Google, Viacom Lawyers Square Off on DMCA
Viacom and Google go to court July 27 to decide which of the two companies should bear the cost of keeping Viacom's copyrighted content off YouTube, Google's video-sharing Web site. Viacom says Google and seeks $1 billion in damages.
Whatever the result, the case will impact most Internet users. According to comScore, nearly 75 percent of U.S. Internet users watched an average of 158 minutes of online video per user during May 2007. Most of those videos came from YouTube. According to web metrics firm Hitwise, YouTube's market share was 50 percent greater than the next 64 most popular Web video sites combined.
But beyond even its immediate impact on Web video watchers, this case has the potential to shape the future of the Internet and how it works.
That's because to defend itself, Google will rely on section 5.12 of
the Digital Millennium Copyright Act (DMCA). Google
Viacom, however, believes that, although the DMCA provides some Internet
companies "safe harbor," companies that profit from copyright
infringement and could do something to stop it are not guaranteed
protection by the law.
The case for Google
YouTube product counsel Glenn Brown told internetnews.com it
would be impossible for Google to meet any of Viacom's demands.
Section 5.12 of the DMCA recognizes this reality, he said, which is
why it provides "safe harbor" from suits such as Viacom's.
Brown and Google's view is that Congress passed the DMCA because if
Internet companies with hosted services were liable for user
copyright infringement, it would be too difficult to grow their
businesses.
Brown said Congress also recognizes that only copyright holders know
whether their content is copyrighted or not. The law, therefore, places on copyright holders the responsibility of monitoring their content on the Web.
Some, including lawyers for Viacom, challenge this argument by saying
that if Google can recognize and filter porn from YouTube, it should
just as easily be able to recognize and block copyrighted content.
But Brown said that unlike porn, you can't tell a video is
copyrighted just by looking at it.
To demonstrate, he played three video clips: a poorly produced
video blog; a skateboard stunt clip; and a cleanly edited
montage featuring clips from Viacom's Colbert Report.
Turns out the only video with exclusive copyrights was the poorly
produced video blog. The Colbert montage was also copyrighted, but
produced by MoveOn.org, which wanted the video to be freely distributed.
There is a wide range of copyright holders out there, Brown said, and
they all have "weirdly" different preferences. That's why Google will never have "direct knowledge" of what the content owners would want done with their videos even though the company is developing fingerprinting technology and even if it could identify all the copyrighted content uploaded to
YouTube.
Brown said it is just another reason the DMCA puts the onus on
copyright holders to monitor their content on the Internet. Viacom
included.
The Case For Viacom
"I'm not asking for perfection," Viacom General Counsel Michael
Fricklas told internetnews.com. "I'm asking for [Google] to
take responsibility and do the obvious."
Fricklas said he wants Google to keep Evan Almighty, or any
other obviously copyrighted feature films still in theaters, off
YouTube. He's heard all of Brown's arguments, but he doesn't think such a task
would be that hard.
Viacom, he said, spends less than $50,000 a month to monitor the
content users upload to its sites. He suggests Google spend a couple
of hundred thousand dollars to hire 80 to 100 employees to pre-screen
every video uploaded to YouTube each day. Other companies do it.
It is such an easy solution, Fricklas said, that Google's unwillingness to embrace it amounts to nothing less than willful copyright
infringement.
Next page: And what about this DMCA defense?
will argue the DMCA protects Internet companies like YouTube from being held liable
for the copyright infringement of its users.