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Corran Horn
Mar 13, 2007, 09:00 AM
yes, that's right $1 Billion Dollars

$$$$$ (http://today.reuters.com/news/articlenews.aspx?type=internetNews&storyid=2007-03-13T131722Z_01_WEN5351_RTRUKOC_0_US-VIACOM-YOUTUBE.xml&src=rss&rpc=22)

Wouldn't Dr. Evil be pleased?

-Corran Horn

whooleytoo
Mar 13, 2007, 09:24 AM
yes, that's right $1 Billion Dollars

$$$$$ (http://today.reuters.com/news/articlenews.aspx?type=internetNews&storyid=2007-03-13T131722Z_01_WEN5351_RTRUKOC_0_US-VIACOM-YOUTUBE.xml&src=rss&rpc=22)

Wouldn't Dr. Evil be pleased?

-Corran Horn

Bound to happen eventually.

The enormous amount of money paid for YouTube made little sense, considering it's biggest (only?) asset was the large number of users/amount of content. Unfortunately many of those users/much of that content are infringing on copyright.

Expect a fairly hefty settlement.

zephead
Mar 13, 2007, 10:20 AM
I don't see how it's Google's fault that their users are uploading copyrighted content onto YouTube. They explicitly state that copyrighted stuff is not to be uploaded, and they remove copyrighted stuff and delete the infringing users on sight. YouTube IS a user-driven community, after all.

I see how Dr. Evil would disagree with me though. :D

mattscott306
Mar 13, 2007, 10:23 AM
Meh, I forsee large settlement payments, and Youtube having to hire a larger monitoring staff, or possibly preview all videos before they post.

motulist
Mar 13, 2007, 10:24 AM
There's no merit to this case, it's just the result of the stupid copyright laws in this country. According to the law, if you don't vigorously go after people that might be violating your copyright, then you could lose your ownership of those properties. The only people that'll get paid from this lawsuit are the lawyers.

4nr-
Mar 13, 2007, 10:46 AM
Just another Hollywood attempt to control OUR internetz... Pathetic

dejo
Mar 13, 2007, 10:52 AM
...and they remove copyrighted stuff and delete the infringing users on sight....
Pretty much, they leave it up to the copyright owner to submit a complaint and then will remove the video. But if you think they are deleting infringing users on sight, you are not paying attention to the rampant amount of copyright violation that is taking place on YouTube.

whooleytoo
Mar 13, 2007, 11:41 AM
I don't see how it's Google's fault that their users are uploading copyrighted content onto YouTube. They explicitly state that copyrighted stuff is not to be uploaded, and they remove copyrighted stuff and delete the infringing users on sight. YouTube IS a user-driven community, after all.

I see how Dr. Evil would disagree with me though. :D

Google bought the site in full knowledge its value is largely due to the huge amount of copyrighted content on it (or, the large number of users uploading or viewing copyrighted content).

There's no way they'll get away with claiming ignorance or lack of culpability.

mkrishnan
Mar 13, 2007, 11:50 AM
I agree that Google has not acted in good faith and that what was allowed to continue on YouTube was clearly wrong, but...I think the longer term impact of this is the sea change. Just like Napster changed the way people looked for music and iTunes and the other legitimate services (heh, okay, iTunes period) have had to come back and offer a legal alternative... YouTube changed the way we look for video. Even though it's 99.99% crap, I still use it as my first source when someone says "hey, did you see that commercial?" etc. So ultimately the end of this has to be that consumers want a service like this. Google just has to figure out how to make it work within the confines of the law.

And if not Google... Joost is on their tail, as is Microsoft SoapBox. Developers, developers, developers, developers.

weldon
Mar 13, 2007, 11:56 AM
According to the law, if you don't vigorously go after people that might be violating your copyright, then you could lose your ownership of those properties. The only people that'll get paid from this lawsuit are the lawyers.
You're thinking of trademark law. If you don't defend the trademarks you use in commerce, you could lose your right to those trademarks. You can register trademarks to help protect them for your use.

You never lose your copyright to works that you create. They don't have to be registered or anything - your copyrights exist as soon as you create the work.

TheBobcat
Mar 13, 2007, 12:22 PM
God forbid someone catch a Daily Show sketch without Viacom getting $1.99 for it. Before you know it, Sumner Redstone will be in a cardboard box along some highway exit.

zblaxberg
Mar 13, 2007, 12:23 PM
now why doesn't this surprise me?

MacNut
Mar 13, 2007, 12:30 PM
This is the reason why CBS pulled out of the deal with YouTube. Now they can go back in and sue for some money.

evilgEEk
Mar 13, 2007, 12:49 PM
This is the reason why CBS pulled out of the deal with YouTube. Now they can go back in and sue for some money.

CBS is Viacom.

:)

MacNut
Mar 13, 2007, 12:57 PM
CBS is Viacom.

:)Yes and no, CBS and Viacom were spun off separate but are still owned by the same company.

GFLPraxis
Mar 13, 2007, 05:04 PM
I don't get it though. What can YouTube do?

That's like suing the city because drug dealers sell drugs while standing on city-owned sidewalks.

YouTube users are abusing the system to post pirated content. YouTube shuts them down as soon as it becomes aware of it. YouTube tells users not to. But there's no way they can prevent it, it's impossible.

nateDEEZY
Mar 13, 2007, 05:23 PM
Meh, add this to the ever growing pile of google lawsuits ;p

I think google has a possible chance in fighting this one off though...

mustard
Mar 14, 2007, 04:19 AM
I don't get it though. What can YouTube do?

That's like suing the city because drug dealers sell drugs while standing on city-owned sidewalks.

YouTube users are abusing the system to post pirated content. YouTube shuts them down as soon as it becomes aware of it. YouTube tells users not to. But there's no way they can prevent it, it's impossible.

Great Analogy - totally agree

sushi
Mar 14, 2007, 04:52 AM
I don't get it though. What can YouTube do?

That's like suing the city because drug dealers sell drugs while standing on city-owned sidewalks.

YouTube users are abusing the system to post pirated content. YouTube shuts them down as soon as it becomes aware of it. YouTube tells users not to. But there's no way they can prevent it, it's impossible.
Your analogy is good.

I do not understand how YouTube can be held accountable.

This will be an interesting case to follow.

motulist
Mar 14, 2007, 06:17 AM
You're thinking of trademark law. If you don't defend the trademarks you use in commerce, you could lose your right to those trademarks. You can register trademarks to help protect them for your use.

You never lose your copyright to works that you create. They don't have to be registered or anything - your copyrights exist as soon as you create the work.

You're right, I was thinking of trademark, not copyright. I always mix those two up.

zephead
Mar 14, 2007, 10:39 AM
I don't get it though. What can YouTube do?

That's like suing the city because drug dealers sell drugs while standing on city-owned sidewalks.

YouTube users are abusing the system to post pirated content. YouTube shuts them down as soon as it becomes aware of it. YouTube tells users not to. But there's no way they can prevent it, it's impossible.

