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Google Beats Viacom!
Wednesday, June 23 2010 @ 06:29 PM EDT

This just in: Google has beaten Viacom on summary judgment. The judge has just ruled [PDF] that Google does qualify for DMCA safe harbor protection. "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements," the judge wrote. So "the burden is on the owner to identify the infringement." This is huge.

Of course, Viacom will appeal, they say. When I see people ganging up on Google for whatever flaws they are looking at, notice also please that Google fought for the Internet in this case, at great expense. And they won a victory for all of us. In fact, I had decided that if they lost, I would shutter Groklaw. It would have been legally too risky to continue. So, thank you, Google, for not letting the Hollywood content bullies destroy the Internet as we know it.

The operative paragraph in the judge's order, to me, is this one:

The tenor of the foregoing provisions is that the phrases "actual knowledge that the material or an activity" is infringing, and "facts or circumstances" indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users' postings infringe a copyright would contravene the structure and operation of the DMCA.
Viacom was trying to shift the burden of enforcement of copyrights on to Google, but the judge said they don't know unless Viacom sends them a notice whether Viacom even intended to put the material on YouTube. It could be fair use. That's not Google's job to determine, the ruling says. It's up to Viacom to let Google know. And when they sent one massive take down notice in February 2, 2007, by the very next day, virtually all 100,000 videos Viacom had accumulated and sent in the one mass notice were removed. Surprise.

Here's what YouTube said last March about why it is impossible for them to know what is and isn't authorized:

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

Here's what Google's VP and General Counsel Kent Walker, says the ruling means:
This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We're excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.
As Victoria Espinel, U.S. IP Enforcement Coordinator's report stated recently, “Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it” by means of fair use. Of course, the public's contribution is to do precisely that, relying on fair use but not crossing the line and causing legal issues for Google to have to deal with. This book, Bound by Law, can help you know where the line is.

If you want to review, here's Viacom's original complaint as PDF and as text, Viacom's 1st Amended Complaint and Google/YouTube's Answer and more filings are here.


  


Google Beats Viacom! | 163 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic here please
Authored by: overshoot on Wednesday, June 23 2010 @ 06:36 PM EDT
All those nifty instructions in red are good for clicky links.

[ Reply to This | # ]

I'm confused, PJ...
Authored by: Lazarus on Wednesday, June 23 2010 @ 06:39 PM EDT
Why would a loss for Google cause you to close Groklaw?


This place is yours, and you can do whatever you like with it... I guess I'm
just confused what one would have to do with the other.

---
Darl McBride: The Uwe Boll of the business management world.

[ Reply to This | # ]

Corrections thread; I'll start: s/on on/ on
Authored by: ais523 on Wednesday, June 23 2010 @ 06:58 PM EDT
Please try to summarise your corrections in the title of the thread, as I have
here; my issue is that the start of the article writes "on" twice,
once in black and once in red. Hopefully we can help keep PJ's work typo-free!

[ Reply to This | # ]

The News Picks thread
Authored by: ais523 on Wednesday, June 23 2010 @ 07:00 PM EDT
For comments on the other interesting stories in the Main Page sidebar. (Use the
Off Topic thread for interesting stories unrelated to this article that aren't
linked there.)

[ Reply to This | # ]

the next step:
Authored by: Anonymous on Wednesday, June 23 2010 @ 07:23 PM EDT
Getting back the "Downfall" parodies, more commonly known as
"Hitler finds out..." (Warning: they aren't for the faint of heart!)

[ Reply to This | # ]

A counter argument
Authored by: GreenDuck on Wednesday, June 23 2010 @ 07:31 PM EDT
Aardvar k Story

This post describes the problems an individual had trying to get his copyright works removed from Youtube and he concludes with a request that Youtube take some of the copyright infringement duties onto itself rather than rely on individual and specific requests.

Note: treat what he writes with caution, I believe he deliberately omits pertinent facts to make the story better.

[ Reply to This | # ]

Attorney Fees?
Authored by: Shadow Wrought on Wednesday, June 23 2010 @ 07:35 PM EDT
This seems like such a no-brainer, that I can't help but wonder if Google is
going to press to collect attorney's fees for frivilous litigation. I don't
think Viacom's appeals are going be that effective either. This is not a matter
for a jury, even slightly arguably, so there won't be any of the SCO redux.

---
"It's a summons." "What's a summons?" "It means summon's in trouble." -- Rocky
and Bullwinkle

[ Reply to This | # ]

Google Beats Viacom!
Authored by: xtifr on Wednesday, June 23 2010 @ 07:47 PM EDT

Allow me to just say "whoo-hoo!"

While I'm no fan of gratuitous copyright infringement (if nothing else, it undermines the generosity of those who choose liberal licenses for their works), I definitely think it should be a matter between the infringers and infringees, not the third parties who provide public forums.

Although it may surprise some, I actually think the courts made the right decision in both this and the Grokster case. (Note: Grokster has no connection whatsoever to Groklaw.) If this ruling stands, I think a very reasonable middle ground will have been carved out.

