Google Officially Responds To Viacom; Bickering Continues
from the nothing-to-see-here... dept
Viacom's response to Google's response is a little off. We've already seen Viacom take the case into the court of public opinion (which supports the idea that this is all a negotiation with Google), but the latest response doesn't even pass the most basic reality test. Viacom says that Google does not qualify for DMCA safe harbor protections: "It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it. It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube."
The first sentence is specifically designed to show why Viacom believes the safe harbor provisions don't apply -- as they're not supposed to apply to content that the service provider knows is infringing or that the company directly profits from. However, neither point is actually true (and Viacom's lawyers should recognize this). While it's true that Google can search the site to see what content is there, since it's not the content owner it has no idea (1) who the actual content owner is or (2) if they want the content on YouTube or not (especially as Viacom's sister company CBS is thrilled with the free publicity it's received from YouTube). If (as Viacom implies) Google needed to take down all content on YouTube that is covered by copyright, that would mean that all content on YouTube would be taken down -- because all content is automatically covered by copyright, as per US copyright law. In other words, Viacom is wrong to imply that Google can somehow magically infer who owns the copyright and whether or not they approve of the use of the content.
The second point Viacom makes, concerning the fact that Google "profits" from the content, is also incorrect. Again, if Viacom were right, then it would render the DMCA's safe harbor provisions totally meaningless -- and we assume they were put in for a reason. Google is not profiting directly off the content. Google is profiting from providing a service for hosting, viewing, sharing and discussing videos. They're profiting off of that service -- not off the videos themselves. This is exactly the type of thing that the safe harbor provision was designed for. The example often used in discussing such a safe harbor provision is the ISP who is hosting infringing material in a user's web account. It's the user that's responsible for that content. However, the ISP is still "profiting" in providing the hosting service. That's no different than what Google is doing. If Google is considered to be profiting off the videos for providing the hosting service, then any ISP will likely fall under the same disqualification for getting paid for providing hosting services.
It seems like Google should be able to make both of these points in court and continue to keep themselves protected against such a ridiculous lawsuit (especially given how little traffic on YouTube actually comes from viewing Viacom content). However, the process will be long and expensive, and there's a decent (though unfortunate) chance that the two companies will simply decide to settle.