Viacom v Internet: round one to Internet

Google's won the first round of the enormous lawsuit Viacom brought against it. Viacom is suing Google for $1 billion for not having copyright lawyers inspect all the videos that get uploaded to YouTube before they're made live (they're also asking that Google eliminate private videos because these movies -- often of personal moments in YouTubers' lives -- can't be inspected by Viacom's copyright enforcers).

The lawsuit has been a circus. Filings in the case reveal that Viacom paid dozens of marketing companies to clandestinely upload its videos to YouTube (sometimes "roughing them up" to make them look like pirate-chic leaks). Viacom uploaded so much of its content to YouTube that it actually lost track of which videos were "really" pirated, and which ones it had put there, and sent legal threats to Google over videos it had placed itself.

Other filings reveal profanity-laced email exchanges between different Viacom execs debating who will get to run YouTube when Viacom destroys it with lawsuits, and execs who express their desire to sue YouTube because they can't afford to buy the company and can't replicate its success on their own.

On Wednesday, U.S. District Judge Louis Stanton ruled that YouTube was protected from liability for copyright infringement by the 1998 Digital Millennium Copyright Act (DMCA). The DMCA has a "safe harbor" provision that exempts service providers from copyright liability if they expeditiously remove material on notice that it is infringing. Viacom's unique interpretation of this statute held that online service providers should review all material before it went live. If they're right, you can kiss every message-board, Twitter-feed, photo-hosting service, and blogging platform goodbye -- even if it was worth someone's time to pay a lawyer $500/hour to look at Twitter and approve tweets before they went live, there just aren't enough lawyers in the universe to scratch the surface of these surfaces. For example, YouTube alone gets over 29 hours' worth of video per minute.

Viacom has vowed to appeal.

In dismissing the lawsuit before a trial, Stanton noted that Viacom had spent several months accumulating about 100,000 videos violating its copyright and then sent a mass takedown notice on Feb. 2, 2007. By the next business day, Stanton said, YouTube had removed virtually all of them.

Stanton said there's no dispute that "when YouTube was given the (takedown) notices, it removed the material."

Calling Stanton's reasoning "fundamentally flawed," Viacom said it was looking forward to challenging the decision in appeals court.

Judge sides with Google in $1B Viacom lawsuit (Thanks, Mike P!)

(Image: Viacom, a Creative Commons Attribution Non-Commercial Share-Alike (2.0) image from mag3737's photostream -- used with permission)


    1. I agree. Can’t we run Viacom out of town with a mob. Why don;t we get to govern ourselves. I don;t see a whole lot of the general populace upset about youtube. Screw these guys… lets boycot.

  1. aren’t blog posts supposed to have too many links to further information instead of too few, or none? I’d like to see something about

    – “they’re also asking that Google eliminate private videos”

    – “Viacom execs debating who will get to run YouTube when Viacom destroys it with lawsuits”

    the list of links at the bottom don’t address those very interesting topics, as far as I can tell.

    1. I love it. You know your case is absolute shit when the judge tells you to fuck off and dismisses before you even get to the trial.

      What I really want to see is Viacom face criminal penalties for erroneous DMCA take downs. It is pretty clearly a bullshit take down when you file it against stuff that you freaking uploaded yourself.

      aren’t blog posts supposed to have too many links to further information instead of too few, or none? I’d like to see something about

      Dude… at the end of the article there is a small encyclopedia of previous articles on this topic which have the information you seek. Just glance at the titles.

  2. Let’s look at it from the bright side.

    29 hours of content upload per minute would require 29 x 60 copyright lawyers working round the clock. Assuming they can cram 4 hours of accual work into an 8 hour work day (the rest of the time probably going to continous psyche evaluations as nobody can manage that amount of YouTube without going mad…). That leaves us with 29 x 60 x 3 x 2 x 7 / 5 = 14616 copyright lawyers busy, looking mostly at people making grainy videos of them selves complaining about other’s grainy videos. That’s 14616 less lawyers bugging the rest of us! The amount of money that goes into their system might even satisfy the lawyer part of the copyright lobby making big content stand alone. And, just maybe, one or two of the poor basterds might stumble on enough hight quality YouTube to see the light and defect (the rest will soon capitulate out of survival instinct).


