Viacom and YouTube Cry Foul in the Case

By Clint Boulton  |  Posted 2010-03-20

YouTube Brand May Be an Advantage in Viacom Copyright Case

While a judge weighs arguments from Viacom and YouTube in one of the most closely watched copyright cases in the Web's young history, a legal expert said YouTube might have the advantage of transforming into a reputable business.

Viacom sued video-sharing site YouTube and Google for copyright infringement in March 2007, with the case winding its way through court amid a sea of confidential filings. Many of those filings became public March 18 in motions for summary judgment from the parties. 

Viacom contended in its motion that Google acquired YouTube in 2006 because it was a "haven of infringement" and planned to profit from it. Google in its own motion alleged that after filing the suit Viacom secretly uploaded video content to YouTube, "even while publicly complaining about its presence there."

While industry watchers feel YouTube and Viacom each scored points, YouTube's evolution into a recognizable brand may give it the upper-hand, said Eric Goldman, associate professor at Santa Clara University School of Law and director of the High Tech Law Institute.

"The longer this case goes the more benefit YouTube gets," Goldman told eWEEK. "In 2006, a judge might not have heard of YouTube, let alone used it. By 2010, a lot of judges know YouTube before it even gets into their court room. I'm guessing most judges have positive thoughts about YouTube."

Goldman said that there has been a fair number of court cases where judges have used YouTube videos as a legal citation. Over time, more judges are becoming familiar with YouTube and are thinking positive things about it. That works to YouTube's benefit.

More broadly, Goldman said Google wins most lawsuits against it because it's Google, a well-known search engine used by millions of people. "Everyone knows Google and judges are reluctant to take down Google," he said. 

This sentiment doesn't bode well for Viacom, the owner of such television staples as MTV Networks and Comedy Central. When the giant sued YouTube, it alleged that YouTube and owner Google habitually allowed the uploading of thousands of copyrighted video clips.

Google argued that video content posted to YouTube by consumers was protected under the Digital Millennium Copyright Act, a 1998 law that protects Internet companies from liability if they remove content at the request of the copyright holder. Google's position was that it would take down content if copyright holders' asked it to.

Threes year later, the unsealed documents revealed unseemly behavior and attitudes from plaintiff and defendant.

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.

Industry watchers who read the judgments claim Viacom took such characterizations out of context to prop up its case.

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. 


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