Exactly what I was trying to say, except you worded it a bit better. :D

IJ Reilly
Mar 14, 2007, 10:56 AM
Your analogy is good.

I do not understand how YouTube can be held accountable.

Because Google/YouTube is profiting from the copyright infringements, which is why the analogy doesn't work. Google understood the risks when they bought YouTube. It's difficult to say how the suit would play out if it went to a verdict (the mostly untested DMCA being a critical factor), but I'll venture a guess that Viacom and Google come to an agreement to license and share revenue before it gets that far.

weldon
Mar 14, 2007, 11:15 AM
Because Google/YouTube is profiting from the copyright infringements, which is why the analogy doesn't work.
But they don't profit. GooTube doesn't place advertising on pages with content unless they have a specific licensing agreement in place with the content owner.

Google is going to rely on the "safe harbor" provisions of the DMCA for service providers. They will argue that they have no control or knowledge of what is posted on their site and that they act with all due haste when presented with a DMCA violation notice. Viacom will try to show that Google is aware of the copyright violations and that they are trying to obfuscate or hinder the ability of content providers to notify them of DMCA violations.

IJ Reilly
Mar 14, 2007, 11:40 AM
But they don't profit. GooTube doesn't place advertising on pages with content unless they have a specific licensing agreement in place with the content owner.

Google is going to rely on the "safe harbor" provisions of the DMCA for service providers. They will argue that they have no control or knowledge of what is posted on their site and that they act with all due haste when presented with a DMCA violation notice. Viacom will try to show that Google is aware of the copyright violations and that they are trying to obfuscate or hinder the ability of content providers to notify them of DMCA violations.

Advertising along with the videos is the default. If YouTube could, and did, prevent copyrighted material from being uploaded by non-owners, then Viacom would not have case against them. Any licensing agreed to by the content uploader isn't valid if they don't actually own the content. Even Google/YouTube acknowledges that they only remove infringing content at the request of the owner, meaning, from the time it's uploaded until the time it's deleted, YouTube is collecting advertising revenue from it. This is the basis of Viacom's suit. Of course Google has a counter-argument, but in the end, I don't think either side really wants to test any of the provisions of the DMCA.

MacNut
Mar 14, 2007, 12:37 PM
Your analogy is good.

I do not understand how YouTube can be held accountable.

This will be an interesting case to follow.Well Napster was just hosting the content too and that got shut down. The difference is Google is much bigger then Napster and will be able to fight it better.

To be honest I think this is a money grab by Viacom, Didn't they pull out of a deal with YouTube. Now they are going to claim that YouTube is stealing and they want a big pay out. I think this was a planned attack by Viacom.

IJ Reilly
Mar 14, 2007, 12:54 PM
Well Napster was just hosting the content too and that got shut down. The difference is Google is much bigger then Napster and will be able to fight it better.

To be honest I think this is a money grab by Viacom, Didn't they pull out of a deal with YouTube. Now they are going to claim that YouTube is stealing and they want a big pay out. I think this was a planned attack by Viacom.

Of course it's a "money grab." Business is a money grab.

Google is also a much bigger target than Napster. This was the subject of a lot of discussion when Google bought YouTube. Many people pooh-poohed Mark Cuban's observation that the only thing protecting YouTube from law suits was that they didn't have enough money to be worth going after, but that this would change if somebody big like Google bought them.

Nobody should be surprised by this suit. It was inevitable. Even Google must have known what would happen if they did not come to a licensing agreement with Viacom, and presumably every other entertainment company of significance. Outrage is the wrong way to react to this suit. These guys will come to an agreement out of court. The suit is leverage. Apple has been through this exercise many times.

weldon
Mar 14, 2007, 12:55 PM
Advertising along with the videos is the default.
I'm not a YouTube guru, but I don't see any advertising on the pages with the content. Can you point me to a video that does have advertising? I've seen a little in the category listing pages, but that's different that presenting ads next to the video being played.

If YouTube could, and did, prevent copyrighted material from being uploaded by non-owners, then Viacom would not have case against them.
No. If YouTube actively tries to find and remove copyrighted material they lose their "safe harbor" protections and are completely screwed. Their only defense is that they are a service provider only and are not responsible for what their users do without their knowledge.

Any licensing agreed to by the content uploader isn't valid if they don't actually own the content.
Duh. What do you think they do when they enter into licensing agreements? Sign a contract with any Tom, Dick, or Harry that walks in off the street for anything and everything they want to upload? Are you really suggesting that Google is signing content licensing deals without verifying ownership, or requiring the partner to make an asssertion that they hold copyright?

Even Google/YouTube acknowledges that they only remove infringing content at the request of the owner, meaning, from the time it's uploaded until the time it's deleted, YouTube is collecting advertising revenue from it. This is the basis of Viacom's suit. Of course Google has a counter-argument, but in the end, I don't think either side really wants to test any of the provisions of the DMCA.
YouTube *has* to only remove infringing content at the request of the owner. As soon as they start to do it on their own, proactively, they lose "safe harbor" status and are responsible for every bit of content on the site.

As for advertising revenue, I just don't see any on the video pages (there is some on the category listing pages). Even on the partner pages (that have licensed content) I don't see advertising.

Still, Viacom's suit isn't about advertising revenue. It's about copyright infringement.

weldon
Mar 14, 2007, 01:03 PM
Well Napster was just hosting the content too and that got shut down. The difference is Google is much bigger then Napster and will be able to fight it better.
Napster got caught because they were fully aware of all the copyright infringement going on and had discussed it in great detail in internal meetings and emails. This was enough for the courts to decide that they didn't meet the requirements for the "safe harbor" provision in the DMCA. YouTube's only chance is to show that they are trying to prevent copyright infringement when they are made aware of it.

If Viacom's lawyers are able to show that YouTube was fully aware of infringing materials and DID NOTHING ABOUT IT, then Viacom will walk home with a huge check in their pocket. If Google's lawyers can show that YouTube took action whenever they were made aware of infringing materials then they have a chance to be acquitted.

IJ Reilly
Mar 14, 2007, 01:10 PM
I'm not a YouTube guru, but I don't see any advertising on the pages with the content. Can you point me to a video that does have advertising? I've seen a little in the category listing pages, but that's different that presenting ads next to the video being played.

I see an advertising block on every video I've ever watched on YouTube.

No. If YouTube actively tries to find and remove copyrighted material they lose their "safe harbor" protections and are completely screwed. Their only defense is that they are a service provider only and are not responsible for what their users do without their knowledge.

This may be Google's argument, but nobody knows if it's a winner. My point is that neither side really wants to find out.

Duh. What do you think they do when they enter into licensing agreements? Sign a contract with any Tom, Dick, or Harry that walks in off the street for anything and everything they want to upload? Are you really suggesting that Google is signing content licensing deals without verifying ownership, or requiring the partner to make an asssertion that they hold copyright?

