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My belief that Google should be held liable for copyright infringement in Viacom's $1bn YouTube lawsuit is no secret.

With the lawsuit making headlines recently, I figured it was an appropriate time to lay out in some detail why I feel the way I do in a two-part series.

In Part I today, I'll evaluate Viacom's allegations - namely that Google is liable for direct, contributory and vicarious copyright infringement.

Direct Infringement

"Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright."

To successfully prove direct infringement, a plaintiff has to prove that it owns the infringing materials and that the defendant has infringed upon at least one exclusive right afforded to copyright holders under the law.

In the case of Viacom and YouTube, Viacom will not have any problem establishing ownership of the material that it claims is infringing.

Proving that YouTube has infringed upon its rights should also not be difficult in my opinion.

In A&M Records, Inc. v. Napster, Inc., the appeals court upheld that Napster infringed upon two exclusive rights afforded to copyright holders - the right of reproduction and the right of distribution:

"We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights."

Napster unsuccessfully argued that it was protected by fair use doctrines and any attempt by Google to make such a claim would almost certainly be unsuccessful on similar grounds.

As it was with Napster, it will be hard for Google to argue that YouTube does not infringe upon Viacom's distribution and reproduction rights as YouTube and its users have not been granted any rights by Viacom to distribute and reproduce Viacom's material.

Contributory Infringement

"...one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer."

Has Google known or had reason to know of the direct infringement allegedly taking place on YouTube?

It's hard to argue that it hasn't.

Given the ease with which copyrighted material can be located on YouTube, the number of takedown notices that it has received under the Digital Millennium Copyright Act and the discussions over the legal risk Google was taking when it acquired YouTube, it is difficult to argue that Google has been completely clueless about the extent to which YouTube has been a vehicle for wholesale copyright infringement.

One of the reasons Viacom has sought massive amounts of YouTube user data is to quantify the amount of infringement that has taken place on the service.

Obviously, if Viacom can demonstrate that the level of copyright infringement has been so great as to have been unavoidably noticeable, Google will have a 
harder time arguing a believable level of "ignorance."

Additionally, the battle over data related to YouTube employee usage of the service is relevant. If Viacom can establish that YouTube employees 
uploaded and/or viewed infringing material, it will help establish specific cases of knowledge even though Google may argue - unconvincingly - that 
the employee was unaware that the material was infringing.

In A&M Records, Inc. v. Napster, Inc., the district court found that:

"...Napster had both actual and constructive knowledge that its users exchanged copyrighted music. The district court also concluded that the law does not require knowledge of 'specific acts of infringement' and rejected Napster’s contention that because the company cannot distinguish infringing from noninfringing files, it does not 'know' of the direct infringement."

The appeals court gave Napster some benefit of the doubt and followed Sony Corp. v. Universal City Studios, Inc. (the famous Betamax case), which essentially set the precedent that just because a technology can be used to infringe copyright does not necessarily make its creator liable for copyright infringement.

However, this was a moot point for the appeals court in the final analysis:

"Regardless of the number of Napster’s infringing versus noninfringing uses, the evidentiary record here supported the district court’s finding that plaintiffs would likely prevail in establishing that Napster knew or had reason to know of its users’ infringement of plaintiffs’ copyrights."

"The record supports the district court’s finding that Napster has actual knowledge that specific infringing material is available using its system, that it could block access to the system by suppliers of the infringing material, and that it failed to remove the material."

While Google will argue that it takes down infringing material when notified as required under the Digital Millennium Copyright Act, it is worth noting that one still has no difficulty finding Viacom material on YouTube.

When it comes to Google's material contribution to copyright infringement, the appeals court in A&M Records, Inc. v. Napster, Inc. applied Fonovisa, Inc. v. Cherry Auction, Inc. and found that “[w]ithout the support services defendant provides, Napster users could not find and download the music they want with the ease of which defendant boasts."

YouTube is arguably even more involved in infringement than Napster. Not only does it provide a means to find and view infringing material, it actually prepares the infringing material for viewing.

When a video file is uploaded to YouTube, YouTube's servers apply a physical process to the file to transcode it into the Flash video format so that it can be displayed in YouTube's Flash video player. This transcoding is an integral part of the YouTube service and one could argue that without this, the wholesale distribution of infringing content on such a service cannot take place.

As such, it seems entirely probable that the court will find that Google had the requisite level of knowledge about the infringing activity taking place on YouTube and materially contributed to it.

