Reasons to care about Viacom v. Google (FAQ)

Viacom has accused YouTube of looking the other way when clips from the Viacom-owned Paramount Pictures were once plentiful on the site.

Thursday’s 200-page dump of court documents in the 3-year-old, $1 billion copyright fight between Viacom and Google’s YouTube was entertaining enough.

The documents, filed in federal court in New York, had everything from accusations of young, Silicon Valley entrepreneurs cynically ignoring the law as they sought their fortune, to claims of duplicity from a New York media conglomerate trying to embrace a start-up’s youthful audience, even while it was threatening to sue that start-up into oblivion. Oh yeah, and they revealed that the conglomerate also considered buying the little company, which made the entrepreneurs multimillionaires upon selling it to Google for $1.7 billion.

Juicy stuff. But what really matters is who presented the better legal argument. Does Viacom’s evidence prove that YouTube’s founders, at the very least, knew that copyrighted material was being uploaded to their site en masse yet chose to do nothing about it? Did Google, YouTube’s parent company, prove that Viacom has undercut its own arguments? Both questions matter because they could impact YouTube’s ability to claim protections under the safe-harbor provisions of the Digital Millennium Copyright Act.

“I think that’s the key question,” said Fred von Lohmann, senior attorney at the Electronic Frontier Foundation, an advocate for Internet users and tech companies. “At the heart of the case is what the court considers red-flag knowledge…and [whether] the kind of knowledge that YouTube had [falls] within that definition.”

Given that we’ll be hearing plenty more about this landmark copyright fight in the coming months, we put together a handy FAQ to help sort things out:

Why should I care about all this?
The decision in this case could influence how people share content online in the future and could have serious consequences for the Web as an entertainment platform. Sharing music and video online 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.

What’s at stake for Google and other Web site operators?
Whichever way U.S. District Judge Louis Stanton rules in the case, expect the loser to appeal. Whenever it does wind its way through the courts, it will help answer a major question: whose job it is to police the Web for copyright violations–Web site operators or content owners? If Google loses, it could also end up paying the $1 billion in damages that Viacom is seeking.

Unless forced, YouTube is unlikely to change its piracy-fighting policies. The site in 2008 installed a filtering technology that prevents copyrighted clips from being posted to the site. Since then, it has struck numerous licensing deals with television networks, music labels, and film studios.

If Google is held responsible for taking down content before receiving a notification from a copyright owner, such a decision could require sites like eBay and Craigslist to do the same thing, Google claims. They would have to review everything that people attempted to post to the site before publishing, sending costs skyrocketing and clogging the content pipeline. It would virtually paralyze them.

What’s at stake for Viacom and other copyright owners?
Since YouTube cleaned up its site long ago, Viacom isn’t suing to stop copyright infringement anymore. But the company says in its court documents that it was wronged by YouTube and wants compensation. For copyright owners, a Viacom loss could render copyrights even harder to protect. The Internet is vast. Who has the time and money to patrol it and continuously send take-down notices?

What is the DMCA?
The Digital Millennium Copyright Act (DMCA) of 1998 is the law created to protect intellectual property on the Internet. At the same time, the DMCA’s authors included provisions to give Web services a little wiggle room. They limited the liability of these service providers for copyright infringements committed by users by offering safe-harbor provisions. To qualify for the safe harbor, these companies must meet some requirements.

A company must not profit from infringing content and must quickly remove unauthorized material when alerted by a copyright owner. The law also specifies that qualifying services must not “have actual knowledge that the material…is infringing.” And in the absence of such knowledge, the services must not be aware “of facts or circumstances from which infringing activity is apparent.”

Did YouTube have knowledge of copyright infringement?
In some instances, YouTube did have knowledge of copyright infringement, but the key question is whether it had enough knowledge to lose protection under the DMCA. YouTube founder Steve Chen wrote in a June 15, 2005, e-mail to co-founders Chad Hurley and Jawed Karim that they had received a complaint from a company he believed to be YouTube’s bandwidth provider. “It may be because we’re hosting copyrighted content. instead of taking it down – i’m not about to take down content because our ISP is giving us s**t.”

Chen also discussed the consequences of allowing a traffic-drawing clip from CNN to stay on the site: “[I] really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he gets in touch with cnn legal. 2 weeks later, we get a cease & desist [takedown] letter. we take the video down.” There are numerous similar e-mails.

A more damaging question is whether YouTube founders uploaded clips or tried to find ways “to avoid the copyright bastards,” Hurley said in an e-mail. If true, that could undermine Google’s argument that YouTube intended only to operate a legitimate business.

An example of how a company can get hurt, if it’s proven that they took a wink-and-nod approach to battling copyright or profited from it, is the recent Isohunt case. In December, U.S. District Court Judge Stephen Wilson ruled that Isohunt, a BitTorrent search engine, was liable for copyright infringement because it induced and promoted violations. In that case, Wilson wrote that Isohunt didn’t qualify for the safe-harbor provisions because the “statutory safe harbors are based on passive good-faith conduct aimed at operating a legitimate Internet business.”

What is Google’s response?
Viacom must prove that YouTube had “specific” knowledge of the alleged infringements of Viacom clips, Google said in its 100-page brief. Google said YouTube “did not have the kind of knowledge that would have required it to remove any of the video clips at issue.”

While YouTube’s founders may have uploaded and had knowledge of unauthorized clips on the site, Google claims that Viacom hasn’t provided any evidence that the clips they uploaded or knew about involved Viacom’s content, and it therefore has no legal standing to sue Google over those clips. Viacom disputes Google’s characterization.

When it comes to identifying copyrighted content, YouTube has always said it is impossible for managers to distinguish between authorized and unauthorized material. They have no idea who posted any one clip. They acknowledge that someone at YouTube might recognize a Paramount film, but how are they supposed to know whether the studio’s managers posted the clip?

In one e-mail Google highlighted, Viacom marketers wrote “we’ve uploaded boatloads of clips onto YouTube for distribution.” Google claimed that Viacom “regularly uses stealth marketing to get its content onto YouTube…Viacom has altered its own videos to make them appear stolen, like footage from the cutting-room floor so users feel they have found something unique.”

What do the legal experts say?
Ron Cass, a legal consultant with a specialty in intellectual property, said the early evidence would seem to lean in Viacom’s favor. “When you read the facts on what YouTube’s executives said, it’s hard to see how they can squeeze into the safe harbor,” Cass said.

But EFF’s von Lohmann said that just knowing that some unauthorized clips existed on the site doesn’t mean that Google loses. He notes that Viacom is making similar arguments as Universal Music Group made against Veoh, a video site and onetime YouTube competitor.

UMG claimed in that case that it was obvious that there were infringing clips on the site and that Veoh was responsible to do something without having to receive a notification from the content owner. Veoh argued that the DMCA requires a company only to react quickly to notifications from copyright owners. Magistrate Judge Howard R. Lloyd, who presided over the case, agreed with Veoh.

“The issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place,” Lloyd wrote. “The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its Web site, and works diligently to keep unauthorized works off its Web site.”