    1. “14616 less lawyers bugging the rest of us!”

      I like it!. Could we start with Viacom’s lawyers first?

      ‘The first thing we do, let’s kill all the lawyers.’
      ‘Small things make base men proud.’

  3. In general I try to avoid making use of anything a company such as this or any of it’s subsidiaries produces. In this case it might be a tad difficult, so what I will do is, as a free service to them of course, try to keep backups of as much of their content as possible. That way if DeWynken does manage to do as he intends, they can buy them back from me at the same ridiculous price they sold it at. This does mean I’ll have to check that the backups aren’t degrading from time to time…

  4. Why isn’t more of this in the main stream public eye (yah, I know, Viacom owns a goodly portion of the public eye). But seriously, this uploading your own stuff then sending take down notices—and the f-bomb laden email exchanges between the Viacom execs–is comedy gold.

    Has Jon Stewart done a piece on the owners of Comedy Central yet?

    1. I’m sure he’d love to, but seeing as Viacom’s the hand that feeds him, he’s wisely restrained from doing as much.

      1. I’m pretty sure you mean “refrained” or don’t mean “wisely.” Though, I suppose, from Viacom’s position that would be wise.

  5. All I can say is thank god. aside from how flagrantly self serving and evil the Viacom’s tactics are in this fight its waging over youtube, they are being almost totally transparent about the fact that they are perverting our legal system explicitly to destroy or take control over something that isn’t theirs. if this trial was allowed to proceed, it would mean that there really is no justice left in our country, and the legal system really is just a tool the rich and powerful use to get what they want when they’re not really supposed to get it.

    this judge should be thanked and applauded for doing his part to stop what would essentially be a hostile corporate take over of a significant portion of why the internet is so wonderful. it sickens me that a company like viacom can’t just be happy that it already is incredibly dominant in TV and movie production, and instead wants to steal and then corrupt something that essentially everyone on earth *loves*, something that viacom itself uses to further its own marketing campaigns. if they ever get their way I think i will probably quit the internet and go back to printed books.

  6. So basically Viacom had a temper tantrum because they didn’t think up something like YOUTUBE themselves.

    If this whole thing wasn’t so hilarious on the side of Viacom’s actions – or reactions I should say – it’d be down right scary to think about it if Viacom won the lawsuit.

    It’s a big victory – but I am skeptical on how long it will last. I don’t usually see our court system and judges endowed with a font of common sense. I think this is just the calm before the storm.

    1. Yeah, in the legal world, the DMCA protects you from liability for unknowlingly posting copyrighted stuff, so long as you remove it immediately as soon as someone sends you a notice claiming it is infringing a copyright they own. If you do not remove it, then you open yourself to copyright lawsuits.

      The problem is that there is no penalty for issuing incorrect notices saying non-infringing material is infringing. So, rights holders issue many frivolous notices, and websites and ISPs remove the material anyway because it is cheaper than opening themselves to lawsuits. That means even legal use of copyrighted material often gets taken down.

      1. Not quite. The DMCA “safe Harbor” protects a service provider if a thrid party posts infringing information on a website taht they run. A simple example would be a blog – If I run the blog and I post infringing material I am not protected by safe harber. If a commenter on my blog does, then I might be, but probably not because I am not a giant corporation. The law is basically intended to protect large companies from being held responsible for things that the little people might post.

      2. “The problem is that there is no penalty for issuing incorrect notices saying non-infringing material is infringing.”

        This isn’t true. The DMCA states that filing false DMCA takedown notices can result in perjury charges. In Viacom’s case, some of the listings in the massive “representative list” accompanied in the DMCA notice they gave YouTube were false because the listings were either protected under fair use or Viacom posted the video themselves(It’s not as if Viacom would file a counter-notice on themselves). In the latter case Viacom may face perjury charges and possibly fraud.

  7. 1) Viacom is scared. Since it has been out competed in the digital world it will use it’s resources and treasure to destroy you tube instead of being innovative. Their business model has imploded.

    2) If any individual has uploaded their own content as a means to create a violation by a third party they would probably be arrested. It is called entrapment.

    3) I now expect Viacom to move it’s resources into buying off politicians to get the actual laws changed to help them win the next round.

