Yesterday, news came out about Viacom suing Google for $1 billion over alleged video copyright infringement on YouTube. With some dust settling, I thought it would be helpful to recap some of the analysis out there. I’m pulling this roundup mostly from coverage you’ll find on Techmeme. Come along, and we’ll go through the official company statements from both sides, the actual case, the importance of the Digital Millennium Copyright Act’s "safe harbor" provision and how Viacom scoured YouTube to build its case.
Viacom Files Federal Copyright Infringement Complaint Against YouTube And Google is Viacom’s press release, with Viacom’s statement:
"YouTube is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others’ creative works in order to enrich itself and its corporate parent Google. Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws. In fact, YouTube’s strategy has been to avoid taking proactive steps to curtail the infringement on its site, thus generating significant traffic and revenues for itself while shifting the entire burden – and high cost – of monitoring YouTube onto the victims of its infringement.
This behavior stands in stark contrast to the actions of other significant distributors, who have recognized the fair value of entertainment content and have concluded agreements to make content legally available to their customers around the world.
There is no question that YouTube and Google are continuing to take the fruit of our efforts without permission and destroying enormous value in the process. This is value that rightfully belongs to the writers, directors and talent who create it and companies like Viacom that have invested to make possible this innovation and creativity.
After a great deal of unproductive negotiation, and remedial efforts by ourselves and other copyright holders, YouTube continues in its unlawful business model. Therefore, we must turn to the courts to prevent Google and YouTube from continuing to steal value from artists and to obtain compensation for the significant damage they have caused."
Those inside Viacom got this memo, which starts off:
As you already know, Viacom has spent months trying to come to an agreement with Google and YouTube in order to provide our popular video content on the YouTube platform. Unfortunately, they refused to negotiate a reasonable licensing offer. Instead, YouTube continues to take no responsibility for airing copyrighted content, and selling advertising against it. None of this advertising is shared with us, and despite many promises, Youtube has not taken any significant steps to keep our creative works off the site and no timetable has been set
Viacom Sues Google For $1 Billion Over Unauthorized Videos from us yesterday has Google’s initial statement that it was issuing to people:
We have not received the lawsuit but are confident that YouTube has respected the legal rights of copyright holders and believe the courts will agree. YouTube is great for users and offers real opportunities to rights holders: the opportunity to interact with users; to promote their content to a young and growing audience; and to tap into the online advertising market. We will certainly not let this suit become a distraction to the continuing growth and strong performance of YouTube and its ability to attract more users, more traffic and build a stronger community.
Google later sent us (and others) this quote from Kent Walker, general counsel at Google:
"YouTube has become even more popular since we took down Viacom’s material. We think that’s a testament to the draw of the user-generated content on YouTube. We’ve been very successful forging thousands of successful partnerships with content owners — like Warner Music, Sony/BMG, Universal Music, BBC, and the NBA — interested in finding new audiences for their programming. These partnerships offer the YouTube community access to some of the best content in the world, ranging from entertainment and sports to politics and news. And we’re only getting started."
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.
18 Reasons why Google and YouTube are Guilty of Copyright Infringement from Steve Bryant at Google Watch is an excellent breakdown of the Viacom arguments against Google. What’s not in the case is any evidence of the 100,000 clips and 1.5 billion views that Viacom claims.
The figures are similar to those Viacom cited in the massive takedown notice is gave Google last February. As it turned out, some of those videos didn’t violate Viacom’s copyright at all. So it could be a big number of those clips aren’t violations, though Viacom has said only about 60 to 70 were mistakenly withdrawn. As for those views, they come from Viacom having run a check for all the clips it says violate its copyright and then pulling view numbers from each of those (see the end of this roundup for more on how Viacom did the scanning). That also means the view numbers could be off.
Viacom admits the view numbers could be off in its suit — in fact, argues they could be higher:
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….
At the same time, YouTube allows its users to make the hidden videos available to others through other YouTube features like the "embed," "share," and "friends" functions. In this way, YouTube continues to profit from the infringement, while hindering Plaintiffs from preventing it.
The idea here is that content might be uploaded and shared privately with others, potentially a copyright infringement. Or maybe not, in that I’m unlikely to be sued for recording something off the air, burning it to a DVD to watch later, then lending that DVD to someone else.
I won’t dive deeper into the legal arguments on sharing, since I’m not a lawyer. Google’s chief defense seems to be that as a search engine and/or storage system, it is protected by the DMCA Safe Harbor provisions that require copyright owners to issue takedown notices.