Vicarious Infringement

"Vicarious infringement occurs where someone has a direct financial interest in the infringing actions being committed by another and has the ability to control it, even if they do not know that the infringement is taking place and do not directly take part in it."

Google clearly seeks to benefit financially from YouTube. After all, its acquisition of YouTube for $1.65bn was not an act of charity.

While monetization has been an issue, YouTube is still reportedly set to generate around $200m, in revenues this year according to the Wall Street Journal.

It is hard to argue that copyrighted material has not been a major contributor to YouTube's popularity and Viacom's access to the YouTube user data will likely quantify this quite compellingly.

That is problematic for Google because in Fonovisa, Inc. v. Cherry Auction, Inc., the court found that financial benefit does exist "where infringing performances enhance the attractiveness of a venue."

Thus, if Viacom is able to show, as I expect it will, that the infringing material has enhanced the "attractiveness" of the YouTube as an online "venue," Google will be considered to have benefited financially.

When it comes to Google's ability to "control" infringing activity, the appeals court in A&M Records, Inc. v. Napster, Inc. noted that:

"To escape imposition of vicarious liability, the reserved right to police must be exercised to its fullest extent. Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability."

While the appeals court agreed that Napster's ability to "control" infringing activity did have its limits, it also found that "the file name indices, therefore, are within the 'premises' that Napster has the ability to police."

Even though one might argue that file names could be incorrect or relate to noninfringing material, the court noted that the "file names must reasonably or roughly correspond to the material contained in the files, otherwise no user could ever locate any desired music."

In the case of YouTube, it is not difficult to use the service's search index to locate clips from The Daily Show, South Park and The Colbert Report.

When search terms related to these Viacom programs are used, YouTube even suggests other related search terms which amounts to assistance in the location of infringing material.

As such, it appears that the court could easily find that Google is not policing its system to the "fullest extent" possible.

While Google may argue that it has implemented and is working on technologies that will help it identify infringing materials, the truth is that a significant amount of harm to Viacom could easily be avoided without complex technologies by:

  • Blocking outright certain search terms that reasonably correspond with Viacom material.
  • Using YouTube's search index to more effectively police the service.

Given this, I think it's questionable that Google will be able to defend against Viacom's vicarious copyright infringement claim.


From my perspective, Viacom has a compelling case that Google is liable for direct, contributory and vicarious copyright infringement.

Google has clearly violated Viacom's copyrights, has materially contributed to the infringement of Viacom's copyrights and has profited from the infringement of Viacom's copyrights all the while failing to exercise the power it has to police YouTube.

Tomorrow, I'll look at Google's greatest defense - the Safe Harbor provisions of the Digital Millennium Copyright Act.

Drama 2.0

Published 23 July, 2008 by Drama 2.0

237 more posts from this author

Comments (25)

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George Riddick

This is best review of the facts, and the compelling logic, of this Viacom v. Google/YouTube case I have seen on over a year. You have done millions of typically innocent end users a huge favor. Great job!

Perhaps now, some of your readers wil beter understand the emotion and th dtermination my small graphic arts publishing company, Imageline, has in its pursuit of justice relatied to these exact same issues.

What your readers might be shocked ot leasrn is how long Google, itself, long before it acquired YouTube, has impleanted this exact same kind floagrany online pracy throught its "image search" and other like services.

Here's an article I wrote a few weeks back congratulating the judge's wisdom in the Viacom case:

Ding dong ... the witch is dead!

... or at least she is starting to melt!

Wow ... I would say this is very good news to the entire copyright industry. While potentially inconvenient to YouTube viewers, and understanding the importance of privacy protection in the complex world of the Internet these days, this decision by the judge in the Viacom v. Google/YouTube case may be the best thing that has happened to the copyright industries in this country, and to our overall economy, in practically a decade.

I have been following this case, and others like it, now for several years. I, for one, am sick and tired of the Google's of the world blaming their own customers for all of the infringing activity that occurs day in and day out over the Google sponsored networks. Who do you think gains the most financially from these obvious infringements - Google or the poor smuck in Louisville who does not have a clue what is right or wrong, let alone what is infringing and what is not?

In fact, if it is true that an individual typically adapts his or her production and viewing habits from what they see and are taught by the larger media, entertainment, Fortune 500, and technology companies in this country ("if this weren't legal, certainly mighty Google wouldn't encourage it as they do or run AdSense ads on the infringing sites, and Exxon/Mobile wouldn't be placing ads on the sites that are displaying the "shared" works, either").

