmidt said at the National Broadcasters Association conference this spring that the company was nearly ready to turn on a tool called "Claim Your Content" that will automatically identify copyright material so that it can be removed.

Comparisons to peer-to-peer file sharing networks Napster and Grokster, which found themselves defendants in copyright lawsuits and lost, are not valid, Kwun said. In those cases, "neither made any attempt to quality for the Hosting Safe Harbor (protection) of the DMCA," he said.

Viacom sued Google for copyright infringement in mid-March. The companies have not had formal settlement talks, he said.

A case management conference is scheduled for July 27 and the judge may set the initial case schedule at that time, Kwun said.

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DMCA- Who's right is it anyway?
The intent of the DMCA was to stop software and other digital pirating on an en-masse scale, not punish the individual for making back-ups of their own hard-drives or onto their digital music device. The "key-feature" or selling point behind DMCA was the "Fair-Use" clause, which has become a joke.

Example- A client bought a legitimate DVD from a supplier (Amazon) and wanted to use a section for a non-commercial briefing on "teamwork," under the "Fair Use" clause in the DMCA. Note: The motion picture in question is over 20 years old. When he tried to copy the specific outtake, the Digital Rights Management DRM program kicked-in and prevented the copying of the section necessary for the briefing. I mentioned that you need to call the studio, get a license and they'd send you the CODEC (hopefully). I told him I'd run the gauntlet, just to see what's involved. Between being transferred around like a tennis ball on a tennis court at Wimbledon, I finally got to the right person and they already had their hand out for money. I told them that this was a non-commercial brief; no money was involved and pointed me to a website to get the license. Whoopee!!! Now, how does the client get to use the section necessary and bypass the DRM lawfully? The answer is, "You can't, and we can only give permission." So I asked, "How does he use it under the 'Fair Use' clause in the DMCA?" The response was, "He can't."

So, my client bought a DVD that contained a movie but was not informed, did not buy the DRM program or enter into a contract to pay for a DRM program. Better yet, he can get a license, but he can't use it. Therefore, is the studio violating the DMCA by preventing the usage of a lawfully purchased DVD, for terms expressly specified in the DMCA?

The other concern that needs to be addressed is that a lot of material would go by the wayside if it wasn't for sites like, "YouTube." I was researching something about a composer to verify that he was credited with some work and apparently wasn't, which also doesn't appear on IMDB.com. This is why YouTube.com can be a valuable medium of information and should be considered as such, at the time of trial. Does the public benefit outweigh the DMCA when it comes to "Fair Use" and other issues?

Maybe Viacom, other studios, RIAA, MPAA, and ASCAP will wake-up to the fact that it is cheaper to charge for a dongle and an annual license at a reasonable fee, than to chase down all of the people who wish to use "Fair Use" clause in the DMCA.

Steven Moshlak
Posted by computerlegalexperts.com (23 comments )
Reply Link Flag
Some legal expurt... NOT!
The Story wasnt about the rights of the individual who has a DVD and wants to copy it.

The issue at hand is holding the ISP or in this case Google liable if they don't respond quickly enough or this case, having a realistic response mechanism to DMCA complaints.

Person A captures a segment from Jon Stewart's show.
Posts it to UTube. Viacom complains, video removed. No sooner has it been removed, a new copy comes up.
Loop until Jon Stewart no longer funny.... (You get the idea.)

Now Viacom gets no money from UTube. Google does in terms of ad revenue generated as views watch.

Viacom is correct in suing Google.
Google attempts to hide behind its "compliance" in that it removes the offending material as fast as they can. Only the "populace" puts it back up just as fast.
That isn't going to fly because Google could also ban the poster by id, ip address , etc so that if they violate the DCMA once, they can never post material again.
Posted by dargon19888 (412 comments )
Link Flag
Isn't the purpose of a copyright to protect you from someone else making a profit off of your work? We should definitely be able to share and collaborate all we want -- with anything we want -- as fair use -- which is another issue altogether, beyond the scope of this article. But, the point is that as soon as someone starts to make a profit from an unauthorized distribution, that money is now illegally obtained. And it is with this point that Google will lose their argument.

If you ask me, Viacom is just being a big baby about the whole Internet -- maybe because the Internet is a direct assault on their top-down spoon-feeding model for distributing their content. What they need to do is wake up and realize that there's a whole lot more money to be made off the Internet than your traditional one-way video (TV) services. Unfortunately for the rest of us in the meantime, it is their content and they do get to legally say who gets to make how much money from it.