No. I've never uploaded a video to YouTube, but I presume that anyone who does must state that they aren't violating copyrights.

YouTube *has* to only remove infringing content at the request of the owner. As soon as they start to do it on their own, proactively, they lose "safe harbor" status and are responsible for every bit of content on the site.

As for advertising revenue, I just don't see any on the video pages (there is some on the category listing pages). Even on the partner pages (that have licensed content) I don't see advertising.

Still, Viacom's suit isn't about advertising revenue. It's about copyright infringement.

It's about both.

Viacom files $1-billion suit over YouTube

With a $1-billion lawsuit, Viacom Inc. is aiming to upend Google Inc.'s plan to change the way people watch TV and movies.

Viacom, which owns MTV Networks and Paramount Pictures, sued Google in federal court Tuesday, accusing the Internet company of "brazenly exploiting" the power of the Web to make easy money off Hollywood's hard work.

Google's YouTube video-sharing service has "deliberately chosen not to take reasonable precautions" to stop users from posting unauthorized clips of shows including "SpongeBob SquarePants" and "South Park" and movies such as "An Inconvenient Truth," the suit says. "YouTube profits handsomely from the presence of the infringing works on its site."

Viacom isn't the only old-media company with that opinion. Several book publishers and news agencies have sued Google for alleged copyright infringement, though none has Viacom's deep pockets or fighting instincts.

Until recently, Viacom was one of several companies struggling to reach deals that would allow them to share in the YouTube advertising revenue that their shows generate. NBC Universal recently sent a letter warning that Google should better protect copyrighted material.

"Everybody recognizes litigation is not a particularly desirable business outcome," NBC Universal General Counsel Richard Cotton said in an interview before the Viacom suit was filed. "What you have is everybody going the last mile to try to find a constructive business solution. But I guess what I would say is this is the last mile."

...

The Mountain View, Calif., company has become both friend and foe of TV networks, newspapers and other traditional media companies. They crave the traffic Google can direct to their websites but fret that it's making so much money off their material.

...

"When YouTube was a fun start-up that wasn't monetizing the content, I was fine with it," said Ben Silverman, executive producer behind such popular shows as "The Office" on NBC and "Ugly Betty" on ABC. "But the moment they sold themselves for $1.6 billion and became a service that was making money off other people's content, the game changed."

...

The video-sharing site reaped only $15 million in revenue for 2006 — roughly the same amount broadcast networks typically collect in advertising in one night. But TV executives resented that their shows had helped make multimillionaires of YouTube's young founders, Chad Hurley, Steve Chen and Jawed Karim.

They also feared that YouTube would disrupt their advertising business by becoming the gatekeeper between online viewers and TV programming.

NBC went full circle: from demanding the removal of "Lazy Sunday" and other NBC clips, to striking a broad promotional partnership, to once again considering legal action.

The company declined to comment Tuesday.

Legal analysts said the case would test the Digital Millennium Copyright Act, a 1998 law that shields Internet service providers from liability for material their users post online. To qualify for protection, service providers must remove unauthorized material when notified of its presence by copyright holders.

YouTube has long maintained that it is protected because it immediately removes copyrighted video when notified.

"We feel it's a very clear law," said Glenn Brown, Google product counsel. "It makes clear that sites like YouTube basically enjoy this safe harbor, providing they make this removal process easy for content owners to make a choice about what they want to do with their content."

But Greg Gabriel, a Santa Monica entertainment lawyer, said YouTube was stretching the boundaries of the safe harbor provision, which was intended to protect Internet service providers that wouldn't know that infringing materials were on a website unless notified.

"This is where YouTube is in trouble," he said. "You can't even log on to YouTube's Web page without seeing a half-dozen infringing clips."

The stakes are incredibly high in the fight, San Francisco intellectual property lawyer Annette Hurst said. The outcome could tilt the balance between allowing technology to flourish and protecting the creative community's interests.

"Google is probably the only company that could have bought YouTube," she said. "They had an already-existing business model not premised on infringement. And they were the only ones who could afford to take a risk."

http://www.latimes.com/business/la-fi-viacom14mar14,1,2094816.story

weldon
Mar 14, 2007, 01:22 PM
I see an advertising block on every video I've ever watched on YouTube.
Right, but only the licensed content pages show *paid* advertising. Every other page shows links to other aspects of the YouTube site. I haven't spent hours looking around, but show me a link if you find something different.
No. I've never uploaded a video to YouTube, but I presume that anyone who does must state that they aren't violating copyrights.
That's very different than the licensed content deals that YouTube makes. The user-generated content isn't shown with advertising. The licensed content is shown with paid advertising.
It's about both.
Not really. The advertising isn't the basis of the lawsuit, copyright infringement is. If they can't prove infringing use, then nothing else matters. If they can prove infringing use, then YouTube is still safe if they can qualify for the "safe harbor" provisions. The advertising only comes into play as one aspect of how YouTube might not qualify for the "safe harbor" provisions.

dejo
Mar 14, 2007, 01:23 PM
I've never uploaded a video to YouTube, but I presume that anyone who does must state that they aren't violating copyrights.
Your presumption is correct!

smueboy
Mar 14, 2007, 01:50 PM
To be honest I think this is a money grab by Viacom, Didn't they pull out of a deal with YouTube. Now they are going to claim that YouTube is stealing and they want a big pay out. I think this was a planned attack by Viacom.

I agree - it's publicity and money for Viacom.

IJ Reilly
Mar 14, 2007, 02:08 PM
Right, but only the licensed content pages show *paid* advertising. Every other page shows links to other aspects of the YouTube site. I haven't spent hours looking around, but show me a link if you find something different.

True, apparently.

That's very different than the licensed content deals that YouTube makes. The user-generated content isn't shown with advertising. The licensed content is shown with paid advertising.

I'm not saying it is the same. Viacom and Google have evidently been in talks to license uploaded content, but haven't succeeded in hammering out a deal. This suit is designed to move the process forward. I'm predicting that it will, and the suit will go away.

Not really. The advertising isn't the basis of the lawsuit, copyright infringement is. If they can't prove infringing use, then nothing else matters. If they can prove infringing use, then YouTube is still safe if they can qualify for the "safe harbor" provisions. The advertising only comes into play as one aspect of how YouTube might not qualify for the "safe harbor" provisions.

I understand, but according to the article I posted, it really is about both issues.

Your presumption is correct!

Thanks, as I imagined.

weldon
Mar 14, 2007, 03:15 PM
I'm not saying it is the same.
But you were. You were trying to argue that YouTube makes money from content when, in fact, they don't place advertising with user-generated content. Maybe you are confused about the difference between the content licensing deals I was talking about and the regular user TOS.

Viacom and Google have evidently been in talks to license uploaded content, but haven't succeeded in hammering out a deal. This suit is designed to move the process forward. I'm predicting that it will, and the suit will go away.
Perhaps it will move the licensing deal, but I don't think that's the whole picture. They can get a licensing deal and still win the lawsuit and collect billions of dollars. If Viacom thinks that they can win the lawsuit, do you think they'll drop it just to enter into a multi-million dollar revenue sharing agreement when they could collect billions?

