Viacom and NBC Want Amicus Briefs in Tur v YouTube

In the District Court in LA, Viacom and NBC have asked for permission to file amicus briefs for Robert Tur, the video journalist suing YouTube over footage from the Rodney King riots. ZDNet thinks it a sign that NBC may be readying its own suit against YouTube, though NBC's ambiguous relationship with YouTube suggests that the network may just wait out the legal storm. After all, there are three suits currently threatening YouTube's existence - Tur, Viacom, and the Premier League - so another suit won't bring about a resolution any faster (unless it pressures YouTube to settle with all the parties, who don't seem to be in a settlement mindset anyway) and it will just force NBC to pay a bunch of high expensive lawyers to bring a copycat suit.

That Viacom and NBC want to file amicus briefs isn't a surprise. Since the Tur suit is the farthest along (we're just waiting for the court's decision on summary judgment) and deals with the central question of whether YouTube complies with the DMCA, the outcome of the case will influence what happens with Viacom and the Premier League.

If YouTube is found to qualify for DMCA safeharbor protection in Tur, it may be difficult for Viacom and the Premier League to argue that YouTube isn't covered. This may be why Viacom didn't even mention the DMCA in its suit, so as not to be repeating Tur's argument if he ends up losing.

Then again, Viacom and the Premier League brought suit in New York and New York is not bound by what the courts in California decide. However, the Southern District would certainly have to address the decision in Tur and give it some weight and conflicting decisions on YouTube's safeharbor status would pave the way to the Supreme Court. Because a win for YouTube against Tur will make things more difficult for Viacom, and NBC probably wants a better deal without the expense of litigating itself, it's a no-brainer for them to do what they can to help Tur win his case.

YouTubeClassAction.com

This is already turning into a real riot. With the Premier League and Bourne Co. suing YouTube/Google over unauthorized clips (read complaint), it also turns out that their lawyers, Proskauer Rose LLP and Bernstein Litowitz Berger & Grossmann LLP, have started YouTubeClassAction.com (registered back in March) whereby you can keep up to date with the case and even sign-on as a plaintiff in the case.

Premier League Complaint

Here's the complaint in the proposed class action Premier League and Bourne Co. v YouTube and Google. Have yet to fully unpack it but, no joke, it seeks certification as a class action against Google and YouTube with the English Premier League and Bourne Co. (a NY music publishing company) as lead plaintiffs.

YouTube Sued Over Soccer Clips

Looks like the English Premier League is now suing YouTube over the posting of unauthorized clips, having filed suit today in the Southern District of New York. I have yet to find a copy of the complaint online, but all the reports cite the complaint as accusing YouTube of encouraging massive copyright infringement, resulting in the loss of valuable content. One report even says that the League will pursue class action certification "on behalf of themselves and 'thousands of others' whose copyrighted works have allegedly appeared on YouTube.com without permission."

The league reportedly has a billion plus broadcasting deal with Sky, a deal with foreign broadcasters for 320 million, and has been active going after sites that offer video of league matches in violation of mandated blackout periods intended to increase attendance at games.

While this appears to be an attempt, just like the Viacom suit, to avoid the DMCA issue of whether YouTube qualifies for a safe harbor, it's worth pointing out that the international aspect of this case will raise some interesting questions. The DMCA doesn't apply in England, so if the videos are uploaded there, YouTube's liability would depend on the law in England. Even worse, if the videos are uploaded in the US, but are accessible in England, YouTube might be subject to English law for when those videos are viewed there. I am unfamiliar with any cases dealing with 512(c) and extraterritorial copyright claims, so this should sure be interesting to see how this plays out.

More to come for sure once I find a copy of the complaint.

Belgian Newspapers Back on Google

To recap, Google was sued last year for copyright infringement by Copiepresse, which represents several Belgian newspapers, over Google News links to newspaper articles. Copiepresse sued in March 2006 after Google debuted a Belgian version of Google News. Google originally failed to respond to the lawsuit, so in September 2006, the judge ruled in favor of Copiepresse and ordered Google to remove the links to Copiepresse newspapers, as well as display the ruling on its homepage. Google than sought a rehearing, which it lost in February 2007, where the judge said that Google was infringing the newspapers' copyrights by linking to their stories.

The case comes down to Google's caching of the newspapers' archives. While the newspapers at issue initially offer their content for free, they charge for access to their archives. Their complaint against Google was that their articles were being cached and delivered to users after the point where the papers began charging for them. While the case implicates the issue of whether Google News needs to pay newspapers for simply linking to their stories, the central sticking point (and presumably why the lawsuit was filed in the first place) was Google's providing articles for free that the papers were charging for. After their loss in a Belgian court, Google removed all links to the newspapers, even to their homepages in the search results.

It now appears that a deal of some sorts has been struck as the newspapers are back in Google's search results, but there is no access to cached versions of articles. The technical fix is the use of the "noarchive" tag, used by other papers such as the NYT to prevent their articles from being archived in the Google cache. Ironically, Copiepresse originally balked at being forced to use such a self-help measure, arguing that Google couldn't impose this on copyright owners.

Common sense would suggest that NOT being in the Google index was hurting the newspapers far more than having Google cache and serve up paid content. Because of the characteristics of Belgian law, the decisions against Google were never that bad because they were confined to the parties involved (Google didn't need to make wholesale changes to Google News) and the decision carries no value as precedent (that's how it works there). So, when sued, Google was forced to remove all traces that these newspapers even exist and they have now come back to Google to be indexed.

While Google may have lost in court, it appears that their search business has been further validated by Copiepresse's apparent concession that it can't afford not to be indexed. Google's opt-out policy ("we will index and cache everything unless you stop us") appears, in the end, to have prevailed because that is exactly what Copiepresse has had to do to get back into Google's search results.

Any greater implications for this are unclear. While this was a peculiar case dealing with foreign law and the Google cache, the underlying theme is that content owners should avail themselves of the self-help mechanisms that do exist if they don't want Google indexing and caching their stuff. In the context of Book Search, that means opting-out of the program. With YouTube, that means following the DMCA takedown procedures. Book Search and YouTube are different from this situation, but Google's approach is the same: we're going to serve up what we can find online so defend it with easy to implement tags (robots.txt, noarchive) or ask us to remove it.