For the London Free Press – April 12, 2010
Copyright infringement: Even its own employees couldn’t keep track of everything it posted or left on the site as promotions
Three years ago, Viacom sued YouTube for $1 billion based on claims of copyright infringement for unauthorized posting of Viacom copyrighted material.
This case is complex and controversial. Until recently, many documents in the litigation were sealed and not available to the public. Summary judgment materials have now been filed and the parties have gone public with their complaints.
When the documents were released, YouTube’s chief legal counsel, Zavanah Levine, made this surprising blog post:
“For years, Viacom – a media conglomerate in the United States that owns such networks as MTV and Comedy Central – continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired 18 marketing agencies to upload its content to the site. It deliberately ‘roughed up’ the videos to make them look stolen or leaked. It opened YouTube accounts using phony e-mail addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy, Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users.
Executives as high up as the president of Comedy Central and the head of MTV Networks felt ‘very strongly’ that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom’s efforts to disguise its promotional use of YouTube worked so well even its own employees couldn’t keep track of everything it was posting or leaving up on the site. Viacom demanded the removal of clips it had uploaded to YouTube, only to return to sheepishly ask for their reinstatement. In fact, some of the very clips Viacom is suing us over were actually uploaded by Viacom itself.”
If that is true, it seems inconsistent with Viacom’s lawsuit.
Viacom now states it does not take issue with how YouTube has operated since May 2008. In May 2008, YouTube integrated a Content ID system into its site, which permitted copyright owners to assert ownership over their own content. In doing so, the copyright owner can let YouTube know whether it wants the content blocked or monetized.
The Electronic Frontier Foundation’s take on the case is it comes down to Viacom seeking to change the law on copyright in the U.S. to ensure that online service providers be required to implement and pay for copyright filtering. This type of argument has already been considered and rejected by U.S. courts.
The Digital Millennium Copyright Act (DMCA) provides safe harbours for U.S. hosting providers. It provides a protocol for service providers to follow when anyone alleges someone has posted anything on the service provider’s service that infringes copyright. So long as the service provider follows the protocol, it’s not liable for copyright infringement.