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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 will argue the DMCA protects Internet companies like YouTube from being held liable for the copyright infringement of its users.

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?