I understand, but according to the article I posted, it really is about both issues.
You're talking about something different here. Of course advertising is *related* to content, but it's not the basis of the lawsuit. The article mentions advertising in two ways: a content licensing deal with revenue sharing (when YouTube places paid ads next to licensed content) and the potential for YouTube to disrupt network advertising if YouTube draws viewers away from their channel. Neither of those issues really have anything to do with YouTube's alleged misconduct.

Viacom is not suing YouTube over advertising.

IJ Reilly
Mar 14, 2007, 03:38 PM
But you were. You were trying to argue that YouTube makes money from content when, in fact, they don't place advertising with user-generated content. Maybe you are confused about the difference between the content licensing deals I was talking about and the regular user TOS.

No, I was trying to make a distinction between the two. Sorry if that wasn't clear.

Perhaps it will move the licensing deal, but I don't think that's the whole picture. They can get a licensing deal and still win the lawsuit and collect billions of dollars. If Viacom thinks that they can win the lawsuit, do you think they'll drop it just to enter into a multi-million dollar revenue sharing agreement when they could collect billions?

Your guess is as good as mine, but based upon the quotes in the article, I conclude it's more about leverage. I believe that neither Google nor Viacom really want to have this matter decided in court, if only because these laws are relatively untested, and either side could lose and lose big. Unnecessary risk is a bad thing, and most corporations will avoid it if possible. In this case, both companies want a licensing deal, so I think that is where they will end up. You might as well ask why Cisco dropped their trademark infringement suit against Apple, if they could have taken Apple to the cleaners. The answer is that winning is a far from certain outcome, and that wasn't really what they were after anyway.

Like it or not, lawsuits are one of the methods corporations use to communicate with each other. They come and go with the tide. It doesn't pay to put a lot of stock in many of them.

You're talking about something different here. Of course advertising is *related* to content, but it's not the basis of the lawsuit. The article mentions advertising in two ways: a content licensing deal with revenue sharing (when YouTube places paid ads next to licensed content) and the potential for YouTube to disrupt network advertising if YouTube draws viewers away from their channel. Neither of those issues really have anything to do with YouTube's alleged misconduct.

Viacom is not suing YouTube over advertising.

I never said they were. We could argue over the difference between "basis" and "about" all day long and get nowhere -- at least not anywhere enlightening or interesting. So let's not. ;)

weldon
Mar 14, 2007, 04:14 PM
No, I was trying to make a distinction between the two. Sorry if that wasn't clear.
Yeah, it wasn't. Especially when you mix the two like you did here...

If YouTube could, and did, prevent copyrighted material from being uploaded by non-owners, then Viacom would not have case against them. Any licensing agreed to by the content uploader isn't valid if they don't actually own the content. Even Google/YouTube acknowledges that they only remove infringing content at the request of the owner, meaning, from the time it's uploaded until the time it's deleted, YouTube is collecting advertising revenue from it. This is the basis of Viacom's suit.

The above statement is what I'm trying to correct. YouTube is not collecting advertising revenue from non-licensed content. And YouTube's advertising is not the basis of Viacom's suit.

Furthermore, if YouTube could, and did, prevent copyrighted material from being uploaded - that would only strengthen Viacom's case, not make it invalid. They have to rely on the "safe harbor" which requires they *don't* monitor content but remove it when notified.

I never said they were [suing them over advertising].
Well, you did in the quote above :rolleyes:

We could argue over the difference between "basis" and "about" all day long and get nowhere -- at least not anywhere enlightening or interesting. So let's not. ;)
OK. I'm not arguing for a difference between the two. The suit isn't "about" advertising. Better? :p I was trying to give you some credit that advertising is somewhat tangentially related to the motivations behind the suit. But it's still not related to finding YouTube guilty.

Really, it boils down to the idea that I'm trying to correct the misconception that advertising or profit have anything to do with determining copyright infringement. It doesn't matter if YouTube has ads or not - what matters is that their user community is using the site to violate copyrights. If YouTube is found to be complicit in these violations, they are going to lose a lot of money.

Let's move on to another topic...

I believe that neither Google nor Viacom really want to have this matter decided in court, if only because these laws are relatively untested, and either side could lose and lose big.
Ignoring that DMCA has been tested in court several times, how do you think Viacom could "lose big" in this situation? I'm not sure I see a downside for them.

mcarnes
Mar 14, 2007, 04:16 PM
Maybe this will pave the way for ebay to be sued for all of it's scam auctions. That would be cool.

IJ Reilly
Mar 14, 2007, 04:59 PM
Well, you did in the quote above :rolleyes:

Actually, that was not my point. But if you say it was, then it must have been. (:rolleyes: yourself)

OK. I'm not arguing for a difference between the two. The suit isn't "about" advertising. Better? :p I was trying to give you some credit that advertising is somewhat tangentially related to the motivations behind the suit. But it's still not related to finding YouTube guilty.

Really, it boils down to the idea that I'm trying to correct the misconception that advertising or profit have anything to do with determining copyright infringement. It doesn't matter if YouTube has ads or not - what matters is that their user community is using the site to violate copyrights. If YouTube is found to be complicit in these violations, they are going to lose a lot of money.

Who has this misconception? Maybe it's Viacom, which specifically mentions YouTube profiting from Viacom's copyrighted materials in their lawsuit. I haven't claimed that profiting is the actual basis for determining lability, but in a lawsuit (this is not a criminal case!) Viacom must demonstrate that they've been damaged somehow. Apparently, and from their own words, they are preparing to show that YouTube has monetized their copyrighted content in some fashion. I didn't come up with this idea -- Viacom did, in their suit.

Let's move on to another topic...

Ignoring that DMCA has been tested in court several times, how do you think Viacom could "lose big" in this situation? I'm not sure I see a downside for them.

In one way you've already mentioned: that YouTube successfully asserts safe harbor. That would be a big loss for Viacom -- and everybody else in the entertainment business as well. I can add a couple additional potential risks. The first is they end up at protracted loggerheads with Google, don't get a licensing deal, which the entertainment companies including Viacom really seem to want, and lose access to YouTube and its growing audience. The third is an opportunity cost resulting from easily years of litigation, in which they might not even prevail.

I will note again that Viacom apparently sued only after licensing talks broke down. If their interests amounted strictly to reaming money out of Google, then they would have sued without talking licensing first.

weldon
Mar 14, 2007, 06:26 PM
Actually, that was not my point. But if you say it was, then it must have been. (:rolleyes: yourself)
Sorry. How else was I supposed to understand, "...YouTube is collecting advertising revenue from it. This is the basis of Viacom's suit."

