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Google To Viacom: Sorry, You're All Wrong


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April 30, 2007

Google To Viacom: Sorry, You're All Wrong

Rob Hof

This won't come as a surprise to anyone, but today Google filed an answer to Viacom's copyright lawsuit against Google and its YouTube video sharing service. As one person at Google put it, the answer to the $1 billion suit, filed in mid-March, basically says "Deny, deny, deny." One by one, Google refutes all of Viacom's significant claims of "massive" copyright infringement by YouTube.

"Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act," the answer reads in part. "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."

The company also demands a jury trial, and it has hired the Chicago firm Bartlit Beck Herman Palenchar & Scott, which Google characterized as ace trial lawyers, in addition the Google's frequent counsel, Wilson Sonsini Goodrich & Rosati. Many people think a settlement is likely at some point. But given that no settlement negotiations are underway currently, according to Michael Kwun, Google's managing counsel for litigation, Google apparently can use some good trial lawyers.

In a hastily called news conference with reporters already attending a Web personalization presentation at the Googleplex in Mountain View, Kwun said Google believes the lawsuit should never have been filed. Among a list of a dozen defenses, Kwun said the key one is the Safe Harbor provision of the 1998 Digital Millennium Copyright Act, which to some legal minds provides a defense for firms that quickly take down copyrighted material when it's requested by copyright holders. What's more, Kwun said, "We actually got well above and beyond what the law tells us to do," such as marking copyrighted files that have been taken down once, so they're immediately taken down the next time they're uploaded, and a 10-minute limit on uploaded videos, which prevents full TV episodes from even getting posted.

Kwun took a jab at Viacom and other studios, too. "There's a certain irony to the situation (with the DMCA)," he said. "These are the very people that helped to design the law. Suddenly, they don't want to live with the other end of the deal."

Although CEO Eric Schmidt and other Google executives have characterized the Viacom lawsuit as a form of negotiating through the courts, Kwun said Google's "more than happy to litigate. I don't view that as a business negotiation."

Kwun shed no light on timing to fulfill Schmidt's recent promise to come out with more powerful tools for copyright owners to get pirated videos off YouTube.

Unless a content deal leads to Viacom dropping the suit, it could take awhile for the court case to get underway. Kwun said the next move is a joint conference on July 27 with Judge Louis L. Stanton in the New York Southern District Court, where the initial schedule for the case will be set.

08:00 PM

Google, YouTube, video

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? Google vs. Viacom: Grab the Popcorn from AUBlog

So it looks like I was right about this last year - Google wants to fight the battle for the video frontier. Google has responded to Viacom?? 1B dollar lawsuit - they??e not interested in a settlement - they want a jury trial.

This should b... [Read More]

Tracked on May 1, 2007 09:46 AM

I'm not a lawyer, but I see a hole. YouTube is not like a Geocities where each user that signs up gets an autonomous account. YouTube is not really a lot of little independent websites run by lots of webmasters. The format of YouTube is structured by Google only, one big website.

Conversely, nobody expects a web host to monitor every account continuously--there's such a diverse range of activities. With YouTube, all you do is upload videos to a master site, with the expectation that Google will present the content however it wishes.

Google profits from all kinds of horrible stuff in their index, and they get away with it by blaming an unscrupulous (non-human) algorithm. But you can't hide behind your algorithmic curtain forever--there are consequences.

Posted by: PJ at Ferodynamics at May 1, 2007 01:48 AM

The fact of the matter is that Viacom and other companies such as NBC have benefited greatly from the exposure that YouTube has provided for its intellectual property. And much of the property in question wasn't available in any format, so it's true value was undeveloped, garnering no exposure and no equity at all for Viacom.

For instance, one of the ways I use YouTube is to watch decades old MTV videos. Prior to YouTube, there wasn't really any venue that provided this type of archived material. Being a huge fan of the band "Journey", but having lost many of my original cassettes, I decided to go out and buy their greatest hits CD after watching a few MTV videos on YouTube.

These media conglomerates are also hypocrites. I've seen numerous items posted to directly to YouTube by the networks themselves - like for instance the uncensored version of Justin Timberlake's "Dick in the Box" episode from SNL, which had millions of views. They understand the power of YouTube when it suits their purpose; they're just not happy about Google's negotiating stance. Thus, they are trying to use the courts to force Google into a better deal.

Posted by: Tom at May 1, 2007 02:59 AM

If the DMCA protects websites like Google, then the only "content" you're going to see online is that which people want "stolen," such as advertising, SPAM, etc.