It is an unfortunate reality today that many of the copyright defense lawyers, and their clients out to make the big bucks regardless of the rules, have made a mockery of the Digital Millennium Copyright Act (the DMCA), which was signed into law in 1998 by President Clinton. Like the music industry has learned in the school of hard knocks (aka "the real world"), it is virtually impossible today to hold the middlemen in these unlawful distribution channels and networks accountable. So, what do the copyright companies have to do to protect their valuable property? Go directly after the often innocent "end users" who are often sucked into this game, more often unknowingly than not. It is shameful.

Perhaps this New York court decision will help to turn those tides.

Google enables widespread copyright infringement activity like no other company on this planet. Google subsidizes entire networks of infringers through it Adwords and AdSense marketing and advertising programs. Google facilitates willful copyright infringement. Google enables widespread copyright infringement. Day in and day out. Google causes enormous damages to legitimate copyright holders every second of every single day. Google has been doing this for years. They earn a substantial portion of their overall revenue and profits by sponsoring illegal activities over the Internet. And their operations outside the U.S. are far more egregious than the infringement activity we see referenced in this Viacom case, which is largely within our borders.

I, for one, have had enough. Baseless, if not ludicrous excuses and piracy defense strategies, implemented by what used to be some of the finest copyright law firms in this country, - "fair use", "safe harbor", "no harm", "unclean hands", "de minimus damage", "copyright misuse", "DMCA safeguards", "willful blindness", "laches", and on and on - haven't we seen it all?

What do they all mean in Google's true vernacular? How about this. "We are big. We are powerful. We can do anything we damn well please. Quit complaining, copyright owners, or we'll cut you off from all the online revenues streams, as well". Better yet, "... if you don't conform, we'll simply run some of this stuff from our operations in Brazil, Russia, India, and China (those BRICS have plenty of money), and let them beam it all back here to the states."

Aren't you tired of watching Google hide behind the skirt-tails of their customers. "They were the ones who loaded the illegal videos onto our system, not us." Or , better yet, "how were we to know that Bart Simpson wasn't already in the 'Public Domain'?"

Is Google alone in this? Unfortunately, the answer is no. Microsoft, AOL, Yahoo, and others are moving as fast as they can to mimic and duplicate Google's cash cow system, whether the law is violated or not. Cash is the king. And copyrights from the creative industries are not the only victims. Haven't you seen lately, similar claims (and penalties) levied against these giant Internet companies for their advertising efforts to support, or even subsidize in many cases, the distribution of harmful pharmaceutical drugs and counterfeits over the Internet, sponsor illegal gambling and pornography web sites, and many others too numerous to mention. Billions and billions and billions of dollars every single month.

"What do you expect us to do, your honor. Try out every single drug our customers illegally deliver just because we provide the advertising revenues for them to survive?"

This activity not only helps to destroy our economy, it breaks down the moral fiber of our society. What makes you think this young generation that has grown up witnessing these wide scale unlawful activities delivered to them (usually "free of charge") via the Internet, will be able to draw a distinction between the virtual world and the physical world where STEALING in concerned as they get older and have to put food on a table full of their own babies and elderly parents? The jury is still out on that one.

I applaud the nerve, and the intelligence, of the judge up there in New York who presides over this case between Google and Viacom. Maybe your recent ruling will cause all of these Internet parasites to wake up and see the error of their ways before it is too late for all of us.

As a pleasant footnote to copyright holders. Do you think the judge would have allowed the complete user logs of YouTube to be released in this case if the outcome of this case was not leaning in Viacom's direction? I certainly do not. This may, indeed, be one of the most important weeks in the history of protecting the original works of copyright owners in this country ... one of the few absolute rights that was guaranteed to all of us in our Constitution over 200 years ago.

Congratulations New York. Congratulations copyright holders. It must feel good to know you have some judges up that way who have your best interests at heart in enforcing our critically important (and "endangered") copyright laws and maintaining the delicate balance between managing and policing unbridled growth (i.e. "growth at ANY cost") over the Internet and maintaining our vital and long standing ethical, moral, and legal business practices going forward, while looking out for your best interests.

... which old witch ... the wicked witch!

George P. Riddick, III
Imageline, Inc.


about 8 years ago




Interesting read while browsing through google news today. Esp that our society is very litigious today and one has to be careful.