Who has this misconception? Maybe it's Viacom, which specifically mentions YouTube profiting from Viacom's copyrighted materials in their lawsuit. I haven't claimed that profiting is the actual basis for determining lability, but in a lawsuit (this is not a criminal case!) Viacom must demonstrate that they've been damaged somehow. Apparently, and from their own words, they are preparing to show that YouTube has monetized their copyrighted content in some fashion. I didn't come up with this idea -- Viacom did, in their suit.
Sorry again, but I disagree with the way you've interpreted those quotes. Yes, Viacom mentions that YouTube has made money (by selling themselves to Google) but this doesn't have anything to do with advertising on YouTube. And it doesn't have anything to do with damages to Viacom. Viacom doesn't have to prove that YouTube has monetized anything. They just have to show that their use of Viacom copyrights is unauthorized.

Here's the quote from Viacom's press release...

Viacom Inc. (NYSE: VIA and VIA.B) today announced that it has sued YouTube and Google in U.S. District Court for the Southern District of New York for massive intentional copyright infringement of Viacom’s entertainment properties.
The suit is about copyright infringement, and proving copyright infringement doesn't depend on proving profit making.

The whole mention of monetizing YouTube and profiting from content is posturing on Viacom's part to garner sympathy, not a legal argument.

In one way you've already mentioned: that YouTube successfully asserts safe harbor. That would be a big loss for Viacom -- and everybody else in the entertainment business as well.
The safe harbor provision is a pain for big media companies, but do they lose big here? The situation actually stays the same (at least until media lobbyists get the law changed to suit them). They tell YouTube to take stuff down, and YouTube takes it down. They surely want to restrict safe harbor even further, and I'm sure they're working with their lobbyists to make that happen. So it will only be a problem until they change the law (and I think that they can get that done if they want to).

I can add a couple additional potential risks. The first is they end up at protracted loggerheads with Google, don't get a licensing deal, which the entertainment companies including Viacom really seem to want, and lose access to YouTube and its growing audience. The third is an opportunity cost resulting from easily years of litigation, in which they might not even prevail.
Good ideas, and you raise points worth discussing. Viacom probably does want to push their content in front of lots of people (including those on YouTube). And they will spend a lot of money on litigation. But I'm not sure that Viacom will "lose big" in those scenarios. YouTube will definitely "lose big" though. The audience will go to where the content is. Joost and others will win because they have licensed content that people want to watch.

Somebody at Viacom is weighing millions of dollars in litigation costs against the potential of billions of dollars in awards from the lawsuit.

I will note again that Viacom apparently sued only after licensing talks broke down. If their interests amounted strictly to reaming money out of Google, then they would have sued without talking licensing first.
I'll go with that. I just think that now that they have decided to pursue the lawsuit, they might continue to do so if they think they can win, regardless of any future licensing deal with YouTube.

I also think they're trying to get the DMCA changed so that there are more restrictions on the "safe harbor" provisions. Right now, Viacom has to police their content and they want to offload that burden to others.

ChrisA
Mar 14, 2007, 07:26 PM
I don't get it though. What can YouTube do?

That's like suing the city because drug dealers sell drugs while standing on city-owned sidewalks.

YouTube users are abusing the system to post pirated content. YouTube shuts them down as soon as it becomes aware of it. YouTube tells users not to. But there's no way they can prevent it, it's impossible.

This analogy is close but not perfect. Make one change. Let's say it is not "city-owned sidewalks". Let's say there were drug as Disneyland selling on "Disney owned sidewalk"

Now Disney says they chace these guys out of the park when ever they are told about them but everyone knows that yu have to pay $30 to get in and the drug dealers are attracting customers who pay to get in. Now some one might argue the Disney is not really working to hard because the dealers are drawing a bit of a crowd into the park.

So it's the same with Google. They will take down a video if asked but they don't work very hard at it because the pirated material brings in "page views" and therefore ad revenue.

If Google really cared they'd hire 1,000 people to constantly scan and search for pirated material and instantly delete it and terminate the account of the person who posted it.

What Google is doing is akin the "check kiteing" That's where you write a bad check and desopite it and cover that check with another bad check and keep the accound "full" be using an endless cycle of "fake money" all the while earning interest in the account. Google attracts an endless cycle of pirated video that lasts some number of days before it is taken down but by having it for several days they get the money from the page views. Even if EVERY video is taken down in 24 hours Google stil gets the page views.

Google could fix this by having some kind of approval process where a video has to be reviewed before it is made public. Without this it's a check kite scam.

JMax1
Mar 14, 2007, 08:38 PM
I hate to be the devil's advocate....

but it IS illegal after all.... And Google does OWN the servers that THEIR website runs, right? It's just asking for trouble. It's like saying to a pyromaniac "I'm going to put these matches right next to you and if you use them it's not my fault because I put the matches there"

It was bound to happen

IJ Reilly
Mar 15, 2007, 12:28 AM
Sorry again, but I disagree with the way you've interpreted those quotes. Yes, Viacom mentions that YouTube has made money (by selling themselves to Google) but this doesn't have anything to do with advertising on YouTube. And it doesn't have anything to do with damages to Viacom. Viacom doesn't have to prove that YouTube has monetized anything. They just have to show that their use of Viacom copyrights is unauthorized.

Not quite, apparently. It's kind of difficult to misinterpret the statement: "YouTube profits handsomely from the presence of the infringing works on its site."

The whole mention of monetizing YouTube and profiting from content is posturing on Viacom's part to garner sympathy, not a legal argument.

Now this strictly your opinion, and I don't see how you can possibly back it up with facts. Law suits are not filed to garner sympathy. Surely you know that. Further, Viacom can prove copyright infringement all day and night, but if they can't demonstrate that they were harmed, then they stand to collect approximately $0 in damages, not $1 billion.

Good ideas, and you raise points worth discussing. Viacom probably does want to push their content in front of lots of people (including those on YouTube). And they will spend a lot of money on litigation. But I'm not sure that Viacom will "lose big" in those scenarios. YouTube will definitely "lose big" though. The audience will go to where the content is. Joost and others will win because they have licensed content that people want to watch.

Obviously Google has to consider both sides of their own ledger too. Both companies stand to lose if they try to settle their differences in court. I'm predicting that in the end, they won't. We'll see where this lawsuit goes over the next month.

weldon
Mar 15, 2007, 01:11 AM
Not quite, apparently. It's kind of difficult to misinterpret the statement: "YouTube profits handsomely from the presence of the infringing works on its site."
I'm not misinterpreting it. I'm just saying it's ancillary to their legal argument. The court case is about copyright infringement. Viacom mentions YouTube's profits in the *press release* that announces the lawsuit (which they say is about copyright infringement). To prove there was infringement, they don't have to prove that YouTube made any money.
Now this strictly your opinion, and I don't see how you can possibly back it up with facts. Law suits are not filed to garner sympathy. Surely you know that.
I know that Title 17 says that you don't have to prove commercial gain to win a copyright infringement suit. It's pretty plain in the code, so I think that fact backs up my opinion pretty well. My point is that the statement about YouTube's profits is meant to make Viacom appear more sympathetic. It is not part of determining if YouTube infringed on their copyrights or not.
Further, Viacom can prove copyright infringement all day and night, but if they can't demonstrate that they were harmed, then they stand to collect approximately $0 in damages, not $1 billion.
This is flat out wrong and I suspect the source of a lot of your confusion on this issue. If they prove infringement, they have proved there was harm to their business. The total amount of monetary relief is determined by Title 17 and the DMCA. Even if there are no actual monetary damages to Viacom, they can still collect statutory damages for each infringing use. But I'm pretty sure that they'll be able to show actual damages from lost advertising revenue on their channels, lost DVD sales, etc. Profits made by the infringer can be *added* to the awards *on top of* damages to the copyright holder. But they don't have to prove profits to win or to collect damages, and they probably don't care to since there are no profits at YouTube.

