Shooting First

More on Viacom's spate of takedown notices that removed seemingly legitimate content from YouTube, via Business Week.

Copyright Damages

William Patry has an interesting spin on the recent Philip Morris decision that found it improper to hold the cigarrette maker liable for general damages for injuries to all smokers as a violation of due process. In discussing what the decision means for damages, Patry refers to the mp3.com case, which resulted in huge damages, to say that this limiting of damages could easily be applied to generalized damages for copyright infringement. An interesting thought to consider.

Viacom Challenges Google

The big news for the past week has been the very public spat between Viacom and Google. Probably still upset that it didn't get offered a sweet deal as part of the GooTube deal, Viacom appears to have given up on working out an arrangement with Google and has opted to start its own video site, while also sending YouTube over 100,000 DMCA takedown notices. That's the short version at least, but this feud has been brewing for a while and it seems that it will Viacom with more headaches than it had before.

In mid-October, Google announced that it was buying YouTube for around $1.6 billion. Under that deal, three of the four major labels (Universal, Sony/BMG, and Warner) received equity stakes in YouTube (while also promising not the sue the site for a while). About a week later, Viacom pulled all its clips for the Daily Show and Colbert Report from YouTube. Most of those clips reappeared about a week after that due a compromise where clips of shows would be allowed online, but not full shows, and users uploading full length shows were "put on notice." Viacom purported to be looking for the right balance between protecting its content and pleasing its audience.

Which brings us to early February, when Viacom again demanded clips of its shows be pulled from YouTube. More than 100,000 videos were pulled at Viacom's request, which came only days after negotiations over a distribution agreement between the companies fell apart. Viacom owns iFilm, where Viacom clips can already be seen, it has cleaned up the Comedy Central site to allow sharing and embedding of videos (the old layout was absolutely terrible), and there's plenty of talk about Viacom and other companies setting up their own video site, as these companies are increasing viewing GooTube as pirates.

One issue that YouTube is having striking such deals involves its filtering system. It has been working on a new system to help identify, flag, and remove infringing videos because such a system is a requirement under the DMCA to not get sued out of business (plus it keeps people happy). It was reported in early January that YouTube was having problems with its new filtering system, but the NYT reported ($$) on February 3 that YouTube had made the filtering system available to Warner and other companies who had signed deals with YouTube. It seems fair to say that this news, in large part, helped trigger Viacom's recent retaliation. It certainly doesn't seem fair for YouTube to withhold such a filtering system from those that don't agree to its terms, but again, Viacom already has legal remedies (DMCA takedowns) without YouTube's filter such that any filter is merely a perk for business partners. This whole back and forth between YouTube and Viacom is well covered here by Ars.

Whether you think that Viacom is being obstructionist or that YouTube is a mecca of piracy is irrelevant for the next, and possibly most fascinating part of this story, namely the 100,000+ DMCA takedown notices that Viacom sent. To be sure, unloading that many takedowns at once is a huge amount of work for YouTube to deal with, so it certainly was a spiteful gesture. However, it appears that not all 100,000 takedown notices were directed solely at Viacom's content. It's unclear exactly how many home videos got swept up into Viacom's list of allegedly infringing videos, though Viacom admits somewhere around 60-70, but here's the story of one video that was wrongly pulled (and if you've never seen a takedown letter from an ISP, notice the attached takedown letter from YouTube and how little information it offers).

This is a huge deal. DMCA 512(c)(3) lays out the contents of a takedown notice, saying that it must include, among other things, the location and identity of the allegedly infringing work and a statement of good faith belief that the material is infringing. Further, DMCA 512(f) covers misrepresentations, saying that a knowing material misrepresentation that material is infringing creates liability for damages. That sets up Viacom for a potentially serious black-eye, given people's general uneasiness with the DMCA due to the ease in which legitimate content can be yanked off the Internet with few safeguards.

The EFF has already stepped up on behalf of users and is currently trying to seek out how many users had their videos wrongly removed from YouTube. Though the EFF is merely gathering info at this point, do not be surprised if they do end up in court with Viacom over some of the claims, especially given that the EFF fought an improper DMCA takedown notice with Diebold and won a bunch of damages not too long ago. CNet has good coverage of the takedown issue too.

Wherever one falls on YouTube (legitimate or flagrant infringement), I can't imagine agreeing with Viacom's sense of entitlement to flaunt the law. While it may feel slighted by being denied YouTube's most advanced filtering system and resents having to monitor the site and file DMCA takedowns, nothing excuses Viacom from abusing the rights they do have at the expense of innocent third parties, in particular individuals posting innocuous videos. Is everybody supposed to follow copyright law but Viacom? The sense of entitlement that Viacom is displaying here is appalling and I hope that they are appropriately shamed.

Patenting Book Pages

Ars reports that Amazon has been given a patent for showing you digital pages of meatspace books you have already bought. Read the patent, #7,174,054, for yourself.

An invention must be not obvious to a PHOSITA to be eligible for patent protection, so this story only adds to the ongoing debate over whether a new standard for obviousness is needed to prevent patents like this. Certainly, displaying books digitally is a fairly obvious "invention," though one wrinkle is that Amazon claims to do this with books you already own (though it's not much of a non-obvious addition either).

This may cause problems for Google's Book Search, which remains in a legal dispute with several book publishers over copyright issues. First, Amazon came out with Amazon Upgrade, which essentially one-upped Book Search by allowing fully usable (and searchable) versions of purchased books online. Now its patent for displaying books arguably covers any attempt to display books electronically. Not only may Google be affected, but its possible that portable electronic readers could run afoul of the patent as well. If the patent ends up giving Amazon total control over the digital book market, then it appears the publishers will end up getting their way in destroying any modern Library of Alexandria.

To be fair, it seems that Amazon was first to offer searching in books despite resistance from publishers.

Adding this to Amazon's infamous 1-Click patent, it seems that either they have pretty good patent attorneys or the patent system is certifiably broken. And given Amazon's willingness to enforce the 1-Click patent 28 days after getting it, don't be surprised to hear of someone getting a nastygram in the not too distant future.