I do have few curious questions :

1. Assuming the world is perfect and we lived in Utopia. If Google's video's were only usermade (and i never uploaded nothing that is not mine) would you still think that Youtube should be shut down?

Opinion: Because it exposes unknown people who otherwise would not be known. Or it gives learning material such as Science and math for free? To those that could or not want to pay 2,500 for private sessions or the elite?

Opinion: 2. Do you think linux operating system should be shut down ? Simply because it is not Microsoft and free. Which means oppurtunity for those people not wanting to pay $350 for an operating system.

What "you" Baby boomers really want in this regards. Just illegal contents removed (by the stupid who upload them) or anything that does not have a price tag? Or not understanding that technology is the driving force of mankind past 20xx - 2100's.


My sole intent as a younger "generation" is to understand you/ people in their 40's - 60's. Who were not raised in the digital age of "internet." Many of whom unless taught by "us" younger generations would not do by themselves. No doubt i have a friend who is in 40's and used the BBS system. But it is rare percentage speaking in those regards.


about 8 years ago




As Drama himself will no doubt shortly point out, he is not a member of the older "generation" nor was he raised in the analog age that lacked the "internet". He's likely only a few years older than you. I'm not surprised, however, that you assumed he was older. His article was well written and was based on cogent, factual arguments, without resorting to hyperbole or ad hominem tactics. Your comments, on the other hand...

1. No where in the article does Drama indicate that it is his opinion (or Viacom's for that matter) that Youtube should be "shut down". As an outlet for the unknown and upcoming to gain exposure for their talents, or a means of sharing videos that are not subject to copyright protection, Youtube is an important cornerstone component of Web 2.0. At issue, and rightly so, is copyright infringement.

2. Can you say, non sequitur. There is no copyright infringement that I am aware of with Linux. I think Drama would agree that the economic and technological competition from Linux has been great for user of all computer systems, be they commercial or open source.

I would caution you against making age related generalizations about technology literacy. There will be no shortage of people, both here and abroad, that get technology, but there are far fewer people that can recognize the right things to do with technology. The latter is a much harder skill to acquire and develop, and while exceptions certainly exist, there is no substitute for experience in this matter.

On the matter of generations, you may enjoy something else Drama wrote: http://www.drama20show.com/2008/05/26/generation-y-again/.


about 8 years ago




First i'm merly sharing my own freedom of expression. I love my Constitution that allows me to do so. Of course within limit, but still as a free person.

Next keep in mind that I'm not attacking him as a person. When I say "him" I'm referring to they. Which I'm referring to most older people in regards to Internet and computers (which i take part in helping if requested). I was also stating an opinion not necessary to his reply or the article. But after reading many negative articles around the web. I'm really afraid and can't tell you how much. Should youtube or any site that could be used as freedom of information or expression / knowledge get shutdown. I was though asking from him and like (others) what do they think of my statement. That is where they stand, in regards to having two coexist. I took it bit further to linux as Linux is also in same boat.

Youtube is just one of the many sites. Where I stand as a representative "of my generation?." When I say representative I mean one to speak out say in line of my generation. I respect Copyright and do not wish it to be uploaded. I assume whatever is uploaded to say youtube. Is work of a none big brand. Which the inidivdual uploaded themselves in first place. They retain the work of art, but were nice enough to hear it on my screen and like.

. My thought and the thing I wrote unfortuntly was not able to translate.

about 8 years ago



edit: How strongly they feel to my statements of thought. What is their own view in regards to this all.

Be it Youtube or alike.
Be it linux or alternative OS.

about 8 years ago



I see the article I will read it when I get time. Thanks for bringing it to my attention. Well I quickly glanced but did not read to make a good (thoughtful) reply.

about 8 years ago



The argument for direct liability should be reworked. The evidence is to argue by analogy to the Napster case. The problem is that the section cited in the Napster case repeatedly refers to "Napster users" as infringing. YouTube users are similiarly directly liability, but that doesn't support a claim that YouTube is a direct infringer.

Just an observation, not an arguement for or against any particular outcome.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Tom: couldn't have responded any better if I had tried.

Mts: I am in my mid-20s so your assumption that only Baby Boomers believe copyright law serves a valid purpose is downright wrong.

The bottom line is that the creators/owners of creative works have been given certain rights under the law and entities like YouTube are arugably violating them. It's that simple.