Again, it doesn't matter one bit if YouTube made money on Viacom's content. If YouTube is found to have willfully infringed on Viacom's copyrights, then they will lose the case. The amount of damages would be determined by Title 17 and the DMCA and will be based on costs, attorney fees, actual damages, statutory damages, and any additional penalties for repeated willful violations.

I'm curious, did I misrepresent your statement that the lawsuit was about YouTube making a profit on advertising?

EricNau
Mar 15, 2007, 01:42 AM
Now where can I nominate ebay for the next lawsuit? (And trust me, if I could I would!)

weldon
Mar 15, 2007, 02:11 AM
but it IS illegal after all.... And Google does OWN the servers that THEIR website runs, right? It's just asking for trouble. It's like saying to a pyromaniac "I'm going to put these matches right next to you and if you use them it's not my fault because I put the matches there"
Absolutely right. Any unauthorized use is illegal and Google must remove such content. The heart of the matter is whether or not Google/YouTube qualifies as a service provider or not. If they are a service provider, they are not liable for what their users do with the content, as long as they act quickly when presented with a "take down notice" from the copyright holder. This is how Google is going to respond to the suit.

The "safe harbor" for service providers was meant to protect ISP's and hosting companies that truly have no knowledge of what their users are hosting on their web space, sending in email, etc. YouTube is really pushing the boundaries of what could be considered a service provider. On one hand, they do allow users to post their own content, but on the other hand, they actively search, index, and present that content to others. They have editors that go through all the posted videos to find interesting things to put on the home page, etc.

For comparison, Napster also argued that they were just providing a service for people to use. Part of their problem was that they maintained a central server with listings of all the albums and tracks available through their service. Newer p2p networks are decentralized to avoid this issue. YouTube also has a central listing of all the content, making them easier to go after. This will probably work against them because it's easier to show that they are involved with the content and are aware of what is happening.

When presented with "take down" notices, Napster did nothing. This got them in big trouble with Metallica and Dr. Dre. YouTube has been pretty good about removing content when presented with a take-down notice. This will likely work in YouTube's favor.

weldon
Mar 15, 2007, 02:13 AM
Now where can I nominate ebay for the next lawsuit? (And trust me, if I could I would!)
Lots of people have tried to sue eBay. So far, they have been pretty successful by claiming they fall under the safe harbor provisions and by responding to take down notices quickly.

IJ Reilly
Mar 15, 2007, 10:46 AM
I'm not misinterpreting it. I'm just saying it's ancillary to their legal argument. The court case is about copyright infringement. Viacom mentions YouTube's profits in the *press release* that announces the lawsuit (which they say is about copyright infringement). To prove there was infringement, they don't have to prove that YouTube made any money.

I know that Title 17 says that you don't have to prove commercial gain to win a copyright infringement suit. It's pretty plain in the code, so I think that fact backs up my opinion pretty well. My point is that the statement about YouTube's profits is meant to make Viacom appear more sympathetic. It is not part of determining if YouTube infringed on their copyrights or not.

Has the full text of the lawsuit been released? I don't think it has. If Viacom hopes to prove $1 billion in damages in court, then they'd better be able to present some hard evidence of actual loss. I think we both agree that this is going to be a very difficult task, given that by all accounts, Google has been fastidious in conforming to the safe harbor provisions of the DMCA. Neither one of us really know what legal theory Viacom believes they've got on their side.

This is flat out wrong and I suspect the source of a lot of your confusion on this issue. If they prove infringement, they have proved there was harm to their business. The total amount of monetary relief is determined by Title 17 and the DMCA. Even if there are no actual monetary damages to Viacom, they can still collect statutory damages for each infringing use. But I'm pretty sure that they'll be able to show actual damages from lost advertising revenue on their channels, lost DVD sales, etc. Profits made by the infringer can be *added* to the awards *on top of* damages to the copyright holder. But they don't have to prove profits to win or to collect damages, and they probably don't care to since there are no profits at YouTube.

Again, it doesn't matter one bit if YouTube made money on Viacom's content. If YouTube is found to have willfully infringed on Viacom's copyrights, then they will lose the case. The amount of damages would be determined by Title 17 and the DMCA and will be based on costs, attorney fees, actual damages, statutory damages, and any additional penalties for repeated willful violations.

I've read Title 17 and don't find this language. It speaks very little of damages and not at all of penalties. But again, neither of us really know what legal theory Viacom hopes to exploit, so this is really a debate about very little of substance. I will stick by my prediction that it won't get that far because neither Google nor Viacom really wants to litigate this issue. What prediction are you willing to make?

I'm curious, did I misrepresent your statement that the lawsuit was about YouTube making a profit on advertising?

I'm not going to explain this again.

weldon
Mar 15, 2007, 01:45 PM
Has the full text of the lawsuit been released? I don't think it has.
I've read the complaint myself, even if you haven't. Copyright infringement doesn't depend on profit making. And you're still confusing YouTube's profit with Viacom's damages.

I've probably gone overboard in trying to separate YouTube's profits from the infringement, but they can be guilty of infringement without making a profit (and they haven't made a profit). What Viacom is talking about in the quotes you've brought out are that YouTube is benefitting from the presence of infringing content and this disqualifies them from the safe harbor. Again, if they made a profit on advertising doesn't matter.

If Viacom hopes to prove $1 billion in damages in court, then they'd better be able to present some hard evidence of actual loss.[in response to my assertion that it doesn't matter if YouTube made a profit or not]
Again, you are flat out wrong here. Viacom's damages are unrelated to YouTube's profits. It's based on lost revenue from the 150,000+ clips that have been viewed 1.5 billion times.

I think we both agree that this is going to be a very difficult task, given that by all accounts, Google has been fastidious in conforming to the safe harbor provisions of the DMCA.
One of the counter-arguments to YouTube's assertions is that Google provides tools for finding infringing content to licensed content partners, but non-partners only have the public search interface available to help find infringing content. Another is that Google proactively searches for and removes XXX content, but doesn't do the same for copyrighted content.

