Almost three years ago Viacom filed a lawsuit on Youtube, owned by Google, for infringement. Doesn’t seem too surprising since Youtube harbors an uncountable number of infringing videos because of its enormous amounts of internet traffic. What is astounding is that Viacom is asking for a hefty $1 billion in damages. Say what? Apparently Viacom is calling Youtube out on its negligence of allowing millions of infringing videos over the years to be uploaded and stay uploaded for longer than necessary. Youtube makes their revenue from advertisements and these advertisers pay more to be displayed on the more popular videos. Some of the SpongeBob videos of the show had over a million hits per episode. Viacom claims that Youtube was making money off of these advertisers for these popular videos and either took their time removing them or neglected at all. Viacom is also saying there is evidence of the employees at Youtube uploading the infringing videos, but there has been no evidence proven in the public light yet.
The first question here is: Does the site Youtube carry the burden of watching for infringing videos or does the company that the videos infringe have the burden of monitoring for them?
Viacom believes that due to the sheer volume of videos uploaded that are infringing (and the ones that are re-uploaded nearly right after taken down) it is a gigantic waste of time for such a huge company to have to closely monitor the content of someone else’s website. I think that Youtube should come up with a system that scans either the content or encoding of videos uploaded to the site, there could be trigger codes, much like a security insert in books or on clothes that is caught by a scanner, and the person trying to upload the video receives a notice that it is possibly infringing. Maybe they have to prove it is not…or maybe this is just a big waste of time. I see where Viacom is coming from, it’s not just that Youtube is allowing uploads of Viacom’s show content (we talked about this in class, that Youtube cannot really control up goes up, but they can control what goes down) but Youtube is actually making money from advertisers who are paying more to appear on popular videos.
Fast forward three years, the case is still going on. Last Friday, March 5th, Viacom filed for a summary judgment, claiming there has been enough undisputed evidence to rule in a party’s favor. During the case, between depositions, emails and other information, these files were kept secret, away from the public eye. Since the summary judgment has been made, Viacom wants all but the most important trade secrets out in the open and available to the public within two weeks. Google is basically having a panic attack, calling it a “logistical nightmare,” and is trying to push the information release to June. I think there is something fishy going on here. If Google had nothing to hide, what is the problem? It sounds like they are trying to get more time to clean up their notes. Meanwhile the summary judgement still remains in the dark.
Alas the second question: Isn’t it in our constitutional right to have access to trial information as long as it does not involve government trade secrets or extremely high profile cases? Is Google or Viacom in the right here?
I think Viacom’s asked for sum of $1 billion is a kind of scare tactic for Google. They will most likely not get that much (right?) but by aiming high they are assuring that they may receive the highest damages award possible. Since most cases end up available to the public, I think Viacom will win this one of releasing of information.
Who do you think is right in this clash of the corporate titans?
Best summary: http://news.cnet.com/8301-31001_3-10465492-261.html
More in-depth (another blog post a day before this one is also available on the site): http://copyrightsandcampaigns.blogspot.com/2010/03/youtubekeep-summary-judgment-papers.html
I kind of think Viacom’s demands are a bit ridiculous… sure, they shouldn’t be responsible for monitoring someone else’s site… at the same time YouTube making ad money off of Spongebob doesn’t exactly put them in the right.
I’m thinking this has a lot to do with the ongoing battle between media corporations like Viacom and Google – particularly because of Google’s search sites (google.com itself and YouTube) being common portals and aggregators of media/news/etc. It seems more likely that Viacom is working to take Google down a peg because of how much power and influence it has. Whether you believe Google is good or evil, that kind of information release would be quite damaging.
Let’s take the idea of having some kind of “trigger code” to block the upload of infringing material. How would that code distinguish between a clearly infringing upload and a fair use? What if a group like The Young Turks, who have at times played clips of copyrighted material, played a small clip of a Viacom piece, like the Daily Show, as a means of commenting on politics and society?
Viacom isn’t the only company with infringers uploading their material to Youtube. What’s to stop other mid- and large-scale copyright holders from demanding the same kind of system? You’d barely be able to use mainstream cultural material in anything you created on Youtube.
And no, I don’t think we have any right to the information about the case until after it is resolved. Releasing the kind of sensative private information used in these cases would open Google or any party up to a potential firestorm of complaints and liability suits.
Today the documents surrounding these motions were released, and YouTube offered a summary of its claims: http://googlepublicpolicy.blogspot.com/2010/03/broadcast-yourself.html
While they obviously have a bias, they raise an interesting point in that if Viacom itself cannot agree internally about whether a use is authorized, in that some of the clips they’re suing over were posted by their own employees, then how can YouTube be expected to divine the proper state of authorization?
My guess would be that Viacom is asking for a strict opt-in regime, i.e. whenever any of their content is uploaded, Viacom’s legal department has to sign off before it goes live, even if it was uploaded by their own marketing department.
YouTube also alleges that Viacom felt the need to upload their own videos surreptitiously, and sometimes “roughed” them up to seem…less official? more unauthorized? It’s an interesting question of motives here, and I don’t think it’s about sneakily priming the pump for litigation, i.e. making sure there would be some clips they could claim were infringing. That’s an unnecessarily risky gamble, because it’s not as if no one was uploading Viacom content otherwise; there should have been ample evidence of infringement. Why else would Viacom be doing this, and what would the different potential motives mean for the practicality of filtering those uploads?