The Daily Background

For some time now, promoters of a democratized internet where information is freely-available and fair use and the like are protected (myself among them) have watched somewhat nervously as Viacom’s 1 billion dollar copyright infringement lawsuit against YouTube (owned by Google) has sluggishly proceeded through the legal system. It’s rare that two multi-billion dollar corporations duke it out on such a public level like this when there is so much at stake for everyone who uses the internet.

Today the first hard details on the case were finally made available, and it appears there is more than one compelling reason why the lawsuit brought by Viacom ought to be thrown out of court outright. YouTube’s chief legal counsel Zahavah Levine gives us a preview of the damning arguments that the company’s lawyers are preparing to make in court:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. 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. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. 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. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

Viacom’s brief misconstrues isolated lines from a handful of emails produced in this case to try to show that YouTube was founded with bad intentions, and asks the judge to believe that, even though Viacom tried repeatedly to buy YouTube, YouTube is like Napster or Grokster.

Wow. It’s now painfully obvious that Viacom is more disingenuous in bringing this lawsuit against YouTube/Google than anybody had ever suspected. Hopefully it won’t be long before we’re hearing that from a judge, not just some lowly blogger like myself.

Filed under: Z-TDB Blog