My presentation and paper deal with the history and implications of the 2007 lawsuit Viacom filed against YouTube/Google. In February of 2007, Viacom sent YouTube over 100,000 takedown notices to which YouTube did not respond. One month later, in March of 2007, Viacom filed a 27 page complaint and suit against Google for copyright infringement through public display, public performance, inducement, contributory, and reproduction infringement, arguing that YouTube is aware of users uploading Viacom’s owned work. Additionally, Viacom says Google profits from and contributes to the infringement by their display of thumbnails as well as the streaming and hosting of the infringed content.

Viacom argues the amount of Viacom-owned unique clips on YouTube totals over 150,000, which have been viewed in total over a billion times. Viacom says there is no feasible way it has the capability to search and send take down notices for every single case of infringement, and therefore, the responsibility of policing and removing infringed material belongs to YouTube, who, Viacom says, already possesses the ability to filter other types of content for removal (like porn).

Google has since argued they are protected under the Digital Millennium Copyright Act section 512, which says ISPs are not liable if they meet the following requirements:

(i) must not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of the facts or circumstance from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material

While this argument held water, recent discoveries made in October of this year may incriminate YouTube and effectively dismiss their use of the 512 defense. Emails have emerged between YouTube managers which allegedly acknowledge their awareness of Viacom clips hosted on their site, as well as a stated refusal to take them down. Further, there is evidence emerging which alleges that YouTube employees themselves are responsible for uploading many of Viacom’s clips. This type of evidence could be YouTube’s smoking gun and be enough to give Viacom a hefty reward.

The future implications of this case are interesting. First, like much legislature, do we think Congress anticipated this problem? That is, in 1998 was Congress considering the big media conglomerates which own hundreds of thousands of pieces of digital content easily hostable on the web? Should the 512 Safe Harbor protections be malleable to suit the instance? For example, let’s say I am the content producer of one user-generated YouTube video. The burden placed on me to find and send takedown notices to infringers is not that great, as I am searching for only one clip among all of YouTube and the internet. But should Viacom, a content producer that owns hundreds of thousands of clips, each of which can be reproduced hundreds of times, be held to the same level of responsibility? Is the burden then on these large content owners too much to bear? Is there a point at which the ISP should be held mutually responsible for ensuring infringed works do not end up on their site?

Please post your thoughts below.

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