Wednesday, March 14, 2007

Viacom Roundup

With Viacom's lawsuit against YouTube filed yesterday, plenty of people chimed in to discuss the case.

With the announcement of the lawsuit, GoogleWatch wonders why more people aren't "running around like Mark Cuban with his head cut off." On a more serious note, GoogleWatch offers 18 reasons why YouTube is guilty as charged, largely summarizing Viacom's complaint. Among the reasons:
1. YouTube's value is largely based on infringing works.
3. Although individual users are the ones to upload videos, YouTube copies the videos to its servers, indexes the metadata, and creates thumbnails. YouTube then publicly displays and performs the infringing works.
6. YouTube doesn't have a license for these works.
9. YouTube derives advertising revenue directly attributable to the infringing works.
10.
YouTube has the right and ability to control the videos on its site, and even imposes terms of use on uploaders. YouTube also proactively removes pornography.
Cynthia at IP & Democracy calls Viacom's complaint "fluffy" as it does not mention the DMCA once. Rather than cite the DMCA and argue that it is outdated,
Viacom’s complaint does nothing of the sort. It’s a bundle of fuzzy allegations that, ironically, barely cites any laws, much less laws that YouTube might be violating. It’s replete with citations from press articles about YouTube and how enriched the site’s founders have become and how a giant company, Google, hopes to continue ripping off copyright holders. It’s a puffy and fluffy lawsuit.
She also points out the irony of Atom Entertainment, a video sharing site owned by Viacom, which relies on DMCA to remove infringing videos. If YouTube is guilty of copyright infringement, then so is Viacom.

Liz at NewTeeVee points out that the $1 billion in damages Viacom is seeking is actually quite low. According to Congress, the statutory level of damages for each case of infringement is $150,000,
Take a trip to the calculators, noting that Viacom today pegged the number of infringing clips at 160,000. At up to $150,000 a pop, that’s potential total damages of $24 billion. Seriously. $24 billion.
That's a lot of money, especially as she points out that YouTube on made $15 million last year.

BuzzMachine notes that the lawsuit is really taking issue with Viacom's fans, as well as the law. Further, Viacom is simply "boneheaded":
At last week’s Online Publishers Association, Betsy Morgan of CBSNews.com, said that when an infringing clip goes up on YouTube, they take it down and then replace it with a noninfringing, official copy, which has the added benefit of enabling the conversation to cluster around one rather than many copies of the same event. That’s smart. I guess when Viacom and CBS split up, CBS got the IQ.
Techdirt calls this the nuclear option, and thinks the lawsuit shows how out of touch Viacom is with the world:
The suit illustrates Viacom's misunderstanding of the web and YouTube: its claim for $1 billion essentially says that's the amount of money it thinks it's missed out on because of YouTube (just to put it in perspective, Viacom's 2006 revenues were $11.5 billion). That's pretty ridiculous, and should Viacom's own video site ever become popular enough to deliver similar viewer stats, the revenues it generates will underline that.
Google Blogoscoped defends Google, pointing out that not all of Viacom's alleged 160,000 may in fact be infringing and may be covered by fair use. This seems all the more relevant given the mountain of takedown letters that Viacom sent YouTube last month that included numerous video clips containing no Viacom content whatsoever.

Oh right, Google has it's own news service too. Funny enough, Google News offered up this Information Week article, which both does a good job placing this lawsuit in the broader context of recent copyright complaints against Google and is perhaps the mainstream coverage that is friendliest to Google's position. Coincidence that this article heads this story on Google News?

One would like to think that this lawsuit is a ploy by Viacom to get Google to come to a fair licensing deal (fair to Viacom in its opinion, at least). Unfortunately, I do not think this to be the case. Filing a lawsuit as a means to start negotiations will undoubtedly annoy the court. Then there's the fact that Google's lawyers have a good shot at winning this case. One would have to assume that the suit wouldn't have been filed unless Viacom believes it can win and is prepared to go all the way.

The complaint uses the language of "inducement" to infringe copyright, an act that played an important part in shutting down the Grokster file-sharing service. It's worth knowing here that Jenner and Block, the firm that represented MGM against Grokster, is representing Viacom. Clearly these lawyers know what they are doing, so the failure to cite the DMCA in the complaint is likely no failure at all. To me, it looks like the complaint merely alleges copyright infringement. Any talk of the DMCA and its application tends to serve as a defense for YouTube, which Viacom doesn't have to bother with at this point. Of course, the DMCA will be central to the case, but it seems that Viacom's legal position is something akin to "hey court, this is copyright infringement, so do something about it, and if you try that DMCA nonsense it simply won't solve the problem."
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