Argument 1 (YouTube's value is largely based on infringing work) is just plain silly. That argument is only true for users who are using YouTube as a source to seek copyright infringing content. What first drew me to YouTube had nothing to do with copyright infringement. In fact, I watched tons of material authorized by the copyright owners. I can't be alone. My point is that YouTube's "value" is in the eye of the user, and users have entirely different views of where the "value" lies.

I don't think argument 2 is going to fly in court.

In fact, it isn't until argument 3 that you begin to get to where the blame really lies. When a user chose to upload copyright infringing content, THAT is when copyright was infringed. YouTube's and Google's systems are simply a fantastically robust and powerful automated system being misused to infringe copyright. The blame lies entirely with the uploader.

YouTube has a TOS that users had to agree to in order to upload. I have no problem with YouTube furnishing the identity of uploaders, and those uploaders being pursued legally.

The problem with your argument 3 is that YouTube is nothing more than a gigantic and efficient FTP server, web server, or other server. The fact that the server is extremely powerful and efficient at not bogging down when thousands of people download the uploaded content is irrelevant.

By your argument, merely running an anonymous FTP server should put you at the same liability. But YouTube is not anonymous. YouTube knows who the users are, and they agreed to a TOS. It is those users who commited copyrighht infringement.

Perhaps, YouTube's TOS should (or maybe even does?) include an "indemnification" clause, where YouTube/Google could directly bring the true infringer into court to defend Google/YouTube from damages.

I stopped reading at "1. YouTube's value is largely based on infringing works."

This YouTube business of using a lame copyright detection
system (Audible Magic) that works to their advantage by letting most copyrighted videos pass trough
reminds me of the Old Story about the guy who is on a tour of a condom factory:
On the production line after they do the final test there is an arm with a needle that comes down and punches a hole in every 10th condom.
When asked what that was for, the guide responded
"that keeps our our production line that makes baby bottle nipples in business"


For more info on VideoDNA:

www.vobileinc.com
www.vobile.cn

lol A couple hours later, I am back. :-)

You really should have put "BTW, this isn't my argument. It's Viacom's. So don't shoot the messenger." at the top instead of at the bottom.

I totally almost unsubscribed.

Viacom will die the same slow death as the record companies.

I like how viacom's revenue was 11 billion, yet somehow YouTube caused losses of 1 billion... I guess they just picked a number out of a hat.

Just a billion? Not as much fun as the trillion dollar lawsuits RIAA loves to fool around with;)

--Zaid

YouTube does infringe. Google knows this. They hedged their bets when they bought it. I hope they end up paying more than 1 billion. Google claims to do no evil. Yet they steal left and right. Any other company that profited from doing this would be crushed. Other large companies (i.e. Microsoft) pay this much for a totally BS click to activate patent and people cheer. Google does something 100x worse (like they didn't know about this or hear of Napster?) and people jump to defend them. I hope they pay dearly to Viacom and that other lawsuits follow.

So it is only when Google, which happens to have a ton of cash, buys YouTube that Viacom seems to have a problem with copyright infringement.

I smell out of court settlement for old Viacom. typical of the old line companies. Rather than seizing the opportunities (record companies) they choose to sue aunt sally in Kansas. Hello Viacom the cat is out of the bag. Lead follow or get out of the way.

Do you know if the actual court document is posted on the internet?

If so, could you provide the address?

Interesting counter analysis by Lessig: http://www.lessig.org/blog/ He feels the lawsuit ... if it is a serious suit ... is intended to skirt the very law the content industry wanted passed: the DCMA.

Hey, you were looking for a copy of the complaint? It can be downloaded from the following URL. It's a 27-page Adobe Acrobat PDF file, 86,439 bytes in length.

http://news.com.com/pdf/ne/2007/ViacomYouTubeComplaint3-12-07.pdf

people like YouTube but that is not a good enough reason to permit broadcasting somebody else's property.. If people like it YouTube has to find a mechanism to make them pay and pass back the fee to the owner.

I think the WSJ has a copy available too, as does IP Democracy.

