Thoughts On The Viacom-YouTube Lawsuit

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 copyrighted material without the consent of the copyright owner, then there is a clear liability on their part for the violation. If you are the kind of person to use a service such as useviral in order to thrive on YouTube then the results of this lawsuit may be of particular interest to you going forward.

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 different 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.