Friday, March 16, 2007

Chronicle of a suit foretold

There have been plenty of reports and commentary on Viacom v YouTube and Google, the mother of all copyright infringement suits at a whooping $1 billion USD. I didn't want to comment on it until I got the chance to read the complaint. Google is being sued for pretty much the full monty. We have direct infringement of the exclusive rights to public performance, public display and reproduction of owned content. We have inducement (in accordance to MGM v Grokster), and if that was not enough, we also have contributory and vicarious infringement. In paragraph 30, the plaintiffs state:

"Defendants encourage individuals to upload videos to the YouTube site, where YouTube makes them available for immediate viewing by members of the public free of charge. Although YouTube touts itself as a service for sharing home videos, the well-known reality of YouTube’s business is far different. YouTube has filled its library with entire episodes and movies and significant segments of popular copyrighted programming from Plaintiffs and other copyright owners, that neither YouTube nor the users who submit the works are licensed to use in this manner. Because YouTube users contribute pirated copyrighted works to YouTube by the thousands, including those owned by Plaintiffs, the videos “deliver[ed]” by YouTube include a vast unauthorized collection of Plaintiffs’ copyrighted audiovisual works."
What every pundit in the mainstream media and the blogosphere has been talking about is, just how good is Viacom's case? At first glance, the case seems pretty strong. After all, everybody knows that YouTube offers infringing materials. However, when one looks further, the case begins to evaporate. I had written already about this topic when YouTube got sued before by a content owner in that occasion I was not convinced of the strength of the case, and I am not convinced now. The problem for content owners is that the Grokster inducement test would not apply to YOuTube as it does not advertise or promote infringement in any way. When users sign-up for a YouTube account, they agree on click-wrap terms of use that clearly leave all responsibility of ownership with the person submitting the video. The relevant clause reads:
"In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage YouTube or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. YouTube does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with User Submissions. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. YouTube reserves the right to remove Content and User Submissions without prior notice. YouTube will also terminate a User's access to its Website, if they are determined to be a repeat infringer. "
This would seem to be enough to protect YouTube and Google from intermediary liability. After all, the DMCA provides Safe Harbor exceptions for intermediary services that allows clear copyright policies and inform content providers of clear take-down procedures. Looking at the Safe Harbor requirements, it seems clear that YouTube is protected by such. This opinion seems to be shared by others.

Why is Viacom doing this is there is a clear chance that they will lose? It could be the clash between old and new media. It could be an attempt to buy into the market through aggressive litigation. It could truly be misplaced trust in misguided and archaic copyright policies. What seems certain is that Viacom will become a name to inspire hatred amongst geekdom. Expect some hacktivists to threaten its assets.

On a side note, I find it rather funny that Mia Garlick managed to join Google on the same week that they get sued for $1 billion USD. Wish you had stayed at Creative Commons Mia?

On another side note, I'm aware that I have broken my New Year's resolution not to use snowclones.

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