3.15.07 Viacom suit is an assault on Silicon Valley
By Richard Koman - March 15, 2007
So I finally read Viacom's complaint against Google and from a legal perspective I find it strange. The complaint is completely based on the Copyright Act and completely ignores the DMCA's Safe Harbor provisions.
This section of the DMCA essentially says that "service providers" will not be liable for user-submitted content if it's posted in an automated process. The other major part of the law provides that the content owner can provide a "take down" notice; if the service provider doesn't comply, then it becomes liable for the infringement.
While Viacom doesn't attack the Safe Harbor directly, it strongly suggests the law is unfair to content owners.
Even though Defendants are well aware of the rampant infringement on the YouTube website, and YouTube has the right and ability to control it, YouTube's intentional strategy has been to take no steps to curtail the infringement from which it profits unless notified of specific infringing videos by copyright owners, thereby shifting the entire burden - and high cost - of monitoring YouTube's infringement onto the victims of the infringement.
In other words, YouTube is accused of doing exactly what the DMCA says it should do - wait for a take-down notice.
Google will claim the Safe Harbor provisions in their defense and, as I see it, Viacom will need to show that Google was not in compliance with those provisions, that they in some way encouraged or selected or promoted copyright-infringing material. Thus, they should lose.
Which will suit them fine, because the appeal will go to the legitimacy of the Safe Harbors. On appeal, Viacom, with amici from the rest of the content industry, will argue that the sharing and embedding aspect of YouTube was unforeseeable by the drafters of the DMCA and that the current reality illegitimately impinges too far on copyright protection. That Safe Harbors are in fact unconstitutional.
To be sure, Viacom is alleging that Google did more than serving as a conduit for user-uploaded content. But the ways in which YouTube is alleged to have broken the rules are basically a description of Web 2.0:
YouTube returns a list of thumbnails of matching videos in its library ... YouTube also allows any person to "embed" any video available in the YouTube library into another website ... When a user clicks the play icon, the embedded video plays within the context of the host website ... YouTube also makes it possible for a user to share an embedded video by clicking the word "share" ... These embedded videos act as a draw to attract users to YouTube ...
The whole Internet industry is built on the Safe Harbors. Indeed, it was Congress' intent to support the growth of the Internet by freeing it from these very concerns.
"Google has basically been following the advice of the best lawyers in Silicon Valley," EFF's Fred Von Lohmann said. "If Viacom wins, that would call into doubt all of the business models that relied on the same kinds of legal advice."
By Richard Koman - March 15, 2007 | Permalink | Comment
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Comments (7)
Excellent point Richard. There is some glee around Silicon Valley that GOOG is getting a bit of grief from Viacom, but the truth is that if Viacom prevails then many SV startups that use other's content according to current laws are vulnerable to similar lawsuits and damages. Not to mention the knock-on effect to ISPs etc if those safe harbors are overwhelmed...
Posted: March 15, 2007 12:51 PM
I have yet to find a property owner who advocates someone else stealing it.
Amanda Chapel
Managing Editor
Strumpette
Posted: March 15, 2007 5:07 PM
Amanda: I don't advocate it and I assume Google doesn't (although there are some stories to the contrary). The point is should an internet company have liability for what their users post. The law says no, unless the company is advocating, encouraging, etc. If Viacom is merely asserting that YouTube in fact does encourage, IMO they don't deserve the protection of DMCA. If, on the other hand, Viacom is arguing that the should be changed, that YT should not be able to transfer the burden to the content holder, then they are effectively arguing the law should be invalidated. Whatever you think about whether the law should remain or be overturned, changing it is undeniably harmful to Silicon Valley.
Posted: March 16, 2007 10:41 AM
Amanda: You can "steal" this content if you want. Just attribute and keep my links and make money from it if you can. It's not plagiarism it's distribution :-) When there is a pageview business model that works I can shut the barn door then.
Posted: March 17, 2007 4:48 PM
Don't you guys think that this is just a negotiation between Viacom and Google for the most part?
I mean Viacom nor Google want a legal precedent to be set by all this, it could spell the virtual end of online video.
Posted: March 21, 2007 9:51 PM
Phil: GOOG and Viacom are headed for a showdown.
This is "High Noon" and just as dramatic. (And just as breakthrough as the movie was...)
Posted: March 22, 2007 12:24 AM
Disagree. I think Viacom wants Safe Harbors struck down. I think Google wants to draw a line in the sand as to their liability. To some degree, Goog was playing hardball with Viacom in their negotiations and this is their comeuppance. But they have no problem defending lawsuits and now that it's been made, settlement sets an awfully bad precedent for Goog's CFO. Of course if they come out with some "win-win" agreement, all may be smoothed over.
Posted: March 22, 2007 9:43 AM