Yesterday, Judge Louis L. Stanton granted Google’s motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millennium Copyright Act (DMCA) against claims of copyright infringement.
YouTube Wins Case Against Viacom
The decision reaffirms the established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.
Kent Walker, Vice President and General Counsel of Google, said on the Official YouTube Blog, “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.”
Viacom said in a statement Wednesday, “We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.”
What do this mean to marketers?
Ryan Lawler of NewTeeVee thinks, “YouTube’s win in the $1 billion lawsuit that was brought against it by Viacom could not only help clear it of the copyright infringement stigma that it has held since the early days of its operations, but it could pave the way for the video share site to sign up more premium content partners.”
David Lieberman of USA TODAY says, “Entertainment companies may find it harder to keep movie and TV show clips from circulating for free online after a federal judge on Wednesday threw out Viacom’s hotly contested $1 billion copyright infringement suit against Google’s YouTube.”
Nathan Koppel of the WSJ Law Blog observes, “Given the massive amounts of video material on YouTube — Stanton noted that 24 hours of video are uploaded every minute — Google must rely on copyright owners to identify infringing material, according to the ruling.”
Sam Diaz of ZDNet points out, “the YouTube case actually proves that ‘the DMCA notification regime works efficiently,’ citing Viacom’s massive take-down notice of some 100,000 videos submitted to YouTube on Feb. 2, 2007. By the next business day, YouTube removed pretty much all of the questionable videos.”
And Matthew Belloni of Reuters News Service quotes Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law, who argues, “A lot of content owners want service providers to do more than the law requires. This opinion rejects those requests.”
What do I think?
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 was suing YouTube 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.
Yesterday, Viacom said in an emailed statement, “We believe that this ruling by the lower court is fundamentally flawed.” I disagree. Judge Stanton got it right.
And as Chris Thompson of Slate writes this morning, “Truth be told, this may be the best thing to happen to Viacom, as the lawsuit has so poisoned relations with YouTube that the entertainment company has failed to take advantage of YouTube’s vast promotional and advertising potential. If this suit is pushed aside, maybe Viacom can get back in the game.”