The DMCA is not supposed to apply to companies that profit from infringement, but Google forgets that in its pleading (how convenient).

At http://www.cybersheet.com/google-infringe.html I have a webpage that shows screenshots of Google Ads appearing on a piracy portal website.

Posted by: Ray Gordon at May 1, 2007 04:29 AM

In this matter, Google is the good guy & Viacom should just concentrate less on lawsuits whose costs they will just pass on to their customers. What's the big deal anyway? We're paying Viacom to watch Youtube, right?

Posted by: Tommy at May 1, 2007 09:42 AM

Ray Gordon's comment makes no sense.

Posted by: Bob Gordon at May 1, 2007 09:46 AM

Only the lawyers will benefit from this. They will make millions while the average consumer gets screwed through less access and higher prices.

Posted by: Paul at May 1, 2007 11:16 AM

Tommy nailed it

Posted by: au at May 1, 2007 11:59 AM

People seem to be missing Viacom's point.

The 'safe harbor' provision places an undue burden on Viacom. Why must Viacom spend so much time (money) to police their content?

Google profits when others don't actively protect their intellectual property.

I suggest fines be levied on Google. For every copyrighted video posted - Google pays the owner $100 and must remove the video within 24 hrs of notice.

Posted by: sunnata1 at May 1, 2007 01:26 PM

@ sunnata1 :

If Viacom is such a victim, then their network websites and blogs, should also stop using copyrighted materials. VH1's Best Week Ever, E news, The Soup, the Newspaper and magazine blog's ALL link to Google video and youTube. The cross-promotion this creates - not to mention the Viacom stars made and fed by Internet exposure, such as Jon stewart, Steven Colbert, etc. - means that Viacom isn't serious at all about these accusations. It's a power play to bring about hardball negotiations.

Summer Redstone is old, crotchety and passed his time.

Posted by: ProblemWithCaring at May 1, 2007 02:19 PM

How is Google supposed to know if material posted is copyrighted unless someone tells them the material is copyrighted. It's like having to monitor a blog for the inclusion of a copyrighted quote in a comment.

Here's an example below where I paste copyrighted material into this comment:

""Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act," the answer reads in part. "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.""

Posted by: Keith at May 1, 2007 02:22 PM

sunnata1:

Ever owned a business? I'm guessing not. Why should it a business' (such as google) responsibility to police someone else's items (such as viacom) that they consider proprietary? And you suggest that Google should be fined because viacom can't wipe their own ____?

Under that logic it'd be too risky and expensive for anyone to go into business. Examples:

We'd have all mechanics across the country responsible for auto owners voiding their warranties because they changed their own oil.

We'd have auto parts stores liable because they sold them the oil.

We'd have suppliers reimbursing stores because the store can't control theft.

We'd have the manufacturers of urinal mints (ok cakes) responsible for somebody catching Hep-C because since they're in the bathroom supply industry they should have found a way to prevent that.

Ok that last one was a stretch, but you get the idea. Basically, stop expecting someone else to clean up after you and to take responsibility for you because you didn't have the foresight.

And if you're an enterprisey business, realize that you're not above the global rule that business is change, and you either adapt and stay ahead or you go out of business.

Just take a dose of reality every now and then. Most people have to do that on a daily basis...

Posted by: au at May 1, 2007 04:04 PM

sunnata1, I'm not missing Viacom's point. Their point is... pointless. The "Safe Harbor" provision is the law, and the only way the courts can justifiably overturn it is if it is unconstitutional. In what way is it unconstitutional?

Unless Viacom can prove that A.) Google is not a "common carrier" under the provisions of the DMCA, or B.) Google in some way did not follow the take-down rules, as defined in the DMCA, Viacom does not have a case. Viacom claims that Google does not qualify for the "Safe Harbor" provision, but past court precedent has granted "Safe Harbor" to such sites as eBay and Amazon.com, and that would tend to suggest that Google qualifies, as well. So, they would have to prove B -- but it is widely known by the public that Google very promptly did a mass take-down of Viacom's material, at their request, as required by the DMCA. So, where's the case?

But to get back to your point about Safe Harbor: Without the Safe Harbor provision, the Internet gets litigated out of existence. The burden on the copyright holders is nothing compared to the burden that would be placed on the carriers, without it. Nobody has an encyclopedic knowledge of what is under copyright, and what isn't, or whether somebody posting material is, in fact, the copyright holder. How the heck is any site supposed to filter out the entire spectrum of all copyrighted information ever created -- except for the bits that their posters actually own? That's a completely absurd expectation, any way you cut it.

Posted by: Malkyne at May 1, 2007 06:27 PM


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