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?

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Not quite a ‘safe harbor’

There are three reasons, said Fricklas, that the DMCA does not offer Google any kind of “safe harbor.”

First off, section 5.12 of the DMCA only protects companies
with four kinds of service, and according Fricklas, YouTube’s service
isn’t one them.

Part 5.12(A) protects companies that own and operate the Internet’s
infrastructure. Part 5.12(B) protects companies that host temporary
caches. Part 5.12(D), he said, allows Web sites to link to
copyrighted materials without infringing.

Google, Fricklas said, claims part 5.12(c) provides it safe harbor.

But according to Fricklas, part 5.12(c) protects companies that
provide hosted storage, and YouTube is not a storage company as
defined by the law.

YouTube has elements of a storage service, Fricklas allowed, but only in
the way a TV station does. It stores video content and then makes it
viewable for the public.

The second reason Google isn’t protected by the DMCA, Fricklas
argued, is that the law doesn’t protect any business where the model
is to derive financial benefit from attracting people to the
copyrighted content stored on its site.

Even though YouTube doesn’t serve advertisements inside the videos,
Fricklas said the copyright-infringing videos drive traffic and
increase the value of the advertising on the site’s edges. That’s
financial benefit, he said, and it will ultimately deprive Google
from safe harbor.

That’s because Fricklas believes Google has the “right and ability”
to prevent users from uploading illegal content to its site.

For his third DMCA-related argument, Fricklas said section 5.12 makes
it clear: For a company to have safe harbor it can’t have knowledge of infringing activity.

Fricklas is aware that Google’s claims it doesn’t have that knowledge; he just
doesn’t believe it.

“YouTube makes all kinds of interesting arguments around the
boundaries, OK? And we could have all kinds of interesting disputes
around the boundaries,” he continued. “But when a full-length motion picture shows up
on YouTube, or when a full-length episode of a copyrighted show or
even a 10-minute clip of a show ends up on the YouTube homepage,
don’t tell me they don’t know about it.

“It’s in the front page of every newspaper. It’s in our complaint.
You can’t tell me YouTube doesn’t know there’s infringing content
going around.”

Viacom’s DMCA interpretation makes for “good law,” Fricklas said, in the same way it makes more sense for a polluting
manufacturer to spend $1 million to put scrubbers on its smoke stacks
than for a city to spend $1 billion to clean up later. Courts should
force Google to pre-screen all uploads to YouTube rather than ask
all the world’s copyright holders to search the site every day.

A world without Web 2.0?

Roger Schecter, a professor of law at George Washington University and member of the advisory council of the McCarthy Center for Intellectual Property and Technology Law at the University of San Francisco, told internetnews.com he mostly agreed with Google’s lawyer Brown and his interpretation of the DMCA.

First, that a video clip appears to be commercially produced does not necessarily mean it’s copyrighted. Besides, he said, a viewer can’t determine the copyright owner or what they’d want done with it just by looking at it.

Nor did Professor Schecter buy Fricklas and Viacom’s argument
that forcing Google to prescreen all YouTube uploads would be so
much more efficient.

It’s conceivable, Schecter said, that if Google were forced to prescreen all videos uploaded to YouTube, blog networks and photo-sharing sites might someday be open to litigation if they did not do
the same.

There is an argument that such a threat could stifle growth on the
Internet.

Part of the reason for Silicon Valley’s resurgence is the user-generated content platform. It eliminates the cost of content
creation, keeping margins tight and turning any revenues into profits
for venture capital.

And besides the cash benefits for venture capital, such a model has,
like a treasure chest, given the world more than just YouTube.

Let’s not forget the numerous blog networks (WordPress, Blogger, Typepad, etc.), Flickr, Digg, Facebook, MySpace and Photobucket. According to a loose tabulation of comScore numbers, there’s about a billion or so Internet users happy about all that.

To Viacom and more than a few content owners, however, that treasure
chest is a Pandora’s Box. They are essentially concerned that this Web 2.0 world
will not reward them for their work.

Opening arguments begin July 27.

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