Viacom's Suit Won't Snuff Out YouTube

The media giant's lawsuit may remind many of previous copyright infringement battles. But with Google named in the suit, this one will be different

by Catherine Holahan

When Viacom sued Google for massive copyright infringement Mar. 13, there was an element of history repeating itself. In this instance it was Sumner Redstone's Viacom and a cadre of lawyers going after a massively popular service—in this case Google's YouTube—that lets customers share their favorite video clips. Observers couldn't help but draw parallels to the Recording Industry Association of America (RIAA) and its legal battle against an earlier generation of entertainment-sharing services, Napster and Grokster, used by millions to share their own beloved form of entertainment, digital music.

Napster eventually shut down, bankrupted by legal bills and multimillion-dollar settlements with copyright owners, and Grokster also went offline after the U.S. Supreme Court ruled it could be held liable for copyright infringements committed by its users (see BusinessWeek.com, 6/28/05, "A Supreme Slap at Grokster & Co."). But for anyone fretting that YouTube may be headed for anything resembling the same fate as the peer-to-peer file-sharing services, the message is simple: Google is no Napster.

Too Legit

For starters, Google (GOOG) is standing on legal ground that's far more solid than its predecessors, legal experts say. Viacom says 160,000 clips of its shows and other content have been unlawfully uploaded to YouTube. Like the RIAA, Viacom (VIA) maintains that a service is responsible for copyright violations committed by its users. In the lawsuit, filed in U.S. District Court in New York, Viacom argues that YouTube is responsible because its business is designed around the illegal activity. "YouTube has built an infringement-driven business by exploiting the popularity of Plaintiff's copyrighted works (and the works of other copyright owners) to draw millions of users to its website," reads the suit.

This argument is similar to the one the RIAA made—that the peer-to-peer networks knew illegal files were driving their traffic. Their business proposition relied on that traffic so they were encouraging, or at least turning a blind eye to, that illegal activity and were, thus, liable.

However, unlike the file-sharing sites, a significant portion of YouTube's content is legitimate—home videos, shorts made by would-be TV stars, blogs, and copyrighted content deliberately uploaded by the owners for publicity purposes. Thus, it would be more difficult to prove that YouTube's business model is truly built around the presence of copyrighted clips. "When you go to YouTube your takeaway is that YouTube is really a place for you, the individual, to publish your own videos," says Gregory Rutchik, founding lawyer for the Arts & Technology Law group, a San Francisco-based copyright and trademark litigation firm.

Significant Resources

More important, Google can argue that it has been following the letter of the law, namely provisions of the 1998 Digital Millennium Copyright Act, that shield sites from unintended copyright infringement—provided that the copyrighted clips are removed once they are notified of their existence. "People who follow the law are allowed to stay in business even if they are not paying content owners," maintains Fred von Lohmann, a staff attorney with the Electronic Frontier Foundation, a nonprofit law firm specializing in cases involving violations of Internet freedoms.

YouTube regularly removes material in response to DMCA "take-down" requests. Case in point: In February, Google removed 100,000 clips cited by Viacom as infringing on its copyright (see BusinessWeek.com, 2/2/07, "Viacom's High-Stakes Duel with Google"). "YouTube has become even more popular since we took down Viacom's material," Google General Counsel Kent Walker said in a statement.