Viacom and YouTube Cry Foul in the Case
Viacom claimed YouTube was intentionally built on infringement, citing e-mails between YouTube Co-founders Chad Hurley, Steve Chen and Jawed Karim demonstrating that YouTube's founders expected to profit from that infringement. "By their own admission, the site contained "truckloads" of infringing content and founder Steve Chen explained that YouTube needed to "steal" videos because those videos make "our traffic soar," Viacom said in a statement March 18.
Google meanwhile provided some anecdotes that characterize the actions of some Viacom employees as absurd, arguing that Viacom hired at least 18 marketing agencies to upload its content to the site and deliberately "roughed up" the videos to make them look stolen or leaked. "It opened YouTube accounts using phony e-mail addresses," wrote YouTube Chief Counsel Zahavah Levine in a blog post March 18. "It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. More damning was that Levine said Viacom demanded the removal of clips that its own employees had uploaded to YouTube, only to ask for their reinstatement later. "In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself." "Given Viacom's own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site," Levine said. This sort of ambiguity could be quite damaging to Viacom's case. Another hurdle for Viacom is that YouTube is no longer viewed as a renegade pirate of online video, but as a respectable business unit that Google has lost millions of dollars to make profitable. Users now upload 24 hours of video every minute on YouTube, providing a rich sea of content. Google has run several successful ad campaigns on the site paving the way for another successful revenue stream on the Web. If Viacom's case is too weak on its own, the judge may take YouTube's progression as business and popularity into account. "So as time goes on, YouTube solidifies a brand as a legitimate part of our information infrastructure," Goldman wrote on his blog March 18. "As we learn that the YouTube story has a happy ending, I suspect judges become less interested in punishing YouTube for past practices." Goldman said that while the best judges will be able to make their decisions based on rules articulated to them by the legislature, or established precedents, sometimes those rules aren't clear. Present perception may take over. In that case, the advantage may swing to YouTube.
Industry watchers who read the judgments claim Viacom took such characterizations out of context to prop up its case.