Hooray for Viacom! You all out there want it all...for nothing. The real problem isn't blatant ripped off content (you DO remember the book publishing fiasco don't you?)-it's the paranoia over pirating and Google certainly justifies pirating. After all, if it's good enough for the 800 lb. gorilla, it's good enough for anybody. What's needed is simple: easy access to music and video content at a reasonable price with a rent or own tiers. Subscription approaches would be an excellent way to go. And get rid of lawsuits (except in the most blatant of cases) and DRM. I'm tired of execs hiding behind piracy because their content sucks and they have no imagination on how to deal with the digital age. Hooray for Jobs too and his dump DRM proposal.

If I buy a CD and burn a copy of it for a friend and as a result, he doesn't buy a legal copy, that's copyright infringement. If I have someone else burn a copy of a DVD for said friend and he doesn't buy a legal copy and the someone else is aware of my intentions, that's copyright infringement. If I buy a DVD and upload it to my private server, which in turn posts it to a public server so noone has to buy legal copies of it, that's copyright infringement. However, the infringement, in my mind, happened when I made the CD, DVD, video available freely so I am primarily to blame, as is anyone who may have enabled me to do that. I don't see how this isn't that straightforward. It's not just GooTube (the enabler) who's responsible but the poster as well.

The article was interesting because it pointed out many aspects of Google's thievery that most people, including paralegals and lawyers, weren't familiar with. Such as putting youtube's own logo onto other people's work - illegal and fraudulent per se as false claim of copyright/ownership. Also interesting is Google's hypocrisy in controlling/screening some stuff (such as porn) while falsely claiming to be "unable" to screen the massive amounts of infringing material. Other points are of interest to a copyright expert like me, but a little too arcane for the readers who think that because they like getting [stolen] stuff from youtube, that youtube/Google is not infringing. A strange logic, known only to thieves.

Missing from the info is the percentage of videos on YouTube that are infringing. I find it hard to believe that that many people come to watch excerpts of reruns. There must be YouTube search stats somewhere. Personally, I don't visit YouTube to watch content that is available elsewhere. I prefer the truly creative efforts of individuals. Like the highly popular 'evolution of dance.' As for Viacom, they've only come to milk the cow, (laugh track to max volume here.)

It seems like a lot of the comments are glossing over two important parts of the argument. First, the DMCA does grant a large immunity for passive conduits. Second, basic copyright law allows fair use of other people's works. The argument that YouTube should simply determine what is owned by other people and delete that means that YouTube would have to delete non-infringing copies (especially partial copies). The DMCA, at least arguably, allows YouTube to be passive -- not to have to make the inquiry, and place the burden on its users and the copyright owners.

Maybe that's unfair, but I think that's really what's being argued about.

YouTube has some great non-copyrighted material, and an impressive community of faithful supporters. However, Viacom's 18 points are all pretty much still valid.
I never understood from the very beginning how YouTube would get around the copyright issue, if they ever encountered even a single content owner that didn't accept their licensing and business model. That day has come.
It's a stretch to suggest Viacom has been harmed to the tune of a billion dollars, but they should just get out their checkbook anyway, because I don't think they have a leg to stand on.

I didn't get what they were driving at by suing for infringement until I read this. I thought they were going to make the same lame arguments RIAA makes, i.e., "every download represents a lost sale". A short clip uploaded to YouTube of The Daily Show is a lost sale of....what??

Well, apparently the "residuals on reruns" rights of the performer are being infringed, in the eyes of Viacom. If you "star" in a TV commercial, you get paid every time that commercial plays. Viacom is claiming John Stewart, et al are not getting their residuals revenue from the unauthorized uploading of home-recorded clips.

It will be interesting to see how this will play out.

Hi Frank.

Thanks for the URL to the actual complaint document.

Hey

So, it seems a lot of Viacom's argument involves YouTube/Google intentionally infringing copyrights. I understand that there is obviously motive there, but that does not mean they are allowing copyrighted material on purpose.
Hypothetically, suppose one would inherit millions by his or her parents' deaths, and the parents die at some point. Even though there is motive and something happens related to said mortive, a crime has not necessarily been committed.

