Google Officially Responds To Viacom; Bickering Continues

from the nothing-to-see-here... dept

As expected, Google has officially responded to Viacom's lawsuit. As you probably recall, Viacom has sued Google for $1 billion over the fact that its videos can be found on YouTube and Viacom doesn't like having to issue takedown notices (as per the DMCA). The filing from Google is pretty much exactly what you'd expect. It points out that Google is well within the law. When Viacom sends takedowns, Google complies -- even if Viacom screws up and demands non-Viacom videos get taken down. Google's lawyers also point out that Viacom was one of the companies that pushed for the DMCA and had a clear hand in shaping what was in it -- noting that it's a bit ridiculous for the company to now be complaining about the law it wanted put in place.

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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    RandomThoughts, May 1st, 2007 @ 6:39am

    I can't sell hamburgers for $50 that includes a free bag of pot and not expect to be arrested for selling drugs.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Ajax 4Hire, May 1st, 2007 @ 6:42am

    DMCA, RIAA and other4-letter words

    SCO (although, technically a 4-letter word) also belongs in the list of words that are inappropriate in polite conversation.

    The most ferocious behavior only comes at the end.
    We are witness to the end of an era.
    The end of large corporation controlled information distribution; censorship on content will not be possible as long as there is internet connection to sites in countries that do not recognize your laws.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Overcast, May 1st, 2007 @ 7:22am

    No, but if you own a strip mall.. And lease property to people and one of them opens a hamburger place that does this - should the guy who rented the space to the restaurant be liable too?

    That would be a more suitable analogy to this.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    CRTisMe, May 1st, 2007 @ 7:24am

    Can't hide everything under the DMCA blanket

    Both parties in this suit have some legitimate claims. Google is not going to be successful claiming that all of its YouTube activities fall under the DMCA blanket. Those specific activities that fall outside of it create liability and a jury can sort out what percent falls outside that law. Obviously Viacom's claims are inflated also.

    And where the DMCA law is unclear other laws apply and other case law settlements provide guidance.

     

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  5.  
    identicon
    hmm, May 1st, 2007 @ 7:26am

    But if you pay me to hold onto those hamburgers, share those hamburgers, and never open the bag myself, then who's at fault.

    Viacom is not including illegal substances in their videos, and google is not charging for any of this.

     

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  6.  
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    TheDock22, May 1st, 2007 @ 7:29am

    Re:

    What does that have to do with anything? I hate idiots who throw in examples that have nothing to do with the article.

    I do agree that Google is not profiting directly off the videos themselves, but rather the service. As far as Google not knowing about infringing content, that is a bit of a stretch. Of course they can hide behind the fact that these are user submitted videos, but honestly SOMEONE at Google know users are uploading infringing videos, no one is that dumb. Google has not really done anything to prevent this though, such as suspending the user's account for uploads or preemptively searching their site and pulling down infringing content. They seem to be hanging back until a Take-down order is issued and THEN they get around to taking down the video.

    I'm not sure if you need both of those requirements for the Safe Harbor Provision, but if so I do not think Google falls under this provision and Viacoms lawyers have a good point (unfortunately, since I can not stand Viacom).

     

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  7.  
    identicon
    Dan, May 1st, 2007 @ 7:30am

    DERAIL!

    whoa! redesign! that was weird because it happened whilst I was commuting. gotta change bookmarks now to point to the blog. other than that my only gripe is that the right nav bar headline color gradient is too pastel-y. You should make it that 'From the Techdirt Blog.." color.

     

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  8.  
    identicon
    Anonymous Coward, May 1st, 2007 @ 7:46am

    Re: Re:

    Obviously, someone at Google knows infringing material is on there. Its just a matter of statistics. However, the problem arises when you say, "Ok, now go through everything and remove the infringing content." There's *no* checklist or set of characteristics to compare a video to and say, "Ok, this is infringing." I mean, yea, they can go through and say, "oh, i definitely recognize that as viacom." But there'll be videos that they don't recognize too. Just because its obvious some material is infringing doesn't mean they can go through and remove that. There's no clear line so its impossible to automate it and impractical to expect human users to sit and go through it all. The amount of content on there now would probably take years upon years even if hundreds of people were going through it. You'd have to watch the entire thing and THEN you'd have to search and see if its copyrighted somewhere. I mean, you can't provide special service to Viacom for free and only remove their stuff. Either you have to find ALL infringing material or you can provide a service and say, "hey, if you provide us with an easily searchable library of all your material so we can easily search our library and see if anything matches, and then *pay* us for this service, we'll do so. Otherwise, you'll have to put up with the DMCA."

