RSSGoogle Pleads DMCA Defense in Viacom Dispute over YouTube
By Scott M. Fulton, III | Published May 1, 2007, 12:18 PM
In its response filed Monday to a complaint against it by Viacom in New York District court, claiming its YouTube division is guilty of copyright infringement against Viacom properties, Google formally invoked the terms of the Digital Millennium Copyright Act, effectively claiming it's exempt from responsibility for the content shared over YouTube because it doesn't know what that content is.
While YouTube and its new parent, Google, have been taken to task in the past by former prospective content partners for not having adopted controls against IP infringement quickly enough, it could be the lack of such controls which is providing Google with its defense against Viacom: a "safe harbor" against liability by virtue of lack of control.
In the only paragraph of the response that argues a point, Google's attorneys write, "Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the internet as an important new form of communication. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well above and beyond what the law requires."
BetaNews has contacted Google's attorneys for clarification of other language in the filing, and such clarification may be forthcoming.
It's a tricky tightrope that Google is walking. The DMCA "safe harbor" provision exempts a service provider from liability for infringing content distributed over its service, provided that distribution passes a five-point test: 1) somebody outside of the service provider must have started the transmission; 2) the transmission process can take place completely automatically without human intervention or knowledge; 3) the service provider doesn't select who gets to receive the material being transmitted; 4) the service provider doesn't copy the material itself during the interim phase when it's being passed from original transmitter to receiver; and 5) the content is unmodified when received. In other words, the service must be purely passive, like the provider of a wire.
Some might argue that if YouTube were purely passive, it would not be as popular or as functional as it is today. Last March, an editorial by a Viacom attorney in the Washington Post tried to pre-empt Google's attempt at a "safe harbor" defense in the court of public opinion, by arguing there's no way that all of YouTube's employees are kept in the dark about the content their service transmits.
In its response, Google's attorneys formally submit their motion to dismiss the entire complaint, and recoup the company's court costs.
If viacom would just tell them which files to take down Google would do it. But NOOO Viacom decides to play a big bad bully because they didn't get the royalty deal they wanted with Google. Thats all this is folks. And the court will be asking the question which content is being infringed, and Viacom is going to say what? We don't know, but there is a lot of it? Common, do the normal process of take down notices Viacom and quit your Belly aching. Its no secret what your doing but your process of doing in this way, if you win, will not only hurt Google, but joost, and MSN, and itunes, and any other legitimate service as well all because you got a bug up your butt about not getting the deal you walked out of not google. If you tell them what you do not want up there Google takes it down in moments. Its the same as having nudity or other things. The community polices it and google enforces what the community reports to them. Thats the only way ANY system like this can work. Its viacoms property so they have to step up and protect what is theirs.
The fact that Viacom went and pulled out of a deal to broadcast viacom content on google moments after it was on TV Like the BBC and other networks does, has nothing to do with it?? yea SURE, RIGHT!!! Somehow I doubt a jury will see it that way either...
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|They'll settle this out of court in the end. The remedy will be something like Google implementing a holding system for submitted content to be reviewed before posting. This will help block PPV rips which are leaked out within minutes of airing, and outright rips being posted from content which is new to market. Those are the biggest concerns for Viacom. They don't want new-release TV shows or movies posted within minutes of publication, because that impacts sales. I don't blame them. However, it's unrealistic to assume Google can police all content 100% also.
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|The remedy will be something like Google implementing a holding system for submitted content to be reviewed before posting.
I highly doubt that. Google knew they were in for a fight when they bought YouTube. I believe Google will attempt to succeed (rightly so) where Napster failed for 2 reasons:
1.) Most of the content on YouTube is legitimate, whereas this was not the case for Napster.
2.) Hiring folks to police the content would make any profit from the service a wash. Google will argue that since it is not their content and they are not responsible for it being placed there that it is Viacom's duty to review the site for infringing material (their content, their job to protect it, not Google's).
But I suppose we'll see. I just don't see Google caving on this.
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|I dont think such a system would ever work. Reviewing each video on YouTube? I dont think so...
"Some might argue that if YouTube were purely passive, it would not be as popular or as functional as it is today."
What does this even mean?
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|"Some might argue..." - Huh? I don't recall saying that.
In any case, I'm not saying Google has to actually review every video. Recall that I ended my comment with "However, it's unrealistic to assume Google can police all content 100% also."
I'm simply suggesting that the settlement might involve them making the appearance of establishing a road bump to slow down posting of time-sensitive content (PPV for example). Even a cursory scan using tags or filenames alone might suffice to quiet Viacom.
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|Welcome to the United States of America, the land of frivolous lawsuits. Come up with an idea which gains popularity and you're guaranteed to be sued by some giant corporation.
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|As we all know, this is just one (although admittedly one of the biggest) of hundreds of similar legal spats between companies and individuals going on all over the world in regards to copywrite, patents, entertainment licensing, and all other areas of "intellectual property rights".
At the end of the day it will all be irrelevant because it's the public - especially that portion of the public with technical know-how - that decide what does and does not happen on their PCs and devices in their homes, and if enough people do what the hell they want DESPITE what the law says (and they ARE), then that law is unenforcible by definition.
This has been the case for about 10 years now, since the first days of Napster & co, yet still the suits and moneymakers think they can regain control! Idiots.
More and more unenforcible laws and irrelevant court decisions have do nothing more than waste time and money that would be better spent on innovation.
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