Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 14, 2007

Thoughts On The Viacom-YouTube Lawsuit

by Doug Mataconis

Yesterday, Viacom filed a multi-billion dollar lawsuit against Google, the parent company of YouTube alleging massive violations of copyright law:

Viacom, the parent company of MTV, Nickelodeon and Comedy Central, filed a wide-ranging lawsuit against Google on Tuesday, accusing it of “massive copyright infringement.” Viacom said it was seeking more than $1 billion in damages and an injunction prohibiting Google and YouTube from committing further infringement.

Citing the $1.65 billion that Google paid for YouTube, the complaint said that “YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value.” The complaint was filed in United States District Court in New York.

Google said it was still reviewing the lawsuit but repeated past assertions that copyright law shields it from liability for clips posted by its users

I am not an intellectual property lawyer, but at a glance, but it seems pretty straightforward to me that if YouTube was knowingly allowing users to post clips from copyrighed material without the consent of the copyright owner, then there is clear liability on their part for the violation.

It is analagous to the Napster lawsuit from the early 90s; Napster was knowingly allowing its users to trade copyrighted music. Two Federal Courts found, correctly I think, that this violated the rights of the copyright holders in the music and ordered the service shut down. The YouTube situation is slightly differeent from Napster only that there is no evidence that YouTube has actively encouraged users to post copyrighted material. Nonetheless, the risks for Google seem pretty high:

Joseph M. Potenza, a partner at Banner & Witcoff in Washington, said Viacom had a case, judging from “the amount of material and the financial benefit that Google is getting.” Under copyright law, Google might have a defense if it was not told about the copyrighted material, or if it did not benefit financially from it. But neither defense applies in this case, Mr. Potenza said.

But the law is only half the equation here.

Viacom is mostly likely on the right side of the law, but much like the music companies that brought down Google Napster, they may end up being on the wrong side of public opinion. YouTube is immensely popular, and it seems clear that neither Viacom nor any other television network suffers any real financial harm if, say, a 3 minute clip from last week’s The Colbert Report is posted on YouTube. If anything, they get a promotional bonus from it.

Viacom and other media companies would be wise to look at the Napster case and the shattered reputation of the RIAA before they proceed with gusto against YouTube.

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  • Mark T

    My understanding that YouTube was (only) required to remove material which was identified by the copyright holder as infringing. This exception allows “common carriers” to be exempt from litigation resulting from actions that their users/subscribers take.

    Does Viacom allege that they notified YouTube about specific material and YouTube did not remove it? Or are they asking YouTube to review all content posted and judge which content may be infringing? In my non-lawyer view, the former situation makes YouTube liable for damages and the latter is Viacom overreaching.

  • Terence

    Regarding public sentiment, is copyright infringement, of this type of material, a dead issue?

    Overall, do people care?

    I just know that downloads of SOMETHING, from SOMEWHERE, legal or otherwise, seem to be a part of everyday life: A quick right-click ‘n save of an mp3 off of some blogger’s collection, and then transferring it to one’s online locker; viewing the latest eppy of a fave show at some site, so that waiting around for a network to buy, then slap it up, isn’t an issue (I live in OZ, the latest stats say on average we’re 17 months behind); after seeing it on MTV, checking out Christina’s ‘Candy Man’ clip on YT, so as to post it to one’s blog, but finding the first one has been removed, then finding a dozen more, plus more of the same on other sites.

    I mean, the examples above are just three piddly actions over, say, one day. And my actions are the same as tons of people around the world. I’m not saying it’s right, it certainly doesn’t feel wrong, it just feels like the everyday, the mundane.

    So the question begs: On a global scale, and in a general sense, does the public really care?

    Sometimes I think it’ll take the exec-boomers dying off, to make room for new blood and more appropriate ideas, ideas the b-b mob can’t seem to get their heads around, before we see some type of cohesion between the Viacom-type crowd and end-users. End-users have a long list regarding choice, and they go to those who meet their demands … And YT’s only one such stop.

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