     

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  9.  
    identicon
    Anonymous Coward, May 1st, 2007 @ 7:49am

    Re: Can't hide everything under the DMCA blanket

    What claims don't fall under the DMCA? Its easy to say something isn't true, but its nice to have actual reasons or examples.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Ajax 4Hire, May 1st, 2007 @ 8:08am

    Do any of you actually view youTube material?

    because if you did, you would quickly find that about 99% of the content is user created.

    I would not want to be the person required to 'view' every uploaded video for possible copyright violation of a production studio.

    Next you will sue AOL for offering Instant-Messaging program and someone used one of your trademarked words.

    go blow your nose with a Kleenex, put a Band-Aid on and determine "Where do you want to go today?" on the "Human Network."

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    CRTisMe, May 1st, 2007 @ 8:13am

    Re: Re: Can't hide everything under the DMCA blan

    Not under DMCA Blanket examples:
    1. Google will have trouble proving that it had no knowledge of general infringement and decent chance that Google/YouTube emails will likely show knowledge of specific clips Viacom infringment that they did nothing about after becoming aware of a specific infringement.
    2. I would argue that YouTube was profiting from these clips directly by placing Google ads directly close/around to these clips. This is a different matter from the general profit from all material on YouTube which would fit under DMCA. The jury will be able to separate out these activities and put a value on them. It is clear that YouTube when it was negotiating with Viacom and before things fell apart indicated that it could clearly identify and split ad income with Viacom that related to Vicaom clips. In fact, YouTube likely has other signed contracts out there with content owners that states that explicitly.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    BillGod, May 1st, 2007 @ 8:13am

    Not siding with Viacom but......

    I have to disagree with the article when it says "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"

    Thats like saying you can start up a cable channel and put on other channels shows because you are only providing a service for people to view them and you are only making money from advertising. It doesn't matter if they upload them or someone else does.. Its someone else's material. Whether or not its fair use is the actual problem here. I think a 30 second clip of a funny comment from the daily show is fair use. so I am not siding with Viacom. I just have an issue with a statement the poster says.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Ajax 4Hire, May 1st, 2007 @ 8:16am

    TechDirt is now in violation of copyright

    Owners of the Copyright words:
    Kleenex,
    Band-Aid,
    "Where do you want to go today?"
    the "Human Network"
    should be lining up lawyers for a take-down notice.
    Or is this 'fair use?'

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Mike (profile), May 1st, 2007 @ 8:18am

    Re: Re:

    Of course they can hide behind the fact that these are user submitted videos, but honestly SOMEONE at Google know users are uploading infringing videos, no one is that dumb.

    But which videos are infringing? That's the thing. There's simply no way for Google to know. That's the point. How do they know if the content owner wanted the content on YouTube?

    Google has not really done anything to prevent this though, such as suspending the user's account for uploads or preemptively searching their site and pulling down infringing content.

    Again, they can't preemptively take down content because they don't know if the content owner wants it up there until they receive a takedown notice. Considering that many others, including CBS, seem to want their content to be shared... how can they know?

    As for the point that they're not suspending users' accounts, that's false. If you are found to have uploaded infringing content more than once, Google will suspend your account.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Ajax 4Hire, May 1st, 2007 @ 8:24am

    Re: Re: Re: Can't hide everything under the DMCA

    and make the advertisers pay as well.
    Their ads were 'close' to the video clip.

    If you are guilty by proximity, then your internet provider must also be guilty, they served up copyrighted material;
    your computer is in violation, it played copyrighed material,
    you software is in violation.

    No, you cannot blame the road or the billboards or people 'close' by when you violate the law.

    If I mail copyright violation material to you, does that mean that the Post-Office is a fault. They should monitor every piece of mail for copyright infringement.

    The copyright infringement is done by the person who creates the content, not Google or youTube or the internet or your computer.

    The RIAA finally realized this and went after the individuals.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, May 1st, 2007 @ 8:58am

    Re: Re: Re: Can't hide everything under the DMCA

    1) as far as i know, Google removes infringing material the moment they are given a takedown notice. They can't be expected to go look for Viacom stuff specifically. Thats preferential treatment for no good reason other than that Viacom is big. Also, why the hell would Google execs talk about clips on YouTube? I doubt they're sending emails back and forth saying, "Hey, did you see that Daily Show clip up there?"