As for Google, they'll win eventually -- maybe not this battle -- but everyone knows the Internet is the future. Google needs to leverage their power as one of the keepers of the Internet against Viacom (you cannot tell me that neutrally-generated search results can't do this...) to make them realize their losses in refusing to collaborate with Google, and consequently the Internet realm.
Posted by phantomsoul (50 comments )
Reply Link Flag
Yes, but there's more
The point of copyright is that the owner of a protected work gets
to decide what happens to that work, whether that happens to
be a money-making use or not. My photos cannot be used on
your web page unless you have my permission, whether or not
you're making money by using them. They are mine. A recording
of my song is my recording, and if you decide to use it in your
restaurant as background music then I get a royalty. That is the
law. If you decide to upload my music video, or a clip from my
talk show, or a scene from my movie to YouTube without my
permission that is illegal. Everybody does this every day but it
doesn't make it OK. And that is not fair use. A lot of people don't
like it but that's the law and it's a good law. Too many people try
to benefit from artists' works.
Posted by Lucky Lou (88 comments )
Link Flag
For sure the Internet is the future, but that doesn't mean it will not change in big ways. I think most of the problems on today's Internet, from piracy to spam, are caused by anonymity and the absence of accountability that allows. Piracy can be stopped the same way we stop people from breaking into our houses--with law enforcement. Would you visit a city where everyone walked around with a ski-mask over their head?
Posted by timoteo21 (17 comments )
Link Flag
Think about what you're saying...
You're essentially saying that the future is the internet and that the internet represents the theft of ideas and creative works.

As the other poster pointed out, if I post a picture on my website, you do not have the right to copy it and put it on your website. You do not have the right to deep link to it. (If you do, I have the right to block you...)

Even under fair use, you do not have the right to take a clip from a viacom show and post it to UTube just because you thought it was funny.

Note that if your video clip were part of a greater collective, you may have a possible argument of fair use. But that is not the case here.
Posted by dargon19888 (412 comments )
Link Flag
This is about preventing competition
Viacom's and others' material are a minute part of what's on YouTube. And everything on YouTube is copyrighted - everything is automatically subject to copyright. However there are those who want to make us believe that out private stuff that we post is "less copyrighted" than theirs, so they deserve special treatment, and we should be limited in posting our "uncopyrighted" stuff because someone might sneak in their "copyrighted" stuff.

Their real aim is to limit the growing competition that free or low cost publication methods like YouTube enables. If their aim was to differentiate their "copyrighted" stuff from our "uncopyrighted" stuff, they would act to try to change copyright laws so only registered works out subject to copyright, not everything. Right now they just want to stop YouTube from allowing posting of copyrighted work, and that's exactly what they mean: everything is copyrighted and they want YouTube to post nothing.

Everuthing in YouTube and anywhere on the web is copyrighted. Most of it is there because that's what the copyright owners wanted. If YouTube did not allow the posting of this copyrighted material they would not respect the wishes of the copyright owners who wanted to post their copyrighted work. The minute minority of works published against their owners' will that is represented by Viacom is no reason to deny the rights of most copyright owners who do not wish to charge for the use of their work. In a world where everything is subject to copyright and only a very small percentage of works actually represent revenue to the copyright owner, while most copyright owners either don't care or prefer to let their work be available to the public, the correct procedure is the established procedure that although distribution of copyrighted content is infringement of copyright, no action is taken unless the copyright owner complains. Copyright is automatic, but infringement is not acted upon automatically. That's the way copyright owners' rights are balanced against the public's rights, and if Viacom, the RIAA, MPAA or whoever wants it to be different they should act to change the laws in a way that does not treat works whose owners specifically registered for protection in the same way it treats works whose copyright owner is not interested in doing anything, or to create methods by which such works they want protected can be differentiated from the majority of copyrighted works whose owner is not actively acting against infringement.
Posted by hadaso (468 comments )
Reply Link Flag
and they called it progress
The "Internet" has evolved in much the same way as as the old city park. A place where people were free to meet and have picnics, play baseball, and socialize. But as the value of that real estate increased, big business and developers moved in, bought it out and put in a parking lot and began to charge admission. As a result, the people could no longer have picnics, or play baseball. So they moved on to another park, and suddenly the developers cried 'foul'. They were no longer making the profit they had anticipated, and set about buying up all of the free parks in an effort to regain their perceived "losses".
Then Google put in a new free park, and the big developers once again cried foul. Only this time, they couldn't 'buy out' the park. So they set about trying to use the courts to 'sue them out of it'.
OK, so Google is making a profit, but they aren't trying to do it by taking control of the peoples lives. They put up a free park, and they make their profit by putting ads along the back fence of the ball field and selling hot dogs and popcorn, but the people can still meet and play ball and have picnics. If the competition is afraid that someone might be using their ball or bat, maybe they should put up their own park.
Copyright infringement is a daily occurrence. Every day, millions of people are quoting jokes they heard the night before on their favorite late-night talk show, or saw on a movie they watched. They aren't giving a one hour performance and charging admission, just passing along information that they feel is interesting. This is called "word -of-mouth advertising" and big business should be glad of it. One of the worlds largest corporations is now starting to lose a portion of its market share to a company whose entire advertising strategy has been solely word-of-mouth. If someone is stealing bits your copyrighted material and then re-presenting it with the intent of interesting others in it, recognize it for what it really is, a compliment, and free advertising! If they steal the whole thing and then charge money to see it, that's copyright infringement, and they should be punished.
I'd really hate to have to spend a portion of my life in jail for quoting a joke that I heard in a Viacom production.
Posted by Wiz Wildstar (15 comments )
Reply Link Flag

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