Google To Viacom: Sorry, You're All Wrong

Posted by: Rob Hof on April 30, 2007

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.

Reader Comments

PJ at Ferodynamics

May 1, 2007 1:48 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.

Tom

May 1, 2007 2:59 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.

Ray Gordon

May 1, 2007 4:29 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.

Tommy

May 1, 2007 9:42 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?

Bob Gordon

May 1, 2007 9:46 AM

Ray Gordon's comment makes no sense.

Paul

May 1, 2007 11:16 AM

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

au

May 1, 2007 11:59 AM

Tommy nailed it

sunnata1

May 1, 2007 1:26 PM

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.

ProblemWithCaring

May 1, 2007 2:19 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.

Keith

May 1, 2007 2:22 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.""

au

May 1, 2007 4:04 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...

Malkyne

May 1, 2007 6:27 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.

elizabeth obisanya

July 6, 2008 7:23 AM

VIACOM V GOOGLE - HOW FUNNY IS THAT?
[A case of what goes around comes around]

Very!. Troys rich coming from Viacom[ yep you read it right I said Troys rich] seeing as they [Viacom ] also faced a $1billion lawsuit from a friend of mine [Troy Walker* ]that Created BOB SPONGEE which one could say Spongebob Square pants is a derivative if not out right copy of.
How many sponges can there be that talks and walks? Or check out the name even? What is in a name everything. I diverge …

What of course should happen is that Google should be made to give account for broadcasting on YOU TUBE ( whether indirectly or directly ) works that are stolen and not licenced to be up loaded and watched.

I mean if it was a t.v station it would not be allowed so why is it allowed on the internet?

Of course it is not good enough for websites such as YOU TUBE and MY SPACE to allow works to be uploaded without the necessary licences issued. They cannot say they had an exclusion notice attached to it as once the vid has been uploaded people access the space to watch the Video thereby increasing traffic for GOOGLE Or whomever.

Let me put it this way if it was ordinary theft, say person A goes to person Bs house with a hot (stolen) good and there is a bust. The onus in a court of law ( at least in the U.k) is on person B that person B was not aware of that good being in his house and also that they were not aware that it was a “ hot” good, so as to not be aiding and abetting. Person B cannot say well I issued a disclaimer so there fore I am o.k no especially as person B is benefiting from the hot item.

Providers such as YOU TUBE and myspace are well aware that those that do upload it for all to view and access do not have the licence.

If Viacom was doing it to pursue what we all know as Justice then they should pursue till they get from GOOGLE.

Clearly by some accounts negotiations to try and issue the license for Sponge bob in particular on the You tube space broke down and You tube allowed Sponge bob to be uploaded illegally on its space. and GOOG LE should be made to give account.

If that is what VIacom is after that is . If it is not they will go after the small man in the street that has no money and is no harm to them ( money did not change hands in the viewing of it) and let us face it since Spongebob was created for Children ( mainly) children will watch it on YOU Tube and go home and watch the DVDs that their parents buy for them as they also want to show their friends that they are not cheap but have copies of it at home.

At least the Judge allowed the IP ADDRESS to be released.

Funny how Sponge for hire was pulled from YOU TUBE during my friends trial and claim for infringement against Viacom.


Elizabeth Obisanya
CASHBACK paper or plastic
www.swordofthespirit.tv

p.s * TROY WALKER created BOB SPONGE BOB with a script called the UNEMPLOYED SPONGE waaaaay back in the eearly 90s , the dolls were marketed in the California regions[see http://en.wikipedia.org/wiki/Troy_Walker but hey.. who gives a hoot and a holla?It is only $1 Billion !

Elizabeth Obisanya

May 10, 2009 12:47 PM

Please note that my previous comment is withdrawn!

Elizabeth

Dude

September 29, 2009 11:39 AM

The issues of copyright protection cannot be understood by the masses because it is impossible for the masses to reject something that they benefit from.
The benefit is enjoyment of media product that was created for sale and then stolen to give out for free.

There's really only 3 types of people in the fight.

1. Those who create and go broke from theft.
2. Those who steal to attract surfers before changing to a paid model.
3. Those who create nothing and don't care if it's stolen and have some kind of jealous hatred for creators that wishes them broke because "they don't really deserve anything for that".

So number 1 loses everything; number 2
is a jerk; and last but not least,
number three is a lazy, no-talent, couch pig that if ever he/she created
something worth $5, would become the biggest anti-piracy nut in the world while ignoring the hypocrisy of their earlier actions.

People who think Viacom is owed nothing or very little are simply naive pigs who haven't gotten their "15 minutes" yet, but when feeding time arrives for them they will slaughter all in their way to gobble up the hog slop while waving a copyright suit in their fat, lazy, greasy-thieving hands.

HAHA!

But hey, I'm in America with a 300 year long history of benefiting off the free work of others. It was called slavery.
So there is no wonder that the land is still full of lazy pigs that need others to create/work for their benefit.

America : full of fat pigs who think musicians, actors, singers etc... are their new personal slaves bound by god to deliver entertainment for free.

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Bloomberg Businessweek writers Peter Burrows, Cliff Edwards, Olga Kharif, Aaron Ricadela, and Douglas MacMillan, dig behind the headlines to analyze what’s really happening throughout the world of technology. Tech Beat covers everything from tech bellwethers like Apple, Google, and Intel and emerging new leaders such as Facebook to new technologies, trends, and controversies.

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