I think Google has a good chance to win on this point because they have tried to meet the requirements. We'll see if they did enough. In either case, I expect the court to order them to make some changes like making the tools available to everyone under some RAND license.

Neither one of us really know what legal theory Viacom believes they've got on their side.
I think it's pretty clear. What does get complicated is proving that YouTube is complicit in the infringement. They could get lucky in discovery and find the "smoking gun" in an email exchange or meeting minutes or something that shows that YouTube was fully aware of infringement and did nothing about it.

I've read Title 17 and don't find this language. It speaks very little of damages and not at all of penalties.
"...the copyright owner’s actual damages and any additional profits of the infringer..." should be understood to mean that actual damages and profits of the infringer are separate items and are evaluated independently and then added together to arrive at the total liability. It's a little more clear in the legal complaint where it refers to damages *plus* any profits.

The additional penalties I was referring to come into play when the court finds ongoing willful violations and the court then has the option to triple the liability.
I will stick by my prediction that it won't get that far because neither Google nor Viacom really wants to litigate this issue. What prediction are you willing to make?
You've got a good point that the entertainment industry likes to litigate during negotiations and Google doesn't want a long drawn-out legal battle. But I don't think Viacom has anything to lose by pursuing the case. If they lose, they're stuck where they are now with having to watch YouTube for infringing content themselves. If they win, they destroy YouTube (how many suits will be filed the day after Viacom wins?) and thus get to fill the vacuum with their own web site and licensed partners like Joost. It gives them an important precedent to go after any other site that has unauthorized content on it.

In the end, I predict that, regardless of the outcome of this lawsuit, Google will try to make changes to show they are trying to comply with the DMCA as best they can to try and qualify for safe harbor status. This will make the site more difficult to use for normal people, the crowd will flock elsewhere, significant shareholder value will be destroyed, and Google will end up with little to nothing for their huge investment in YouTube.

If I'm going to make a prediction, I might as well be bold, right? :)

IJ Reilly
Mar 15, 2007, 06:52 PM
Advertising revenue is mentioned numerous times in the complaint. Here is only one of the instances:

Defendants profit handsomely from the infringement of Plaintiffs’ copyrighted works, and receive financial benefits directly attributable to the infringing activity. YouTube has built an infringement-driven business by exploiting the popularity of Plaintiffs’ copyrighted works (and the works of other copyright owners) to draw millions of users to its website. YouTube derives advertising revenue directly attributable to the infringing works, because advertisers pay YouTube to display banner advertising to users whenever they log on to, search for, and view infringing videos. Through the embed function and in other ways, infringing videos also draw users to YouTube’s site in the first instance, and YouTube then derives additional advertising revenue when those users search for and watch other videos on the site. In either event, there is a direct causal connection between the presence of infringing videos and YouTube’s income from the additional “eyeballs” viewing advertising on the site. The draw of infringing works has also made an enormous contribution to the explosive growth of YouTube, resulting in the remarkable $1.65 billion valuation Google placed on it only a short time after its founding. Thus,

infringement of Plaintiffs’ works contributes substantially and directly to the value of YouTube’s business.

BTW, if anyone would like to read the full text of the lawsuit, it can be found here:

http://online.wsj.com/public/resources/documents/ViacomYouTubeComplaint3-12-07.pdf

music4relief
Mar 21, 2007, 03:59 PM
I highly doubt Viacom will win this lawsuit considering youtube isn't actually selling the material that is posted up on their site.

weldon
Mar 22, 2007, 02:14 AM
I highly doubt Viacom will win this lawsuit considering youtube isn't actually selling the material that is posted up on their site.
Unfortunately for YouTube, that isn't a defense. It doesn't matter if they sell content, just as it doesn't matter if they have advertising.

@IJ Reilly - I've been out of town, but I see you found the lawsuit. Again, don't be distracted by the mentions of advertising revenue. What's really important is that they have infringing content on their site. The ad revenue goes to "direct benefit" which is one of several ways in which YouTube can be disqualified from the safe harbor provisions in the DMCA. I'm pretty sure they will be disqualified because the "service provider" definitions that mark out the boundaries of the safe harbor in the first place aren't broad enough to include a YouTube-like service. They're also going to get nailed for the editorial review of content on the site which shows that they are aware of what users are doing. I also suspect that they'll get reprimanded for not making the automated tools available under a RAND license regardless of content licensing partnerships.

All the language about "profiting handsomely" is meant to persuade that Viacom is being abused by a big, rich Internet giant that built wealth on the backs of legitimate companies like Viacom. At best, it is one data point that the courts could consider in examining the safe harbor provisions, but I don't think it will be the only thing, or even the main thing, that disqualifies YouTube.

IJ Reilly
Mar 22, 2007, 10:55 AM
@IJ Reilly - I've been out of town, but I see you found the lawsuit. Again, don't be distracted by the mentions of advertising revenue.

No thanks to you. :rolleyes: And you're still a long way from making a convincing argument that the references to advertising revenue in the suit are a "distraction."

Anyway, a good commentary on this lawsuit appeared in the LA Times over the weekend. In part:

Viacom vs. 800-pound Google

Media companies sued the Napsters of the Web out of business, but the Internet search giant is a different beast.

By Fred Vogelstein
FRED VOGELSTEIN is a contributing editor at Wired magazine.

I LOVED NAPSTER. I listened to music more because of it. I bought more music because of it. And I count myself among the many who would have gladly paid $20 a month for the privilege to keep using it. ITunes is great, but Napster combined whimsy, variety and convenience in perfect combination. Tough luck for me. The courts, pushed by the recording industry, decided that what I, and many music consumers, wanted was against the law. Napster was being used to steal and illegally share music. That's wrong. So they sued it out of existence.

So when Viacom decided to sue Google last week for the sins of YouTube, its prize online video acquisition, I was tempted to think: "Here we go again." Viacom owns the Paramount and DreamWorks movie studios, and the MTV, Comedy Central, VH1 and Nickelodeon cable channels. It's angry that a lot of its video content — specifically, many episodes of "The Daily Show," "The Colbert Report" and "South Park" — is showing up unauthorized on YouTube. Indeed, Viacom says in its suit that YouTube is nothing short of a rogue operation — just like the Recording Industry Assn. of America talked about Napster.

"YouTube has harnessed technology to willfully infringe copyrights on a huge scale…. YouTube's brazen disregard of the intellectual-property laws fundamentally threatens not just plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy."

That's pretty scary rhetoric from one of the biggest media companies in the world. Chairman Sumner Redstone is one of the toughest executives anywhere. It seemed as if Silicon Valley and Hollywood — which appeared to have reached detente — were gearing up for war again.

...

So, why the lawsuit? Simple. Billions of dollars are at stake, and the law — the Digital Millennium Copyright Act — is vague. It was passed in 1998 before anyone could have anticipated the world we live in now. Viacom sees its business model — producing movies and supplying programming for television channels — under attack and thinks it can get an edge either in negotiations with Google or, more broadly, by using the courts.

