03:03 AM

3.15.07 Viacom suit is an assault on Silicon Valley

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."