Viacom v. Google

My new modem arrived and is now installed so I'm back in business. Sorry for the disruption.

On Wednesday, U.S. District Court Judge Louis Stanton ruled on the Viacom v. YouTube & Google copyright infringement case. To the surprise of many, the judge ruled in favor of Google and YouTube.

Let's talk about the case. Viacom, which owns Paramount Pictures, MTV Films and Nickelodeon Movies, sued YouTube (and its parent company Google) in March, 2007, claiming:

YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America's creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube's benefit without payment or license.

Google bought YouTube in 2006 and immediately set about negotiating deals with the entertainment companies whose material kept appearing on YouTube as content. I reported on their progress, as well as the difficulties they were having in negotiating with Viacom in a post in May, 2007 here:

In early February, talks broke down between Google, YouTube and Viacom. Six weeks later, on March 13th, Viacom sued both YouTube and Google in New York's U.S. District Court for more than $1 billion dollars, citing widespread copyright infringement.

CNET News quoted a legal expert in a March 13, 2007 story here:

"Although legitimate copyright concerns come into play, Viacom's action is 'probably about a large company that would prefer the old status quo, where they had most of the control (over their content distribution), and they didn't cede it to companies like YouTube and Google,' said Jeffrey Lindgren, an intellectual-property lawyer at Morgan Miller Blair in San Francisco."

In my blog post I mentioned earlier, I quoted an article in Tech News World:

"Google claimed that Viacom's allegations of copyright infringement were without merit because You Tube is protected by one or more of the DMCA Safe Harbor provisions."

The Digital Millennium Copyright Act (DMCA) was signed into law on October 28, 1998. It provides "safe harbor" for online service providers, including ISPs, against copyright liability if they block access or remove copyright-infringing material once they are notified of a copyright infringement claim.

Viacom responded that YouTube didn't qualify for safe harbor protection. They claimed that YouTube was set up to profit from copyright infringement. Here is another quote from their filing:

YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value.

On March 19, 2010, three months before Judge Stanton ruled, CNET posted a great article titled "Reasons to Care About Viacom v. Google (FAQ)." Here is an excerpt:

Sharing music and video on the Internet was once a free-for-all, but a decision against Google and YouTube is a sign that the taming of the Web is under way ... If Google is held responsible for taking down content before receiving a notification from a copyright owner ... [t]hey would have to review everything that people attempted to post before it was published, sending costs skyrocketing and clogging the content pipeline. It would virtually paralyze them.

Go here to read the entire CNET article.

Apparently Judge Stanton agreed with Google's reasoning. He didn't even let the case go to trial. Instead, he granted Google's request for a summary judgment. Yesterday's Publishers Weekly reported:

In strong language, the court found that YouTube does qualify for protection from the potentially infringing acts of users under the safe harbor provision of the Digital Millennium Copyright Act (DMCA). And, in something of a rebuke to Viacom, the court actually praised Google for its handling of infringement complaints.

Here's an excerpt from the judge's decision:

Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

By promptly removing the copyrighted content after receiving a take-down notice, YouTube afforded itself protection under the safe harbor provision of the DMCA.

On the Official Google Blog here, Kent Walker, Google's Vice President and General Counsel, had this to say about the decision:

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other.

Obviously Viacom feels differently and has already started the appeal process. Michael Fricklas, Viacom's Executive Vice President and General Counsel, issued a statement here that said:

We are disappointed with the judge's ruling, but confident we will win on appeal.

Copyright protection is essential to the survival of creative industries. It is and should be illegal for companies to build their businesses with creative material they have stolen from others ...

This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today's decision accelerates our opportunity to do so.