    2) Doesn't matter where the ad appears on the page. Proximity has nothing to do with it.

     

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  17.  
    identicon
    Wacko, May 1st, 2007 @ 10:35am

    Suggestion

    I myself have never uploaded anything to youtube, but I've seen the general process. Something that would make life a lot easier for Google might be to add a disclaimer notice before a user complets posting a file. All it would have to read would be something along the lines of: I here by certify that I have the right to distribute this video. Or something of that nature... could save google a lot of headaches... then anything that is posted won't be the responsibility of the hoster but the poster.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    paul canning, May 1st, 2007 @ 10:37am

    I would have thought the Australian case, where ABC clips were taken down en masse at the request of a teenager, clearly demonstrates just how simple it is to get stuff taken down.

    unless they can show viacom take down requests get treated as a special case (i.e. ignored) isn't it all or bust? public space (youtube) or no public space?

    I agree with the comment that it's the end of an era.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Charles Griswold, May 1st, 2007 @ 11:49am

    Re: TechDirt is now in violation of copyright

    Owners of the Copyright words:
    Kleenex,
    Band-Aid,
    "Where do you want to go today?"
    the "Human Network"
    should be lining up lawyers for a take-down notice.
    Or is this 'fair use?'

    1) google "define:copyright"
    2) google "define:trademark"
    3) feel a sense of embarrassment that you didn't bother to learn the difference before you posted.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    michael.l, May 1st, 2007 @ 11:56am

    Re: Suggestion

    On Google video there is a check box which says (approx.) "I am the copyright holder" ...

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Charles Griswold, May 1st, 2007 @ 11:58am

    Re:

    I can't sell hamburgers for $50 that includes a free bag of pot and not expect to be arrested for selling drugs.

    Yes, you can. Of course, reality doesn't automatically conform to your expectations.

    On the other hand, having a $50 bag of pot in your possession is illegal in the U.S., whereas having a digital video in your possession is not, per se, illegal. Specific videos might be illegal, but most of them are not.

    A more accurate (but still not perfect) analogy to this whole mess would be holding UPS responsible if someone used their service to send pot to a customer.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    michael.l, May 1st, 2007 @ 12:01pm

    why Viacom's stance is senseless

    Imagine the case where Google (or any other company in a similar position) is held responsible for any infringing content that is posted. An copyright holder (and any original creation that is created in fixed form is automatically copyrighted: your photos, your blog posts, the video you create) could hold the service provider hostage simply by having a third party post the material and then claiming damages. It would be absurd. The people who are claiming that Viacom have some reasonable claim here either work for Viacom or their lawyers or simply have not thought this through. If even Viacom can't determine what is infringing content (the false take-down notices), why should someone who is not the copyright holder make that determination? Sorry, but that's ridiculous.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    TheDock22, May 1st, 2007 @ 12:24pm

    Re: why Viacom's stance is senseless

    Imagine the case where Google (or any other company in a similar position) is held responsible for any infringing content that is posted. An copyright holder (and any original creation that is created in fixed form is automatically copyrighted: your photos, your blog posts, the video you create) could hold the service provider hostage simply by having a third party post the material and then claiming damages.

    Actually, if someone asks you to take down the material you have an obligation to do so (thinking take-down notice here). The problem is Viacom told Google to take down their material, and Google only took down the videos in the Take-down notices and continued to have Viacom chase their tails and weed out all of there content. They messed up a few times, but in the end why should Viacom waste THEIR time, it is not their service!

    As far as everyone saying it is impossible to through programs to figure out what is infringing content I disagree. There are plenty of image analysis software programs they could implement to give them a list. Then have someone double-check the list to see if it really is infringing material. Would it be expensive? Definitely, but a lawsuit would cost more I bet.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    SailorRipley, May 1st, 2007 @ 12:59pm

    Re: Not siding with Viacom but......

    First off...it's companies like Viacom that pushed for the DMCA in the first place, they got what they wanted, so they shouldn't be complaining now about practices that are covered by the DMCA they themselves wanted.

    Secondly, the only (legit) purpose of an analogy is to make somebody who is not familiar with the original situation, understand it better by using a situation or environment the person is more familiar with. However it is never a legitimate construct in a discussion. You can make all the analogies you want and subsequently prove whatever you want about the (correctly or not) analogous situation/example, it proves jack shit about the original...

