Viacom v. Google could shape digital future
Lawsuit hinges on 1998 act protecting net copyrights; does YouTube qualify?
Kevin J. Delaney And Matthew Karnitschnig, Wall Street Journal
14 March 2007
The $1 billion question prompted by Viacom Inc.’s suing Google Inc. yesterday is how a 1998 law that was supposed to retrofit copyright protection for the digital future applies in the YouTube age.
While the suit was expected — Viacom in February publicly accused Google of copyright infringement — it raises the stakes in the running scuffle between Google’s YouTube and media companies over copyright clips posted by users to the video-sharing site without the consent of the clips’ owners. In the complaint, filed in U.S. District Court in New York, Viacom seeks damages and an injunction against Google to stop the alleged infringement. The suit accuses YouTube of using technology to “willfully infringe copyrights on a huge scale … and profiting from the illegal conduct of others as well.”
Since the video-copyright spat intensified last year, YouTube has claimed it qualifies for protection from liability because it removes clips from its site when copyright holders ask. Such a procedure is outlined in the Digital Millennium Copyright Act of 1998, a landmark law that updated intellectual-property rights for the Internet and laid the groundwork for the widespread hosting and searching of content originating from ordinary users. The DMCA also contained important so-called safe-harbor clauses, provisions designed to protect access providers, search engines, Web-hosting services and others from liability for copyright claims if they met several conditions.
But now some legal experts say there is little consensus or precedent on how that protection applies to video-sharing sites like YouTube. The safe-harbor dispute could hinge on several key issues, such as the extent to which YouTube has direct knowledge of copyright clips posted on its site without permission and whether it profits directly from them.
The safe-harbor issue is at the core of several other pending copyright cases, including Vivendi SA’s Universal Music Group’s suit against News Corp.’s MySpace.
Some lawyers say court decisions may have broad ramifications. “The DMCA safe harbor covers a lot of businesses, and it’s hard to see how you could go after YouTube without threatening all of the others,” says Fred von Lohmann, senior attorney at the Electronic Frontier Foundation in San Francisco.
The Viacom suit comes after failed discussions between the media company and Google over licensing content such as “The Daily Show with Jon Stewart” and “Laguna Beach” for use on YouTube and indemnification of Google from copyright suits. Those talks fell apart by late last year amid disagreement over a number of issues, including how much Google might pay, say people familiar with the matter. Viacom in February publicly accused Google of profiting from copyright infringement; Viacom requested that YouTube remove more than 100,000 Viacom clips from its site.
Viacom says it decided to file suit because its request last month that YouTube remove Viacom clips failed to keep them off the site. As recently as yesterday, one of the most viewed videos on YouTube was one from “The Colbert Report,” owned by Viacom. The media company says it spends “tens of thousands of dollars” a month searching for its programming on YouTube so it can request its removal.
|A message notifies YouTube users that a clip of Viacom’s ‘Colbert Report’ has been removed.
“It’s hard for us to believe that [Google] has any desire to protect our content,” said Viacom Chief Executive Philippe Dauman.
In its suit, Viacom alleges that the availability of copyright works on YouTube “is the cornerstone of [its] business plan.” Other major media companies are talking tough but appear less inclined to follow Viacom in filing a lawsuit, partly because they have existing partnerships with Google that they don’t want to jeopardize.
“Time is up for YouTube,” said Time Warner Inc. General Counsel Paul Cappuccio. “It’s no longer permissible for them to have unauthorized copyrighted material on there.”
But Time Warner, which has a deal with Google through its AOL unit, believes companies should reach a compromise. “We are still of the opinion that we can negotiate a business solution with YouTube that will efficiently identify and filter out unauthorized copyrighted works while also allowing us to license copyrighted works to them for a share of revenue,” Mr. Cappuccio said.
Many media executives think that the Viacom suit is part of an effort by the company to pressure Google into working out such a deal. Mr. Dauman has pledged to double Viacom’s digital revenue to $500 million this year, a goal that a YouTube pact would make it easier for him to reach.
Google lawyers contend that there is little ambiguity in the safe-harbor clauses’ protections for YouTube. “It is a relatively clear statute, and Web hosts in general have been confident their activity is not something that will subject them to copyright liability as long as they comply with the notice and takedown procedures outlined in the act,” said Alexander Macgillivray, a Google associate general counsel.
When the DMCA became law in 1998, it was an earlier age of the Internet where the principal legal preoccupations related to access providers, like AOL, and hosts of online forums, Web sites and simple search engines. But now with ubiquitous high-speed consumer Internet connections fueling an explosion of digital content and the growth of sites that host photos, video and music uploaded by consumers, the application of the DMCA safe harbor is in dispute.
In its complaint, Viacom signals clearly its belief that YouTube oversteps the protected activities: YouTube goes beyond just hosting users’ Web sites and “itself commits the infringing duplication, public performance and public display.”
“These provisions were tailored for AOL and their like because these services couldn’t know everything that was going on in their chat rooms,” said Mike Fricklas, Viacom’s general counsel. “YouTube is a different business.” Google supporters say YouTube’s actions simply reflect the evolution of what an Internet company does and that protections intended for Web hosts in general should apply.
Legal experts say the main points of contention also include how much knowledge the Internet companies have of specific examples of infringement. Viacom in its suit contends it can be impossible to look at YouTube without seeing specific examples of infringement, copyright video clips uploaded by users.
Mr. Macgillivray declined to comment on that, saying it was one of the issues under litigation. But the video site has in the past contended that it doesn’t examine individual videos and that it is often nearly impossible to know whether a video is infringing or not, since media companies sometimes upload the clips themselves. Google has said it plans to introduce automated systems for identifying copyright content.
Under one interpretation of the safe-harbor clauses, the video sites lose their protection when they start making money from the infringement, which is arguably happening as they begin to add advertising. Google and YouTube “profit handsomely from the infringement,” Viacom says in its complaint.
YouTube has anticipated such an issue and doesn’t display ads on pages where consumers can actually view videos unless it has an agreement with the content owner. But advertising does appear on pages listing results users see when they search for videos on YouTube.
Source: Wall Street Journal