Ben: I should have been a little more clear in my post - the courts in the Napster case had to determine the likelihood of Napster being found secondarily liable for direct infringement.

That said, there are some differences between Napster and YouTube that are worth pointing out because YouTube is in an even more precarious situation in my opinion because I think it could be considered a primary party.

See this discussion of the district court ruling in the Napster case:


Note the discussion of Hotaling v. Church of Jesus Christ of Latter-Day Saints. As applied to Napster, the district court judge found the plaintiff's argument unconvincing because Napster did not actually hold "a copy of the copyrighted work in its 'collection'. "

In the case of YouTube, YouTube does host the "collection" of infringing materials.

Not only that, its transcoding of uploaded videos into Flash video format for the purpose of enabling them to be distributed and "performed" in its easy-to-use Flash video player involves YouTube directly in its users' infringing activities.

Whereas Napster simply provided an index detailing where infringing materials could be located, YouTube is essentially a "partner in infringement":

1. It prepares the infringing material for distribution and performance.
2. It hosts the infringing material.
3. It assists the public in locating infringing material.
4. It provides the means by which infringing material is viewed by the public.

Looking at all this, it appears to me that Napster actually had a stronger case than Google does. If my assessment turns out to be anywhere near accurate, this doesn't bode well for Google.

about 8 years ago




"Mts: I am in my mid-20s so your assumption that only Baby Boomers believe copyright law serves a valid purpose is downright wrong. "

Anything exubarant is not directed at anyone (as "him" her") but outlook opinions on media.

I do care about copyright too but I like said already few times. I do not wish to have youtube and like shutdown. Because of few stupid users uploading copyrighted materials. I'm not asserting of doing away with copyrights though.

Opinions and attempt to rephrase to make sense in words:

I think copyright is important but does not mean that user submitted contents sites can't exist. What might happen is the few may spoil the fun for the mass.

........ Unless Google and like can come up to make sure that only none professional (and term loosely used as many make good video's) are uploaded. So a cute video of a pet, amature movie (again loosely used) Math tutorials, Science curriculums etc. Maybe that is just me, but youtube to me is not about "Hollywood," I don't honestly enjoy it nor the music. I listen mostly to classical, classical modern (mix of trance and classical good example's are: the virus remix, Vivaldi winter remixes etc (much more saved more in youtube). Also techno in general, trance dance. Other none mainstream music.

Should youtube (like youtube) go away for example what will their be for me? I do not listen to the radio nor "really" (as more then few hours) watch TV. I don't enjoy it and sometimes feel it all insults my intelligence. I recall PBS having Nova (they still do) and many more Science programs. I prefer seeing an Engineering video on youtube over Brittany any day (example only). Cool "solar project" "invention showcase" "technology showcase."

Where does it leave me or people like me? That are not interested in the mass media.

about 8 years ago



Pardon me I like to add I did not finish my thought or correctly sequenced it: Should "I" go into full isolation because I don't enjoy mainstream entertainment should youtube (and like) go? So far the only other place is teacherstube.com www.scivee.com. But it is much smaller but at least has some mars footages (Robotics and such).

Stands to also reason napster was not relevent to me nor Kazaa. To listen to mainstream stuff. I did download couple pdf's: but they are now here: http://www.ibiblio.org/kuphaldt/electricCircuits/

about 8 years ago



should youtube (and like) go? =

1. Big media sues them out of existence and they go bankrupt.

2. Big Media forces these "tubes" to pay to them. Which I do not support as I did not want to see big media contents anyway.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Mts: I think you are still missing the point. This is not about forcing YouTube out of existence. It's about two things:

1. Determining whether or not YouTube's owner, Google, is liable for infringing upon Viacom's intellectual property rights.
2. Holding Google liable if it is found to have infringed Viacom's rights.

If you don't watch content produced by companies like Viacom, this really doesn't impact you. And if services like YouTube are capable of thriving because there are lots of people like you, their willingness to exercise their ability to police (to the fullest extent possible) the content uploaded by their users should not hamper their ability to succeed.

about 8 years ago



One can't be secondarily liable without direct infringement by a third party. "Secondarily liable for direct infringement" is just an awkward way of saying "secondarily liable".

An argument for direct infringement would need to show how YouTube reproduced or distributed the copyrighted works…without reverting to the facts that show its users directly infringed…or by analogy that Napster’s user directly infringed.

