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NBC, Viacom: Friends at Arm's Length on DMCA

NBC Universal snuck in a good whack on Google's YouTube lawsuit piñata when it joined Viacom in support of journalist Robert Tur's copyright infringement case against the Mountain View, Calif., company.

But don't check the skies for winged pork just yet. Viacom and NBC aren't suddenly in it for the little guy when it comes to videos from their programming troves that are uploaded on YouTube. Plenty of self-interest motivated their move -- especially in the search for a good test case to defend the Digital Millennium Copyright Act (DMCA) as part of their case against the video-sharing site, experts say.

Tur, a Los Angeles-based video journalist, is suing YouTube over -- what else? -- violating the copyright Tur owns on footage he shot of Los Angeles's 1992 riots. In their "friends of the court" brief in support of the case, lawyers for Viacom and NBC concurred with Tur's general position, writing that Google's YouTube must not go unchecked regarding copyrighted content that is uploaded to the site.

"YouTube could continue to profit from infringement while imposing on thousands or millions of copyright owners such as Tur the costs of constantly attempting to monitor the YouTube Web site," the brief claimed.

But otherwise, the document does little to argue Tur's case. Mostly, it pleads with the judge on the case to avoid making Tur's case a test of the Digital Millennium Copyright Act (DMCA).

Sources say NBC and Viacom most likely filed the friends of the court brief to make sure that, when Tur goes down, he doesn't take anybody else with him by turning Google's view of the DMCA into law.

Viacom and NBC Universal sources refused to comment beyond the brief.

"If this Court believes summary judgment for YouTube is warranted, it should limit that finding to Tur's failure," the brief reads, "and not on the basis of YouTube's sweeping and fundamentally erroneous interpretation of the DMCA."

According to Carole Handler, vice chair of the IP Litigation Practice at Foley & Lardner, lawyers for both companies were probably worried that when -- not if -- the court decides against Robert Tur, it will do so in a manner that supports Google's view of the DMCA, which holds that the responsibility to monitor copyrighted content on the Internet lies with the content owners themselves, not with YouTube or other video-sharing sites.

Such an interpretation of the DMCA could be used against Viacom in its $1 billion suit against Google in the U.S. District Court for the Southern District of New York. Viacom is suing Google, which bought YouTube last year for $1.65 billion, because Viacom holds that Google doesn't do enough to prevent users from posted Viacom-owned video content on YouTube.

Sources familiar with the matter told internetnews.com that NBC does not plan to join Viacom's suit. But the company still has interest in preventing Google's view of the DMCA from becoming law. This source says NBC is in the midst of cooperating with Google to test technology intended to identify NBC content posted to YouTube.

But, if Cooper supports Google's view of the DMCA in the process of deciding against Tur, Google will not be compelled to implement that technology, and the burden -- and costs -- of policing the use of its copyrighted content will fall to NBC.

Hence the brief, which was likely filed because NBC and Viacom do not trust Tur as a guardian of the DMCA. He doesn't have a very good trial history, Handler said, noting Tur came close to the ignominious designation of vexatious litigator.

"People who have a genuine intellectual issue with what Google and YouTube are doing are deeply concerned that bad facts make bad law. They don't want something that can affect the entire content industry on a massive scale to rest on the fate of this one lawsuit," Handler said.

Google did not respond to a request for comment.