    And for your particular cable channel example...that is just so faulty it's not even funny...IF you'd want to make an analogy, you'd have to compare Youtube with a cable provider that instead of offering the standard cable channels offers a wide variety of user-home channels (wayne's world style) and some of these making tv at home people would point their camera at regular tv channels (CBS, Comedy Central,...) and transmit that as "their" show.

    But as I said before, using analogies (and subsequently using arguments that would hold true (if that) for the analogous example) in a discussion is not a valid technique, but IF you insist on using analogies, at least make sure the analogy in and by itself is more or less correct

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    SailorRipley, May 1st, 2007 @ 1:11pm

    Re: Re: why Viacom's stance is senseless

    The problem is Viacom told Google to take down their material, and Google only took down the videos in the Take-down notices and continued to have Viacom chase their tails and weed out all of there content.

    well, that is how Viacom and others had the DMCA contructed: Online Copyright Infringement Liability Limitation Act ("OCILLA") creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent

    which means exactly that if Youtube takes down any video when receiving a notice from Viacom saying: we have the (copy)rights to this particular video and want it taken down, Youtube is in the clear, Youtube doesn't have to comply to a (vague) request like "take down all videos to which we have the copyright". V

    iacom can tell Google "take down our material" as often as they want, Google, by law is only required to take down any and every video Viacom specifically tells them to take down through those takedown notices...

    as said before, Viacom was one of the companies that pushed for that DMCA, so they can't bitch about it now.

    Viacom has no legal leg to stand on, as long as Google continues to comply with any specific takedown notice Viacom sends them, they're just using this ridiculous lawsuit as a despicable negotiation tactic, it's sad to see they fooled at least you...

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    CRTisMe, May 1st, 2007 @ 2:15pm

    Viacom and Google are engaged in a specific business dispute. While it is fun and instructive to argue the larger universal issues this case will be resolved based on the specific issues. Most of them have to do with representations that Google made directly to Viacom in negotiation meetings.

    For example only (this is hypothetical) if Google told Viacom partner with us and we'll split the ad revenue. We run only authorized clips on our main channel and we will easily find (through our automated system which we are rolling out imminently) individual users who post independently and put pressure on them and ban them if they don't comply. Now when the parties couldn't come to terms, Google then overly relies on the DMCA and says to spite Viacom, "Oh we can't possibly be successful policing content, giggle giggle- posters will be posters and we wash our hands of it" oh and by the way "we now get 100% of the ad revenue instead of 50%- ha ha"

    The contract representations made by Google and Viacom and recorded accurately by both parties will form the basis of this lawsuit. Where there are numerous grey areas in the DMCA law (does one have to continually renotify, does a poster get aggressively disiplined, will Google rat out the posted identity if Viacom asks for it to pursue the individual, etc) then the jury will be tasked with splitting the difference fairly between these two parties who each have some legitimate claims.

     

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  27.  
    identicon
    smokebreak, May 1st, 2007 @ 4:59pm

    At Digg.com they are censoring their stories about HD-DVD. It's all due to the decryption key string that has been available for a week now. I personally am going to use this for my Linux box, much like i use De-Css.

    09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 - The number string that is causing censorship in blogs (HD-DVD key for Linux use)

    Fight the DRM with information, I just thought that this would be most relevant to this story being you can download hd content to your pc, but only legally buy buying it, not if you already own it and want to transfer it to another medium


    This is the website contact address that sent the cease and desist take down notices to Google..... Have fun with it (DOS-it? :P)
    webmaster@proskauer.com

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    mike allen, May 1st, 2007 @ 11:23pm

    imagine this

    You work for a large company say Viacom you bosses dont like web sites like say you tube because they beleave that only they can produce films and video.
    Your Boss asks you to upload some clips you have been working on which you do then six months your boss sues the owner of the web site. in other words i beleave Viacom have set up you tube and Google for this and i will continue to blog it on every site i can as for cease and desist notices I have a good shredder.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    reed, May 2nd, 2007 @ 8:18pm

    Re: imagine this

    "Your Boss asks you to upload some clips you have been working on which you do then six months your boss sues the owner of the web site. In other words, I believe Viacom has setup Youtube and Google for this and I will continue to blog it on every site I can. As for cease and desist notices, I have a good shredder."

    If Viacom wins this lawsuit you might just have a very profitable business model here. Shhh, don't tell anyone else and be sure to patent and copyright the idea! lol

     

    reply to this | link to this | view in thread ]


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