Additionally, why does it seem like some people just hate Google? (I'm speaking of some of the comments, not necessarily of Viacom)

This entire lawsuit is based on an inability to negotiate a licensing contract. Owners of content are pigs. They can afford to be as they are the sole source. The interesting opportunity would be to see how YouTube and other services create awareness and increased viewership for that content and increased advertising revenue for its owners. A test would be of interest to see how YouTube increases the viewership of said content or not. The internet carriers have no liability in this matter. And thats another story.

I love seeing lawyers fighting for money. Expecially when they start killing each other.
LOL!

Well I just look at it like this, everyone has heard of a tivo or a sling box. isnt that kinda the same thing except you have to buy a 300.00 dollar piece of equipment to do it. YOUTUBE is just helping those less fortunate and cant afford it. plus its not like they are DVD quality like TIVO. first it was music, then tv, whats next, online books. We might as well shut down the internet because we dont want to involve those downloading copyrighted porn too. When is everyone going to get together and realize, we pay their bills and we outnumber them by a whole lot.

I'm in the music business. I would not want someone uploading my artist songs and/or videos without our permission but on the other hand...if someone did and it was getting thousands of views per day like most things do on YouTube then I would not complain. I'd be jumping for joy.

How many times did folks view the Justin Timberlake Saturday Night Live video. You can't buy press like that! He was on all the talk show circuits after that. Then NBC comes along and cries foul. These media companies cannot have it both ways. Once their content gets really popular then they want it pulled otherwise they won't complain.

Copyrighted works need protection. There is no doubt that a large percentage of Youtube's value is due to the eyeballs they gained thru the unauthorized use of someone else's content.

YouTube's gained it value because they gave us what we wanted...control...just like iTunes.

YouTube will survive with or without big media's content. Look at iTunes...all the labels complain but nothing has come close to it's popularity.

They just need to sit back down and work out a deal or build there own "YouTube"..

Evan said :

Copyrighted works need protection. There is no doubt that a large percentage of Youtube's value is due to the eyeballs they gained thru the unauthorized use of someone else's content.

...

it's all someone else's content .. just saying

And does it really matter if YT is tied down by the possible success of Viacom's legal arguments? I mean, Napster died (folk seem to be bringing them up a lot) but the illegal dloading of music has not. And now we have iTunes et al as a balance to that issue.

It all seems such a yawn.

End-users move on, use a bit of lateral thinking, innovation occurs. I welcome the lawsuit, it brings change. This is about human behaviour, and it doesn't begin and end at YT, it begins and ends in someone's home; it's there that decisions are made regarding what is desired and how to get it.

I hope Viacom is successful, just because I'm interested in how user-habits and technology will evolve.

The comparisons to iTunes is just dumb. Users of iTunes pay for access to media content and the content owners get their share of the profits. This is exactly why Viacom gets upset when a piece of media goes viral on YouTube... because YouTube profits from the banner ads and shares non of the revenues with the content owner. If users get free access to this content and enablers like YouTube share revenues, then you'll finally see a solution. Right now YouTube is just being greedy and using passive techniques to get around this issue.

Feel I should jump in here just to say that in pure legal terms, according to the DMCA safe harbor protections as I understand them, Google and YouTube aren't liable for the infringements of their users. However, since the DMCA is an old document (late 90s) and its creators probably didn't foresee the scale and nature of infringement through vidshare sites, there is (and should be, IMHO) an opportunity for the courts to address the state of copyright and fair use when it comes to online video. That much, at least, should be welcomed.

VIACOM Blows.

I wonder what are the consequences on the Internet when this goes down.

It's clear where this is all heading. New distrabution models such as YouTube are being created where the content owners will get a portion of ad revenue based views. Google's strategy appears to be:
1. Show content owners how much money can be made from this new model.
2. Negotiate a fair revenue sharing model.
3. provide increasingly better tools for content owners to track the use and reuse of their content.