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

Viacom PWNED on Piracy (video with commentary)
Authored by: SpaceLifeForm on Wednesday, June 23 2010 @ 08:43 PM EDT
YouTube Link

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

    Heck! Not even Viacom knew if Viacom intended to put the material on YouTube
    Authored by: Anonymous on Wednesday, June 23 2010 @ 09:45 PM EDT
    Viacom was trying to shift the burden of enforcement of copyrights on to Google, but the judge said they don't know unless Viacom sends them a notice whether Viacom even intended to put the material on YouTube.
    From YouTub e's Blog:
    For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

    Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

    [ Reply to This | # ]

    It's fun to stay at the DMCA
    Authored by: Aladdin Sane on Wednesday, June 23 2010 @ 10:59 PM EDT
    Sorry for the Village People reference. I just can't believe that the DMCA is the hero here after being the villain in so many other cases over the last 12 years.

    ---
    There is nothing unknowable—only that which is yet to be known. —The Fourth Doctor (Tom Baker)

    [ Reply to This | # ]

    Note that Viacom's "logic" could be used to attack Linux
    Authored by: Yossarian on Thursday, June 24 2010 @ 12:06 AM EDT
    The attack could be done in the following way:
    1) Buy on the cheap a small company with little value.
    2) Find some good code there.
    3) "Donate" it to Linux using Viacom's methods.
    4) Sue Linux for big $$$$ for copyright violation.

    Under current law Linus will just say, as he had said to SCO,
    "Show me the code". If the code really belongs to somebody
    else he will just remove it. End of story.

    But under Viacom's "logic" Linux will have to pay a huge
    penalty. End of open source projects.

    [ Reply to This | # ]

    Google Beats Viacom!
    Authored by: Doghouse on Thursday, June 24 2010 @ 04:14 AM EDT
    When I see people ganging up on Google for whatever flaws they are looking at, notice also please that Google fought for the Internet in this case, at great expense.

    I'd love to agree with you on that, PJ, but I can't. Google aren't a charity, and they're fighting for their own interests. Sometimes those interests line up with our views of what's good, but no-one should delude themselves that any commercial operation is ultimately looking out for anyone or anything except its shareholders.

    [ Reply to This | # ]

    Great result.
    Authored by: SilverWave on Thursday, June 24 2010 @ 05:43 AM EDT
    :-)

    ---
    RMS: The 4 Freedoms
    0 run the program for any purpose
    1 study the source code and change it
    2 make copies and distribute them
    3 publish modified versions

    [ Reply to This | # ]

    Oh nos!
    Authored by: Anonymous on Thursday, June 24 2010 @ 08:41 AM EDT
    In fact, I had decided that if they lost, I would shutter Groklaw.
    Were you trying to pull a Rudy de Haas? :-)

    [ Reply to This | # ]

    Google Beats Viacom!
    Authored by: Anonymous on Thursday, June 24 2010 @ 09:49 AM EDT
    "For years, Viacom continuously and secretly uploaded its content to
    YouTube, even while publicly complaining about its presence there. It hired no
    fewer than 18 different marketing agencies to upload its content to the site. It
    deliberately "roughed up" the videos to make them look stolen or
    leaked. It opened YouTube accounts using phony email addresses. It even sent
    employees to Kinko's to upload clips from computers that couldn't be traced to
    Viacom. And in an effort to promote its own shows, as a matter of company policy
    Viacom routinely left up clips from shows that had been uploaded to YouTube by
    ordinary users. "

    I would like to know why this is legal.
    I would like to see the judge go after viacom for wasting his and the
    governments time. Whatever happened to filing false claims.

    This country is going to hell in a hand basket as my mom use to say.

    We get former microsoft employees that microsoft have paid millions to so they
    can get into office like Ross Hunter legalizing microsoft tax dodges all in the
    name of capitlism while states go broke and yet companies still make billions.

    http://microsofttaxdodge.com/

    This country is so screwed it isn't even funny. No one has any integrity anymore
    and the people who are suppose to have it are the first ones to be bought - the
    politicians.

    I am gonna go throw up now.

    [ Reply to This | # ]

    Going for the trifecta!
    Authored by: derobert on Thursday, June 24 2010 @ 12:52 PM EDT
    So far, we've recently had SCO's final loss in the trial court and now Google
    over Viacom. I'm keeping my fingers crossed the Bilski makes for a trifecta.

    [ Reply to This | # ]

    Similar to an Australian ruling in February this year
    Authored by: pcrooker on Thursday, June 24 2010 @ 07:49 PM EDT
    The Australian Federation Against Copyright Theft, AFACT (sort of an Australian version of the RIAA and MPAA) sued iiNet for not responding to copyright infringement notices by stopping allegedly illegal downloads. iiNet successfully argued it was not required by law to act on mere allegations.

    See: SMH article for details

    AFACT has appealed and according to them the case is likely to be heard later this year.

    [ Reply to This | # ]

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