    4) This isn’t over by a long shot. Good thing Google has deep pockets.

  8. Yeah, I was a bit shocked by “protected by the DMCA,” too, but clearly the legislation isn’t total wankery (only mostly total wankery).

    Has Jon Stewart done a piece on the owners of Comedy Central yet?

    Stewart and Colbert are golden, but they will probably have a blind spot on this.

    I’d like to see YouTubers doing a Stewart or Colbert parody cover this. ;)

  9. You know what I think Viacom is right! It is fundamentally flawed that YouTube isn’t required to review every piece of everything that gets posted to ensure that it is not a copyright violation. Actually it’s everybody’s responsibility to ensure they have the proper copyright when viewing everything around them. In fact everyone close your eyes, go hire a lawyer, and get them to walk around with you; blocking your vision of anything that may possibly be a violation or at least taking a payment for every copyrighted work you see. It’s the least you could do to ensure the proper copyright owners get fairly compensated for their addition to your vision.

  10. What’s wrong with this picture?

    A company sues another so as to make it impossible for it to do business. It uses a draconian interpretation of copyright, supposing previous responsibility for the actions of a third party, as a weapon, and tries to force a demand that is ludicrous on it’s victim.

    This lawsuit should strengthen the resolve of the persons who want to reduce copyright and intellectual property to common sense proportions.

    The use and misuse of law poses a credible threat to innovation, and probably to civilization as we know it, and copyright, which is law, is not only not an exception, but a classic example.

  11. The DMCA will protect you if you are a massive corporate entity or are very, very wealthy.

    If you are neither of these things then this law, like most all other known laws, will not protect you.

    1. Probably the best protection that the law can give to the common citizen can be found in the wording of the Bill of Rights in the U.S. Constitution:

      “…shall make no law regarding…” (1st., the best of all)

      “…right of the people…shall not be infringed” (2nd., yes, it’s a right you have regardless of anything)

      “…without the consent of the Owner…” (3rd., right, only through their consent)

      “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…” (4th., only through warrant and for very specific reasons)

      “nor shall any person be subject for the same offense to be twice put in jeopardy…nor shall be compelled in any criminal case to be a witness against himself…nor be deprived of life, liberty, or property, without due process of law” (5th., explains itself, eh?)

      “…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him…” (6th., face to face!)

      “the right of trial by jury shall be preserved…” (7th., even for property)

      “nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (8th., no “examples” to be set)

      “…shall not be construed to deny or disparage others retained by the people” (9th., you still can do everything else that we did not mention)

      “…are reserved to the States respectively, or to the people.” (10th., limited government)

  12. This farce by Viacom as represented by the article and comments is ridiculous. The only way to assure that something is being use with permission is to get a written permission from someone claiming to be the copyright holder. Oh wait, you mean Luke Skywalker doesn’t hold the copyright for Star Wars and this right to reproduce he gave me is useless? Well, how about the one from Elvis Presley? You mean he didn’t own the songs he wrote.
    Of course you if you don’t want to file for a copyright you can always just mail a copy to yourself and use the unopened postmarked envelope to establish copyright. That’s why I regularly mail myself unsealed envelopes. Now I can put that disk I burned of Hurt Locker in one and prove that I filmed it in 2001.
    The point is that sometimes copyright is difficult for the actual artist to prove. In order for YOUTUBE or a lawyer be sure that something isn’t copyrighted is to compare to everything that has been copyrighted. Since I don’t really want to infringe on Viacom’s copyrights I am more than willing to compare anything YOUTUBE plans to upload to everything in their catalog. As soon as they send it to me. Hmmmm, maybe every content creator should send me everything they’ve ever copyrighted. While they’re at it they can send a ton of cash (or checks, I’ll take checks) so I can survive while I compare all these uploads to everything that was ever copyrighted.
    They say that in corporate law a good judgment is one that leaves both parties disappointed. With that in mind a judgment should be handed down that YOUTUBE should have to have everything reviewed for copyright infringement before posting it on their site and Viacom should be the party responsible for reviewing it in a timely fashion.

  13. Google should secretly upload their logo to a viacom site, then sue viacom for a google dollars for unauthorized reproduction of their logo.

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