That law sucks big time for a content owner subject to repeated infringements. Many without the deep pocketbooks of Viacom have complained about things like blog spam, where print content online is stolen, placed on something like Google’s Blogger and then shows up in Google search results. Filing a DMCA complaint takes time, and it doesn’t stop the culprit from doing the same using another account.
That leads over to Mark Cuban, who in You Go Viacom! describes what many recognize — that the DMCA safe harbor is becoming outdated. I joked yesterday on the Daily SearchCast that I was sure that we’d see the big content owners push through some change that will give special protection to video content while the poor print folks will still go through the same old hassles. Cuban writes the same:
The DMCA Safe Harbors as they are written will not exist for very long. You can bet the same companies that spend tens of millions of dollars to extend copyrights to ridiculous extremes, or that want to push for truly ridiculous things like a Broadcast Flag, or the new Webcast Royalties, will spend whatever it takes to get the law changed to their liking. Just as they have done multiple times before. One thing is certain, our lawmakers and lobbyists are relatively cheap compared to the dollars at stake here.
Since we’re talking the DMCA so much, it’s time to highlight another article, YouTube’s fate rests on decade-old copyright law, from the always excellent Declan McCullagh over at News.com. He goes through the law, how it came to be and notes:
But what about the safe harbor’s first requirement of not ignoring massive infringement? Viacom’s complaint says, "YouTube has failed to employ reasonable measures that could substantially reduce, or eliminate, the massive amount of copyright infringement on the YouTube site from which YouTube directly profits." (For its part, Google says it’s confident that YouTube has respected the legal rights of copyright holders and predicts that the courts will agree.)
Avanzado, the entertainment attorney, says he expects Viacom to argue that Section 512 doesn’t protect YouTube. That’s because the safe harbor applies only if the Web site does not financially benefit directly from the alleged infringing work.
IP Democracy also notes that Viacom ironically might find it wants to claim DMCA protection against the same allegations it levies against YouTube that possibly could impact its AtomFilms sharing site.
Now let’s get back to the $1 billion claim. You’d think that for a claim that large, someone else made $1 billion that Viacom seems to have lost. We know that YouTube itself sold for $1.65 billion in a stock deal. The founders cashed in big time, and Sequoia Capital has to be glad they got their $400 million or so before a suit was filed. But Are You Kidding? A Billion Dollars? from NewTeeVee reminds that YouTube itself only made about $15 million last year.
Many have looked at the lawsuit, along with the giant claim, as simply the next step in a negotiating tactic with Google. Google’s intransigence triggered lawsuit from the Los Angeles Times gives some nice back story on the negotiation breakdown and how Viacom scanned YouTube, painstakingly it says, to avoid catching legitimate uses as infringements:
Sumner Redstone, Viacom Inc.’s 83-year-old chairman, got the call Monday at the Four Seasons Resort Costa Rica telling him that the company he controls was declaring war on Internet giant Google Inc. after months of failed talks….
To lay the groundwork, Viacom hired workers and contractors to scour every corner of YouTube’s site at a cost General Counsel Michael D. Fricklas put at "tens of thousands of dollars a month."
Using "crawler" software for its reconnaissance, BayTSP reviewed some 1.8 million videos for keywords such as "Beavis and Butthead" from Viacom’s MTV, "SpongeBob SquarePants" from Nickelodeon and "Jon Stewart" from Comedy Central’s "The Daily Show." More than 150,000 clips were identified as improper, which Viacom estimated had been viewed 1.6 billion times.
But Viacom didn’t want to shoot and miss in filing its claim. So it had to painstakingly verify whether clips were improperly copied, might be considered fair use or were even relevant to its lawsuit.
For example, was a clip featuring comedian Jon Stewart in the title lifted from Comedy Central’s "The Daily Show," or did it come from one of his outside appearances? Snippets of a video from MTV meshed with an amateur one could be considered fair use. And a clip with Comedy Central’s "Stephen Colbert" in the title might simply be an amateur stand-up desperate for the attention of viewers.
As a result, dozens of workers had to spend hours effectively being paid to watch YouTube.
Finally, Viacom and YouTube’s Dance Around: History Through Links from PaidContent.org is a nice short link history of the falling out between Viacom and Google, starting with YouTube’s deal with Viacom-owned MTV back in March 2006 through to Viacom’s demand to pull video content off YouTube last February and up to the bombshell of yesterday.