Say That Again

by Mike Masnick




Viacom Takes YouTube Lawsuit Into The Court Of Public Opinion

from the and-rewrites-the-DMCA-in-the-process dept

The Washington Post has handed over column space to Viacom's general counsel Michael Fricklas to explain the company's position in its lawsuit against Google/YouTube. It seems like Viacom is realizing that plenty of people seem to think it's making a pretty big mistake here (including some of its own employees), and thinks that a little explanation can sway public opinion. It's unlikely to help. Fricklas explains why Viacom thinks that the DMCA's safe harbor provisions don't protect Google -- something some legal experts disagree with. However, Fricklas may damage his own case towards the end where he talks about how unfair it is to put the burden of tracking the content on companies like Viacom, noting how difficult it is: "Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution." Yet, somehow it's "workable and equitable" to expect Google to do the same thing? The safe harbor provisions of the DMCA are there for very good reasons: to keep the platform providers from being responsible for what their users do. If Viacom is upset that fans are promoting their shows for them (and we still haven't quite figured out why), then why don't they do what the law says they should, and sue the fans uploading the content?

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  1. identicon
    CRTisMe, 27 Mar 2007 @ 8:50am

    Storage issue

    c) Information Residing on Systems or Networks At Direction of Users.—
    (1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

    Everyone is overlooking one of the core issues that YouTube/Google is going to have to address per the law. YouTube can finesse its way to show it meets the fairly loose definition of being an ISP. But notice that the above law protects "Information Residing". Then later "storage" and then again "resides". YouTube is able to claim immunity for "storage" fairly clearly under this definition. However, there is no provision or protections noted for the "rebroadcasting" that YouTube does. YouTube even throws in the software for the video viewer. Therein lies first major hurdle in court for Google. In fact, do you know of other ISPs that would be so sanguine about also providing all the video viewers and supplies that help in this "rebroadcasting"?

    Storage is one thing but actively helping with moving it out of storage with your own software viewer seems a little aggressive according to this law. The words "storage" and "residing" all strongly connote things that are kept private, not publicly displayed.

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