06:44 AM

Google (secretly) to Viacom: 'Bring it on'

On her Lawgarithms blog, Denise Howell picks up the thread that Google is not exactly averse to this Viacom suit, which may mean that it won't settle as quickly as some may think.

She cites Katie Hafner's October 06 look at Google's legal eagles:

Michael Kwun, a senior litigation counsel at Google, ... said that establishing a body of precedent was a priority for Google, especially as legal interpretations continued to evolve. “If we don’t at least litigate to the point where we get rulings on the issues that matter to us, we’re left with less clarity in the law,” he said.

And EFF's Fred von Lohmann, as interviewed by John Battelle:

I've thought for some time that the first lawsuits against YouTube (and other video hosting services) will be from small copyright owners (like LA News Service), not from major media companies. That's good news for YouTube (and Google). Small timers tend to lack the resources to bring top-drawer legal talent to bear in these fights. As a result, they often lose, creating useful precedents for the Google's of the world. In fact, Google has already been successful in securing good precedents against unsophisticated opponents who thought that they could squeeze a quick settlement out of Google (Field v. Google, Parker v. Google). What the small-timers don't appreciate is that Google would much rather spend money on setting a good precedent than on settling.

So I think the YouTube acquisition may well represent a legal opportunity for Google (and the Internet industry generally), rather than a vulnerability. After all, litigation to define the copyright rules for new online services is inevitable -- better to choose your battles and plan for them, rather than fleeing the fight and letting some other company create bad precedents that will haunt you later.

So the Viacom suit is different than a lot of the victories Google has lined up so far. Viacom will bring top legal talent to the battle and it won't be surprising to see them win at the District Court level in New York. Notes Siva Vaidhyanathan:

Look, when it comes to copyright, the Southern District of New York and the Second Circuit do not make good law. Learned Hand has been dead a long time. The chances of good law coming out of the home turf of Time Warner, Viacom, and the News Corporation at the behest of some punk-kid company from California are as slim as those of good wine coming from New York. I sure wish New York produced good wines. And I wish SDNY and the Second Circuit understood digital copyright better (see Universal v. Reimerdes). But we shall be waiting a long time for both these things.