We're seeing more and more analysis of the summary judgment motions
filed by both sides in the YouTube lawsuit between Google and Viacom. Unfortunately, many sites are basing their analysis on the out of context
quotes Viacom pulled out of some emails -- despite the fact that the evidence doesn't actually support what it claims. One particularly laughable analysis was done by a group funded by the entertainment industry, which not only takes those quotes out of context and considers them proof, but then completely misinterprets Google's filing as well
. The writer, George Ou, seems to think that the point of Google's filing is to show that since Viacom used YouTube, it shouldn't file a lawsuit. But that's not at all what Google's motion said. The point wasn't that Viacom used YouTube, but that it uploaded all sorts of content in secretive ways -- ways that would make it impossible for Google to know what was and was not infringing. Furthermore, the arguments were about how Viacom set up a complex set of ever changing rules that confused even Viacom's partner in issuing takedowns, and yet expected Google to be able to magically know what Viacom wished taken offline, and what should be left online. Oddly, Ou seems to have missed all of that, despite it being the central point to Google's motion. He also falsely claims that Google is suggesting if Viacom uploaded some content, that means everyone should be able to do so. Google said no such thing. It's merely pointing out that Google is in no position to know what Viacom is authorizing and what it is not -- and according to the law, that means Google need not try to guess.
A much better analysis, that really cuts through the clutter and highlights the key point of the case, is the one by the EFF's Fred von Lohmann, where he notes (as Eric Goldman did) that in a footnote, Viacom admits that it's fine with all of YouTube's actions after
May of 2008, when it implemented its own filtering technology. Once you realize that, it becomes clear: Viacom is claiming that the DMCA requires filters
. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year
, that he felt the current DMCA
was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.
And yet, by Viacom's own (indirect) admission in this lawsuit, it seems to believe that the DMCA requires proactive monitoring:
So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.
So please pay careful attention to the actual arguments being made here. No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube's responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not
required -- and, as Google's filing makes clear, even if it were required, given Viacom's own actions, this would be impossible.