Viacom v. YouTube

Viacom V. YouTUbe
The controversy: a history and its implications
By Elizabeth Shelby

Who is Viacom?
Media conglomerate which owns 2 networks (MTVN and BETN) comprised of smaller networks, including MTV, VH1, Comedy Central, BET, CMT, Nickelodeon, among others
Also owns Paramount Motion Pictures
Producer of popular original shows like The Colbert Report, The Daily Show, SpongeBob SquarePants, among others

Who is YouTube?
Created in 2005 by PayPal employees
Bought by Google in 2006 for 1.6 billion dollars
Video hosting site, hosting both user-generated and pre-existing content
Based on 2009 numbers, over 20 hours of video are uploaded every minute

What’s Going On
On March 13, 2007 after sending hundreds of thousand of unanswered takedown notices to YouTube one month prior, Viacom files a 27 page complaint against YouTube in the Southern District of NY under Judge Louis Stanton
Viacom seeks statutory damages for ea. infringement or $1 billion in actual damages

So what’s the problem?
“YouTube has willfully, intentionally, and purposefully reproduced, publicly performed, and publicly displayed the copyrighted works, and/or knowingly facilitated, enabled, induced, and materially contributed to the infringing uses thereof, and/or refused to exercise its ability to control or supervise infringing uses thereof from which it obtains direct financial benefits”
–from Viacom’s 3/13/07 complaint filed against YouTube

Viacom Claims
YouTube:
Hosts more than 150,000 unauthorized Viacom-owned clips, which have been viewed more than 1.5 billion times
Publicly performs infringing videos
Puts the huge responsibility and cost of monitoring an infinite amount of clips for infringement on the copyright owner (Viacom)
Usurps Viacom’s “exclusive right to reproduce”
Profits directly from Viacom’s protected material (“The Daily Show with Jon Stewart,” “The Colbert Report,” “South Park”)

“Plaintiffs have the distinct, severable, and exclusive rights to, among other things, reproduce, publicly perform, and publicly display their copyrighted works”
17 U.S.C. Section 106 (1), (4), (5)

Examples of alleged infringement

Thumbnails(Public Display)

Streaming and Embedding(Public Performance)

Filtering and Finding
Porn
Business Partners
Viacom must employ over 30 full-time staffers to scour YouTube for infringements manually
Inevitable time lags
“Friends”
No more than 1,000 video search results

Claims for Relief
Count 1: Public Performance (Streaming and embedding)
Count 2: Public Display (Thumbnails)
Count 3: Reproduction (Unauthorized copies)
Count 4: Inducement of Copyright Infringement (Usurping content owner’s Rights)
Count 5: Contributory Copyright Infringement (Actual and Constructive Knowledge)
Count 6: Vicarious Infringement (Not allowing filtering)

Google’s Defense (filed 4/30/07)
Among others, Google’s main defense is that it is protected by the DMCA Safe Harbors (or section 512)

DIGITAL MILLENIUM COPYRIGHT ACT SECTION 512

1998
“Safe Harbor” provides a limitation of liability of Internet Service Providers (ISPs)
Transitory Digital Communications (Conduit Liability)- transmitting, routing, providing connections
Caching- intermediate and temporary storage
Web Hosting- making space available on your server for someone else to post things **
Information Location Tools (search engines)

Subsection C- “Web Hosting”
An ISP…
(i) must not have actual knowledge
(ii) ...is not aware of facts or circumstances about infringing activity
(iii) upon obtaining awareness, acts expeditiously to remove, or disable access to, material
Cannot receive financial benefit directly attributable to infringing activity
Responds expeditiously to remove infringing material

Debate
Google:
512 puts the obligation to spot infringement directly on the content owner
Google only has an affirmative duty to respond to takedowns
Unclean Hands Doctrine
Viacom:
Burdensome & expensive
Millions of files, Viacom employs 30 full-time staffers
There is too much owned content to go through manually
What about the other 300 file hosting sites?

YouTube’s Smoking Gun
In October 2009 evidence emerged that (allegedly):
A) YouTube employees were among those uploading Viacom’s material
B) Through internal emails, YouTube managers acknowledged their awareness of Viacom’s material on the site but intentionally chose not to remove it
If found to be true, this will effectively dismiss YouTube’s defense that it (i) had no actual knowledge, (ii) was not aware of infringing activity, (iii) always acted expeditiously to remove infringing material
Financial benefit?

Questions/Implications
Should there be different exceptions for different numbers of owned works? (Viacom’s # vs. Elizabeth Shelby’s #)
Did Congress anticipate this problem?
Control: An ISP must have a takedown and repeat infringer policy
If you have too much control, though, you may fall out of Safe Harbor

Viacom v. YouTube

by elizabethshelby on Dec 03, 2009

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