It better rethink. When it comes to lawsuits, Google is unlike any company Viacom has ever encountered. On issues of copyright, trademarks and the like, Google likes a fight. Talk to Google Chief Executive Eric Schmidt or founders Larry Page and Sergey Brin, and they will tell you that central to their mission of organizing the world's information is the belief that the laws surrounding intellectual property need to be updated to reflect the Digital Age. It should be no surprise that Google has hired more than 100 in-house lawyers and an army of outside firms that are specialists in this kind of law.

Look at that trademark suit with insurance giant Geico a few years back. Yahoo settled immediately because it rightly feared that a court fight with a Warren Buffett-controlled company might be bad for business. Google fought it for a year before settling. Or remember the Department of Justice's subpoena for consumer Web-search data last year? Microsoft and Yahoo complied immediately. Google pushed back in court and forced the request to be significantly narrowed. It is spending hundreds of millions of dollars to digitize almost every book on the planet and make them searchable, even though no clear payoff is in sight and a huge court battle with book publishers in the U.S. and in Europe is looming.

As for financial staying power, Viacom is a pipsqueak compared with Google. Its revenues are about the same, at $11 billion, but Google is far more profitable, has no debt and has 10 times more cash — $11.2 billion to be precise. Napster had no money for a protracted legal battle. Google could take on Viacom — and the rest of the entertainment industry, for that matter — until the Supreme Court settled the issue.

All of which leads to the following theory: Maybe a knockdown, drag-out court battle is exactly what Google is hoping for here. The resolution would provide desperately needed legal clarity, help fuel Google's insatiable appetite for changing the world and be good for consumers and businesses — all at the same time. Do you think Viacom thought about that before it pulled the trigger on the lawsuit? I doubt it, and I think it is going to be sorry for having not done so.

http://www.latimes.com/news/opinion/sunday/commentary/la-op-vogelstein18mar18,0,2431029.story

weldon
Mar 22, 2007, 08:52 PM
No thanks to you. :rolleyes: And you're still a long way from making a convincing argument that the references to advertising revenue in the suit are a "distraction."
Anyway, a good commentary on this lawsuit appeared in the LA Times over the weekend. In part:
http://www.latimes.com/news/opinion/sunday/commentary/la-op-vogelstein18mar18,0,2431029.story
Well, sorry you're annoyed with me. I didn't have a public link to share with you. It wasn't intentional just to spite you and say I've got it and you don't. I'm sorry you seem to have taken it that way.

The reason I keep trying to downplay the ad revenue stuff is because it doesn't matter to the law if they make one penny or a billion dollars. All the hyperbole in the language of the complaint is there for persuasion and to garner sympathy for their position ("look at those rich jerks!"). And again, it only matters in the limited context of deciding if YouTube qualifies as a service provider. We just had another comment from someone who thought they would get off because they don't sell videos. The money part of it is the last consideration.

Here's how I think the process will go...

1) Does YouTube have infringing content?

Yes. Viacom will win on this point and I think the courts will order a remedy that includes providing their anti-piracy tools to anyone that wants them with some RAND license terms.

2) If #1 is true, is YouTube exempt from liability for this infringing content per the Online Copyright Infringement Liability Limitation Act? (the "safe harbor")

Here's where it gets sticky. YouTube will argue Yes and Viacom will argue No. There are four ways to qualify as a service provider. You can be...

a transitory communications network
a systems cache
a hosting service for user content, or
a search provider


A) communications network

doesn't apply to YouTube (this is meant for companies like Level3, AT&T, etc. that primarily just provide the pipe in their capacity as an ISP.

B) a systems cache

doesn't apply because YouTube is more than a cache. This is meant to protect a company like Akamai that sells caching servers that hold content close to users, but are totally unaware of what the content actually is. The server just decides to hold or cache content based on a computer algorithm that decides what might be asked for next.

C) user content

Here YouTube has a defense and a good argument. Unfortunately, I think that YouTube will be shown to be more than a simple hosting company because they have editors that peruse the site looking for content to highlight. They pay attention to the most viewed content. They actively look for porn. My suspicion is that Viacom will find the "smoking gun" in an email or something that clearly shows YouTube is aware of the infringing content. This will hurt YouTube.

D) search

Google obviously involves search, but YouTube is more than video search ala images.google.com is to image search.

Summary: I think YouTube will be considered as something different than what the service provider definitions allow. Case over. YouTube is guilty. Viacom gets a payday.

3) If YouTube is innocent on #2, has YouTube done anything that would disqualify them from being classified as a service provider under the DMCA?

Here are the exemptions...

To obtain the safe harbor the OSP must:

* not have actual knowledge that the material or an activity using the material on the system or network is infringing (512(c)(1)(A)(1)).
* not be aware of facts or circumstances from which infringing activity is apparent (512(c)(1)(A)(2)).
* upon obtaining such knowledge or awareness, must act expeditiously to remove, or disable access to, the material. (512(c)(1)(A)(2) and 512(c)(1)(C))
* 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 (512(c)(1)(B)).
* have a Designated Agent registered with the US Copyright Office to receive notifications of claimed infringement (often called takedown notices). If the designated agent receives a notification which substantially complies with the notification requirements, the OSP now has actual knowledge and must expeditiously disable access to the work. The OSP must make available to the public through its service, including on its web site substantially this information:
o the name, address, phone number and electronic mail address of the agent.
o other contact information which the Register of Copyrights may deem appropriate.
* adopt, reasonably implement, and inform subscribers and account holders of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers (512(i)(1)(A)).
* accommodate and not interfere with standard technical measures used to identify and protect copyrighted works (512(i)(1)(B)).


I'm getting worn out so I'm not going to respond to each bullet point in detail, but here's my general opinion...

Viacom will show that YouTube has knowledge, and that they are aware of the general circumstances. They don't remove infringing content until notified, even when aware of it. These first three points will get them in trouble. They will get nailed on the direct financial benefit as well (this is where ad revenue finally comes into the picture, but it could also include their being sold to Google at a high valuation). They have an agent, no problem. They don't do a good job of finding repeat violators. They are in trouble here. Copyright protection measures is a non-issue because they don't provide DRM cracking tools to help people upload content to YouTube. If they find a customer service email that tells someone how to get a clip off a DVD, they are toast.

So you see, I think ad revenue is considered way down the list in the third step here and I firmly believe that YouTube is going to get hammered on a lot of points way before ad revenue comes up.

I thought the article was a mixed bag. It sounded like it was written by a tech reporter who was whining about not being able to download music illegally, rather than a legal or business reporter. I didn't like that part.

I did think the article made an excellent point that Google appears to be willing to contest these copyright law issues, take things to court, and aggressively defend themselves. I just think that YouTube is different enough from their search business that they won't be able to defend themselves very well (like they have with the book scanning project, for example). They have been very successful in defending themselves against copyright infringement for search so far, but they still have some big issues coming up regarding the use of trademarked and copyrighted keywords used in AdWords.