You may recall that the failure of Google and Viacom, which owns MTV and Comedy Central among other properties, to negotiate an agreement to work together (read: revenue sharing) resulted in a very public Viacom-Google “pissing match” over copyright infringement and whether Google had made good faith efforts to protect against it. (Danny has an excellent round up of the history and arguments on both sides here.)
The breakdown resulted in Viacom suing YouTube/Google for $1 billion in copyright infringement. Now the latest round of court documents are out, with Google claiming that Viacom’s action and attitude “threatens” freedom on the Internet.
At the center of the dispute is the 1998 Digital Millennium Copyright Act (DMCA), which Google argues protects it against the kinds of arguments that Viacom is making and excessive burdens of enforcing copyright online on such a scale.
Without getting into the arcana and labyrinth of the DMCA, let’s just say this is a critical case for copyright law in the digital era. Indeed, Viacom can probably show strict violations of copyright in the case. According to AP:
Viacom said it had identified more than 150,000 unauthorized clips of copyrighted programming — including “SpongeBob SquarePants,” “South Park” and “MTV Unplugged” episodes and the documentary “An Inconvenient Truth” — that had been viewed “an astounding 1.5 billion times.”
Despite this, arguably there are no actual damages here. Viacom probably benefited from the exposure of its shows and content on YouTube. That probably increased audiences and Viacom’s revenues. But DMCA damages are also statutory, meaning that they’re provided for a showing of infringement and don’t require a showing of actual financial harm.
A case like this will come down to some sort of balancing and “reasonableness”: how reasonably did YouTube act and what sort of burden is it reasonable to impose on publishers and site owners in this new era of digital content and file sharing? It’s unlikely that the case will settle given the damages that Viacom is seeking ($1 billion). More likely is a trial and then appeals — perhaps as far as the US Supreme Court.