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.

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  1. identicon
    CRTisMe, 1 May 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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