Content sharing services are unstoppable. In the new distribution models, DRM will only limit the value of the owner's content and their total revenue. Copyright law need to evolve... all this is going to take awhile. Content owners will benefit in the long run. I cheer Google for pushing copyright and content distribution issues forward in a tangible way.

When advertisers move en masse to web, pay the same CPMs or higher than TV, content holders will be ecstatic to have their stuff on YouTube.

Another classic battle between Old Media and New Media, worthy of the Napster Vs. Music Industry battle. Remember who won that? The music industry won the battle -it took down Napster- but lost the war. You can't stop change. Now here's some data: I'm a male between 25 and 35, making about $80k a year before taxes. Why I giving you this data? Because I'm the kind of guy Viacom wants to reach and it just lost me. If they learned from mistakes past, they would join NBC, CBS, BBC and other media companies trying to strike a deal with YouTube.

Viacom may win this one, but their business model is doomed. They're a dinosaur waiting to die, like the record industry.

I feel like evaluating each point, so here goes:

1. Valid, although most of YouTube's videos are not infringing, there are some that do, bad wording makes me suspect of the rest of the complaints. Also, this has minimal legal relevance.

2. Not valid, search engines are exempt and enabling a search is not infringing.

3. Not valid. First sentence says it all. Individual users are the ones claiming that they own the copy right to the clip when it is loaded. DMCA clearly invalidates this one.

4. Valid. Not a violation by itself.

5. Invalid. Statement is completely false. None of the top 20 views all time are being broadcasted without the original owners. Furthermore I don't see this YouTube/Google brand over them.

6. Invalid. In fact, YouTube does have a license from the person posting. It can be argued that the person posting is claiming that this is their original/fair use work, e.g. their copyright and by uploading it they (the uploaded) are granting a license. This is the most damming argument Viacom.

7. A matter of opinion, but to say that YouTube should somehow magically be able to distinguish between authorize and unauthorized use for every video is ridiculous. That would be like asking Kinko’s to ensure that no copyrighted materials are ever copied on its copiers. This is made even more difficult by the fair use provision of copy right laws. As for the notice provision, they comply with the DMCA by removing the clip when notified.

8. Invalid. Give the fair use provision, the appearance of tags either on the video or search tags is not a clear violation by itself.

9. Semi-invalid. There are no advertisements on the actual video page; therefore YouTube is not directly making money from that page. Second, the vast majority of the revenue comes from legal videos as the majority of videos are legal ones. Third, the court has yet to rule on the definition of directly, a strict interpretation of this might be user fees.

10. Semi-Valid. However, moving from the automatic removal of pornography to the much more grey area of identifying and removing copy righted material automatically is not as easy as Viacom wants to make it sound.
A. It would be very difficult to use technology to do that job while at the same time not infringing on the rights of the person doing the posting with one hundred percent accuracy, a task which would be impossible for a team of highly trained lawyers. It could be used to identify/flag potential violations, but Viacom does not want this to happen because if they claim that an original work is violating their copyright (i.e. they own it) Viacom could be held liable for up to $150,000, they would much rather YouTube just not publish it in the first place.

11. Valid, but not a cause for anything by itself. YouTube takes steps to protect it’s property/income, just like Viacom is now.

12. Invalid. YouTube has complied with the DMCA. Whether YouTube has employed “reasonable measures” does not matter, that is not what the law says. As for “shifting the cost,” it has always been the responsibility of the copyright holder to defend their copyright. Basically, Viacom wants YouTube to do their job.

13. Semi-valid. The law does not directly address this issue. However, the second part is false, YouTube does remove users who are repeat offenders and blocks the IP address of people who have been banned several times.

14. Invalid. While the statement is true, the DMCA says that the YouTube must remove within a reasonable time, thus allowing for a reasonable time lag between request and removal.

15. Invalid. They are complaining about a search limiting, when it would be impractical to give millions of hits. Also, they enable you to organize the search by date, thus enabling a copyright owner to search the most recent documents, those most likely to be of concern to them. Also, YouTube will give more search results if you send them a letter/email asking for it.

