Here's one more point concerning the motions
filed in the YouTube case by Google and Viacom. We had mentioned in our analysis that Google highlights the details of Viacom's rather large "stealth marketing" campaign to upload videos to YouTube, but Eric Goldman points out that the practices Google uncovered certainly sound like they cross the line of what the FTC says is legitimate
YouTube also scored points for its descriptions of Viacom's stealth marketing practices. Although these facts only help YouTube's legal posture a little, the lawsuit's discovery process has unveiled some non-public information about Viacom’s practices that should be interesting to the FTC and state attorney generals. Viacom's alleged stealth marketing practices are aggressive--close to the permissible line, if not over it. As a result, they might be exactly the kind of consumer misdirection and inauthentic online content that the FTC has been railing against, and we know the FTC is looking for test cases in this area. So, a lawsuit that began as Viacom v. YouTube might morph into FTC v. Viacom. This is one of the known risks of picking a fight--once started, you can't control where it goes.
Indeed, Google presents rather detailed evidence of the lengths Viacom went through to fool users into thinking that clips were uploaded by people other than Viacom. Among Viacom's actions:
- Hiring "an army of third-party marketing agents to upload clips on its behalf"
- Having the uploads come from names that are made to look like random users
- Using non-Viacom email addresses to sign up for accounts -- with the company admitting that it wanted to use email addresses that "can't be traced" back to the company.
- Leaving Viacom offices to go elsewhere to do the uploads (such as Kinkos) to avoid connecting the uploads to Viacom.
- Altering the footage of videos to make them appear unauthorized: "so users feel they have found something unique."
While certainly helping Google make the point that it's ridiculous to expect it to know which videos were legit and which were infringing, these also seem to certainly violate the spirit of the FTC's recent guidelines
on questionable "stealth" marketing practices. As Goldman notes, if the FTC is looking for a high profile test case, they may have just been handed a ton of useful evidence.