Not sure anyone should listen to me though since i can't seem to get that 6 letter code right...third try :)

about 8 years ago

Chris Lake

Chris Lake, CEO at Empirical Proof

Ben - our Captcha is a bit sucky, thanks for persevering. We're working on a new site and this will sort out the problem.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Ben: Viacom isn't going to have any difficulty demonstrating that YouTube users have directly infringed Viacom's copyrights (in my opinion).

As I noted in my last comment, there are also arguments to be made that YouTube has directly infringed.

In Hotaling v. Church of Jesus Christ of Latter-Day Saints, the Church of Jesus Christ of Latter-Day Saints had acquired a single copy of a microfiche copyrighted by Hotaling for use in its main library and, without permission, copied it for placement in multiple branch libraries.

The court ruled that such behavior violated Hotaling's distribution rights.

"When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of § 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission."

Once again, the fact that YouTube transcodes infringing material into a different format, hosts a "collection" of infringing material, assists the public in locating infringing material through a search index and performs that infringing material publicly on its website provides, in my opinion, a compelling argument for the application of Hotaling v. Church of Jesus Christ of Latter-Day Saints to Viacom's lawsuit and I'd be surprised if Viacom's lawyers didn't make this argument.


about 8 years ago



I agree that proving YouTube user directly infringed will be easy and thus YouTube will likely be secondarily liable (putting aside a DMCA defense)...i just find that irrelevant to proving YouTube directly infringed.

The last paragraph of your comment above adequately states a case for direct infringement because they are all examples of actions YouTube takes in direct relation to the copyrighted works. My goal was to have the issue clarified, you've done so, everybody wins :)

In my opinion, Viacom will need a good direct liability claim if the DMCA shields YouTube from secondary liability...which I view as likely.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Ben: you might want to read Part II. Google's DMCA defense may not be as strong as many think it is. :)


about 8 years ago




You hit the nail glad you understood me (where I stand as an endpoint (user) and my fears (and valid reasons for them for legitimate content). That is explained down to earth what is really happening behind the curtains. further: I guess now it is like at the mercy of integrity. That is all bets on the majority on youtube being legal in contents. Possible thought is: Some users used youtube as an "excuse" (example: it is ok here) to upload copyrighted material. Since it is youtube, hiding under legal pretense that is what I'm starting to perceive. Going after the uploaders would have spared people that watch legitimate contents. Google can / may get punished because of users instead of the uploader perpetrator. Ouch that must hurt! But I'm no lawyer to think in lawyers shoes.

I'm keeping my fingers crossed that the ballot favors legitimate uploads in percentages.

P.S: The capatcha is clever accepts on second code word. Minor issue.

"12. Mts: I think you are still missing the point. This is not about forcing YouTube out of existence. It's about two things:

1. Determining whether or not YouTube's owner, Google, is liable for infringing upon Viacom's intellectual property rights.
2. Holding Google liable if it is found to have infringed Viacom's rights.

If you don't watch content produced by companies like Viacom, this really doesn't impact you. And if services like YouTube are capable of thriving because there are lots of people like you, their willingness to exercise their ability to police (to the fullest extent possible) the content uploaded by their users should not hamper their ability to succeed."

about 8 years ago



fears defined what i said as = legitimate concerns and fears. Otherwise i totally agree with you where copyrights stand. Agree = as think the same in the aspect of intellectual property.

about 8 years ago



Thanks for the link Drama :)
The difficulty will be in proving YouTube had the ability to control the infringement...clearly they profited from it, but profiting will not be enough. The standard for “ability to control” can't possibly mean that someone from YouTube has to actually watch every clip before it allowed uploading.

The policy arguments against making the copyright owner police their private rights are misplaced. Whether or not the DMCA strikes the right balance is irrelevant to this case.

As long as YouTube followed the notice and takedown provisions i believe they would prevail. But trust me, this won't be going to trial.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Ben: in Napster, the court found that Napster had not policed its system to the "fullest extent" possible.

Has YouTube? That's highly-debatable. Three rhetorical questions:

1. Why can't Google block searches that are highly-likely to be associated with material that infringes Viacom's rights? How much legitimate material would be blocked, for instance, if Google applied some limitations for searches related to terms like "The Daily Show" and "South Park"? Would such limitations be a reasonable means to reduce the harm done to Viacom?