16. Semi-valid, with caveats. Here we get into the rights of a user to privately publish work if he or she chooses, with the right of a copyright owner to control their content. Not a basis for a lawsuit. If it was, the idea of a private network, even a private intranet could be found to be illegal,

17. Invalid. YouTube grants special rights and privileges in exchange for other rights and privileges, this is called a contract.

18. Valid. Prove the amount of damage already incurred. Let’s see, 1.5 billion views times an average length of 2:30 is about an audience of 75 million viewing hours of rerun content, the majority of which Google is not liable for because of the agreement signed in August. Also the ones responsible for the violation are the users, so restitution should be sought from the users.

So that leaves,

1. YouTube’s value is indirectly and partly based on infringing works.
2. Embedded videos and e-mailing videos from YouTube constitute public performance.
3. YouTube derives advertising revenue indirectly attributable to the infringing works.
4. YouTube has the right and some ability to control the videos on its site, and even imposes terms of use on uploaders. YouTube also proactively removes pornography, as the law explicitly requires.
5. YouTube also sends cease and desist letters to persons and companies that infringe on it’s copyright and patents.
6. Even if a company issues a takedown notice, the video reappears with only a small part changed.
7. YouTube also allows "friends" on the site to share videos privately, and which can't be seen by copyright holders.
8. Even if Google eventually provides copyright protection, that won't compensate content owners from the damage already incurred.

So what do you think. Reasonable cause for a lawsuit, I think not, at least as the law allows.

When Google bought YouTube, they removed just about all infringing content. Before that it was full of it, let's say 80%. Now even if you try hard, you won't find any. At least I can't. Maybe I just don't know the magic keywords, but to me it seems ridiculous to claim that YouTube's "value" is greatly derived from infringing content.

On the other hand, most other content seems to be video chat, for which there are better sites. Maybe google is buying Stickam next?!

Interesting,

As with most such law suits, they hedge until ther are of siginificant value, and that is why Viacom didn't bother until Google aquired them. Nothing wrong with this strategy, just smart, and with Google's billions, what is another billion to Viacom going to matter?

As I see it, Viacom has a good case as Google is a commercial entity earning billions off of Youtube indirectly, sounds like a good case to me. Copyright infringement against users will not fly, just as it is failing with Sony going after individuals, they scared some to settle, but is it stopping piracy, no, nothing will in my opinion, so the BIG cases are going to get BIG press, which will do more than scaring individuals who extract copyrighted materials.

Google sucks, hope they lose and have to pay Viacom their billion, plus ongoing fees which are fair and reasonable. People and companies have the right to control their personal private property, yet Google is violating their privacy protection, so this is wrong and Viacom is right in my opinion.

Privacy-Advocates

Privacy-Advocates said: ...so the BIG cases are going to get BIG press, which will do more than scaring individuals who extract copyrighted materials.

Seriously?

I'd agree if music piracy had actually withered and then died after the Napster-Grokster thingy.

This part of your argument reminds me of those US porn laws that came into effect a bit back; something about websites requiring on-site records of all persons in images and clips etc. Considering the global nature of the internet, fat lot of use that was. And not to forget that so many personal US-based sites ignore those requirements anyway.

Individuals may be mindful, but scared is stretching it. Also, this is a local issue between two American companies, at least at this stage and for the forseeable future. And by most accounts that forseeable future will run into years.

Viacom is right, obvious and blatant violations of copyrighted material should be prosecuted to the fullest extent of the law. Otherwise, there is no protection under copyright law. If you're gonna do it, show some respect and do it sneaky.........what, I thought everyone knew about anonymous torrents by now!

Well to me this is another avenue to put a price on the consumer using the web. This issue has so many loop holes and unprovable facts that it will never come to much. Plus it falls under or close to any company data farming without the written permission of the person being farmed. The main problem with everything is the shear open architecture of the internet. It is hard to control and to make a dollar. Let alone keeping a repeat business.

ya...about the whole Viacom thing... what do they do? i know theyre a company... duh.... but still why cant they stop complaining!? youtube has given pretty much everything on there that other people made tons of publicity! the more people like you, the more they might decide thqt they dint want to wait for youtube to have it and they might just buy it for themselves....

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