YouTube: Viacom secretly posted its videos even as they sued us for not taking down Viacom videos

In a scorching post on the company's blog, YouTube Chief Counsel Zahavah Levine accuses Viacom of going to great lengths to secretly upload videos to YouTube in order to take advantage of its promotional value even as they were suing YouTube, arguing that YouTube should be able to tell the difference between Viacom videos that were uploaded by actual infringers as opposed to Viacom employees and agents being paid to pretend to be infringers.

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
Given Viacom's own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

Broadcast Yourself (via /.)

(Image: Kara Swisher and Philippe Dauman, a Creative Commons Attribution photo from Joi's photostream)

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I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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NZheretic

Viacom’s actions are just more proof that, in terms of end profits, obscurity has always been a greater problem than any (supposed copyright) violation has ever been.
Anonymous

i’m not surprised, are you?
Diricia

I think youtube should ban all Viacom videos from their site. They can use crowd sourcing from the youtube community to look up and report all Viacom content and simply remove it.

Viacom have misused youtube and should have their rights revoked.
- teapot
  
  Viacom have misused youtube and should have their rights revoked.
  
  I think a more apropriate punishment for wasting so much court time and money over lies should be that Viacom is not allowed to sue anyone for anything for 5 years. That would put a quick end to these stupid lawyerwars.
  
  You are scumbags Viacom!! I mean, do you have no shame?! Bringing the good name of Kinkos down like that and everything…
  - orwellian
    
    I love that idea, being barred from suing. Maybe we could ration lawsuits, give a person one or two a year (while making small claims court immune). People could donate spare lawsuits to groups they support (EFF, Greenpeace, NRA) and the fact that a organization was sitting on 50,000 spare lawsuits could be used to get corporations to comply/back off.
ScottTFrazer

Yes, but Viacom has also shown that the YouTube founders were knowingly uploading infringing content and having discussions about how removing such content would result in a 75-80% dropoff in traffic to their site.

http://arstechnica.com/tech-policy/news/2010/03/smoking-guns-dark-secrets-spilled-in-youtube-viacom-filings.ars

Looks like everyones hands were dirty in this one.
- cuvtixo
  
  Do you really think so? The “incriminating” email evidence includes: “Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.”
  So… Youtube execs debate merits of aggressively pursuing infringers (which they are not legally required to do) While Viacom execs conspired to use the U.S. justice system to litigate against Youtube while practicing the same infringement violations they are suing about. I don’t see those as equivalent at all! I hope the judge throws this case out, because Viacom seems to be have gone well past hypocrisy into (nearly?)criminal behavior.
  - Brother Phil
    
    “In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.”
    
    They (allegedly) uploaded content that would be infringing if not uploaded by the rights owner, and then sued for the presence of material that they themselves had uploaded.
    
    I think that would be entrapment, malicious prosecution, perjury…
    
    Definitely criminal.
    
    Like the bent cop who says “Oh dear. (smash) Your front light’s out.”
Anonymous

Let the pie throwing commence, they waited three long years for this moment holding each others pie, now is the time for some pecan to fly!
Anonymous

A pox on both their houses. Screw ‘em both and the horses they rode in on. I’m expatriating to Flickr.
Super Nate

The punishment should fit the crime. Anything that Viacom sued youtube for that they posted should automatically become public domain.
bbbaldie

It would be so nice to see one of these sleazy copyright-law-abusers abased. I don’t care how guilty Youtube was, FRY VIACOM!!!!!
dubyel

Assuming this information is correct, Viacom’s suit should be dismissed with prejudice. They should be required to pay all fees and costs incurred by YouTube, and they should be subjected to crushing sanctions for frivolous litigation and abuse of the court system. If the lawyers were aware of Viacom’s actions while pursuing this action, they should also be subject to sanctions and forfeit all fees earned from the case.
Avram / Moderator

I think we’ve got a new definition of chutzpah.
Prathap Rajamani

But it would not be possible to “firmly” say that all the youtube accounts were used under viacom influence.

- Prathap Rajamani
Ed Minchau

It’s called entrapment, and the ease with which entrapment can occur and impossibility of self-policing it all should spell the end of the DMCA.
Anonymous

douche bag corporations.
Anonymous

While I’d love to the judge slap Viacom with a huuuuge fine for their behavior here, I would rather see the judge work out a decision that sets the stage for changing the very broken world of copyright law.
Anonymous

I’m going to assume this is true about torrents of Paramount movies also.
ripplepoppy

Although I’ve lived without cable TV at home for 12 years, I still find reasons to hate Viacom. Funny, how that far-reaching to-the-stars corporate ethic still gets ya. BoingBoing gives me a platform to say this: HEY VIACOM, FUCK YOU! FUCK YOU FOR TRYING TO RUIN OUR INTERNET. and fuck off.
w000000000000000000000000000000000w I’m impressed. I hope one day I’m a corporation and I can sue anybody for things I DID MYSELF. Hey, I bought this coffee. Now I’m going to sue you for serving me what I asked for BECAUSE I CAN AND NO ONE WILL PENALIZE OR STOP ME.
[RAGE]
[Well, rage aside, I figure Rome fell and Babylon will too. I know how to grow food, do you? Let's dance toward oblivion. We don't have a choice.]
UncaScrooge

If I understand Mr. Doctorow correctly, I believe the standard penalty for this behavior is complete loss of internet access for the Viacom Corp.
- littlerunninggag
  
  Heh, would three strikes laws apply to Viacom? After all, corporations are people.
  
  Maybe, as a content producer, they can lead the way by voluntarily doing so?
toyg

Note that this is a *lawyer* speaking. Lawyers don’t usually employ such blunt language when defending, for obvious tactical reasons; when they do, it usually means they think the case is going to be a slam-dunk. In this case, it also means that Google have clear proof of the alleged behaviour, which is very bad news for Viacom.