2. How exactly has Google been so successful in preventing pornographic material from invading YouTube? It's claimed that users flag this content but I'd be surprised if Viacom didn't investigate this further as part of discovery.

3. How many takedown notices is Viacom supposed to send? If it informs Google that there are 30,000 videos, for instance, infringing its rights in the Daily Show and Google takes them down, is Viacom supposed to send more takedown notices when Google does nothing to prevent users from uploading them again?

Note that the DMCA requires that a takedown notice contain "Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material."

Has Google not been given more than enough information to identify and locate Viacom's material and has that information not permitted Google to see that this material is still available?

I do not believe that the courts are going to turn around and say "We're sorry, copyright holders. As long as Google removes 100,000 specific clips that violate your intellectual property rights, we'll allow them to go on responding one by one to future violations because the DMCA was designed to protect services that are little more than hubs for massive wholesale copyright infringement."

Courts instead often look at the intent of law and what is reasonable.

Two other points:

1. The requirements of the DMCA are not mutually exclusive. That is, if Google is found to have actual knowledge of infringement and/or is aware of the circumstances from which infringing activity is apparent, it cannot simply use the "well, we took down the content when sent a takedown notice" defense. It must meet *all* of the DMCA's requirements to qualify for the Safe Harbor.

2. As I've discussed, there is some question as to whether YouTube is a "service provider." The appeals court did not extend the "service provider" definition to Napster and Napster was arguably much more passive than YouTube.

Finally, I find it somewhat amusing that given the high profile of Viacom's lawsuit and the fact that so much material infringing Viacom's intellectual property rights is alleged to have been distributed via YouTube, so much of this material is still on YouTube.



The search results even suggest other terms ("the daily show", "daily show jon stewart", etc.).

I found it especially ironic that Google is serving up an AdWords advertisement (ostensibly paid for by Comedy Central/Viacom) for the Daily Show:


Google seems quite prepared to assume that my search made me a perfect target for an advertisement for the Daily Show yet doesn't seem quite prepared to assume that a search for "daily show" might lead me to popular content infringing the rights of a company that has sued it for $1bn.

Interesting double standard. One that I personally think a court is going to have a hard time believing is valid.

about 8 years ago



Answering questions is too much like work. :)

You seem to assume there is a duty to police, there is not.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Ben: one *simple* question: have you actually read the DMCA and the relevant court rulings?

The DMCA states:

"...does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity."

In Napster, the court wrote:

"Conversely, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files."

"Napster, however, also bears the burden of policing the system within the limits of the system."

Although fully decentralized peer-to-peer software maker Grokster was substantially different from YouTube because of its decentralized nature, some of the text from the Supreme Court's ruling in MGM v. Grokster is relevant:

"One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it."

"Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users’ activity, this evidence underscores their intentional facilitation of their users’ infringement."

We've had a great "conversation" on this topic but I suspect if you did a little more research on the subject matter, you might gain a more realistic perspective.

MGM v. Grokster:

"The tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability is the subject of this case. Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents’ software. When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement."

In Viacom's complaint, its attorneys note:

"In fact, Plaintiffs have identified more than 150,000 unauthorized clips of their copyrighted programming on YouTube that had been viewed an astounding 1.5 billion times. And that is only a small fraction of the content on YouTube that infringes Plaintiffs' copyrights, because as described below, YouTube prevents copyright owners from finding on the YouTube site all of the infringing works from which YouTube profits."

That's a lot of infringement and Viacom is only one of many copyright holders that has seen its content distributed without permission on YouTube. You connect the dots between the numbers and the Supreme Court's opinion in MGM v. Grokster.

I'll end this "conversation" by noting that if you read Viacom's actual complaint, read the relevant copyright laws and read relevant court decisions, you'll be able to figure out that Google's defense isn't as simple as "we're not required to police our service" and "we take down infringing videos when we're told about them."

about 8 years ago



This was my first time ever blogging, so I want to apologize for not taking the time to lay out my arguments...my job prevents me from doing so.

Ask yourself this, "If there is a duty to police, why would we need the whole notice and takedown system?" Right holders could just sue for failure to police.

about 8 years ago


Marcia Wilbur

Check out the Veoh case. Also, Napster defence won't hold. YouTube can and has removed content upon request.

Further, YouTube is in full compliance with the DMCA. The burden rests on Viacom to "protect" their copyright claims.

If YouTube loses, then Home Depot could be sued for selling a hammer that was used in a murder case...

about 7 years ago

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