A Law Professor's Opinion of Viacom vs YouTube

troll -1 writes "Lawrence Lessig, a well-known law professor at Stanford, has an op-ed in the NY Times entitled Make Way for Copyright Chaos which references the Viacom vs YouTube case. What's interesting about this article is that it gives some historical perspective on copyright law and the courts. Up until Grokster, Lessig says the attitude of the courts was, 'if you don't like how new technologies affect copyright, take your problem to Congress.' But in the Grokster case the court seemed to rule against the technology itself, cutting Congress out of the picture. He also explains that Viacom is essentially asking the Court to rule against the safe harbor provision of Title II of the DMCA which should protect YouTube and others against liability so long as they make reasonable steps to take down infringing content at the request of the copyright holder. Lessig doesn't give us any insight into who's going to win but he does conclude that 'conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright."

Comments

Anlogous to Slashdot vs Scientologists

[CrazyJim1]

Is Slashdot responsible for it's user's material? No.
Should YouTube be responsible for it's user's material? Viacom says yes. Viacom doesn't want to get into the buisness of tracking down users individually.

Now is Google supposed to rat out offenders minimally? Or is Google supposed to become the user generated content police themselves? If they are, it sets a bad prescedent for all text forums online in that the moderator will have to make sure the posters aren't posting something copywrighted. I won't get into draconian measures an oppressive government has on free speech, even though it does tie in.

Re:Anlogous to Slashdot vs Scientologists

[foodogfoo]

Very true ... I see this debate almost everyday about users in various forums cut and pasting articles and sometimes the whole article. Too many shades of gray to figure it all out.

Re:Anlogous to Slashdot vs Scientologists

[OECD]

Viacom doesn't want to get into the buisness of tracking down users individually.

And that's exactly what this is all about. They're shoveling against the tide. They won the right to have the premptive say in what is or is not a copyright violation, but belatedly realized that it's a hell of a lot of work (ironic, since it actually mirrors the "opt-in" provision of all earlier copyright laws). Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

Re:Anlogous to Slashdot vs Scientologists

[TubeSteak]

Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

While Viacom (IMO) is on the wrong side of the law, Google/YouTube may have potentially created a problem when they instituted filtering for media companies that are willing to make a licensing agreement.

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

Viacom is going to make the argument that since YouTube has it, they should be forced to apply it on Viacom's behalf.

Re:Anlogous to Slashdot vs Scientologists

[sumdumass]

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed to someone else not having permision? Currenty, the person who can give permision has to say "hey, you don't have my permision" then goto the appropriate chanels to get the content removed if and when the user doesn't.

Now suppose as part of the user agreement to Youtube, It says you post only what you have copywrite to or permision to use from the copyholder. How are they going to verify the copyright is theirs or that the user has permision to use it? They need to contact the copyright holder. But the copyright holder isn't always clear when the posting consists of a few clips of some obscure show or scenes from some show that doesn't readily make it obvious what the show is. Are they now supposed to have a team of people that reviews every show, movie, song, book, whatever else that can be copywriten in order to scan ever file uploaded in order to see if it is someone elses and how to contact them to verify someone has permision?

It is the copy owners job to determine if their work is being used against their rights acording to the right given by the copyright. It is there job to give notice and request it stop. Google having some op in service is a way for the copy owner to let google/youtube know who does and who doesn't have permision to use a certain piece of copywriten work outside of someone saying they have the right to do so.

Re:Anlogous to Slashdot vs Scientologists

[squiggleslash]

Not really sure where he gets off on the conservatives vs justices thing above, because the decision in the Betamax ruling in 1984 was essentially made by the so-called liberals on the supreme court, and opposed by people like Reinquest. Betamax, indeed, was an expansion of fair-use, which isn't something Congress had explicitly ruled upon in any way relevant to the Betamax case.

Be that as it may, what, exactly, is the evidence that the court is going to rule against YouTube even if it shows it did obey the safe harbor provisions of the DMCA? I'd say exactly none. The Grokster ruling is completely irrelevant to this case, as the safe harbor rules were something Grokster et al went out of their way to avoid making even practical on their networks. Grokster's case was harmed by the central fact that they were relying upon piracy to make their networks commercially viable, as the numerous memos and other documentation entered into evidence made abundantly clear.

YouTube is an entirely different case, and unless Viacom can show that YouTube hasn't obeyed the DMCA safe-harbor provisions, even if they're able to show YouTube has acted in bad faith they're unlikely to win this. I find it highly unlikely though they'll be able to find anything about YouTube close to the overwhelming evidence that was available to show Grokster was acting in bad faith: YouTube's model has always been based upon people uploading their own videos, while copyright infringement is common it doesn't really make up the bulk of what's there and why people go to YouTube.

If the law is followed, and there's no reason to believe it will not be in this case, and if YouTube has been obeying the DMCA, I'm not seeing why they'd lose, and I'm certainly not seeing why a court would write new law just to damn them when the intent of Congress is clear, and when there's no evidence YouTube wants their network used for infringing material.

Re:Anlogous to Slashdot vs Scientologists

[lightsaber777]

I don't think he's saying "conservatives vs judges". The sentence "conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright." says that conservatives are warning that going against Congress on these matters is not the correct process.

Digital Rights Act

[geekbeater]

As the opinion piece clearly points out, a deal was struck by law in 1998...now one of those parties doesn't want to have to hold up its end of the deal. (Viacom self monitoring of content providers) It is always frightening when the courts make law, of course it is rightly obvious that is not their intended responsibility to do so...but the oversight of lawmakers has been usurped by their fear of not being re-elected...no one in congress wishes to show leadership...i.e. "rock the boat" as it were , heaven forbid if they can't stay on the DC party circuit.

Wrong arguments....

[zappepcs]

While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

I say that because Google/YouTube is one of the few companies that actually wants to provide such services. They have the right business model to do so, and they are making stars out of ordinary people. There is some evidence to show that YouTube sites et al will replace network television in short order if network television continues to suck and user generated content continues to get better. Mashups will make the 45,000+ channels of on-demand YouTube content even more coherent, and thus more attractive to the average viewer.

Back to the question on the table. The article clearly shows that what Viacom is pissed off about is that they have to look for the infringement on their own, or PAY YouTube to do so. Personally, I think Viacom is just whining because they are being hung with their own rope!

IMO, it would benefit the industry, the country, the world if YouTube wins. I say this because on-demand content is the future, and not the kind where you are paying DVD rental costs for each view. The on-demand video industry will replace television eventually, but it cannot grow to that size if the Viacom's of the world are allowed to destroy it before it gets off the launching pad.

Re:Wrong arguments....

[heinousjay]

People will do it for free! And it'll be better than the commercial crap everybody hates but downloads anyway, because it'll be done only with pure motivation! All those video blogs of people picking their nose while discussing the latest developments in their crusade against disease-free personal areas will provide our entertainment.

Ironically

[eclectro]

Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.

Re:Ironically

[limecat4eva]

The lasting legacy of this administration will be conflict and unrest engulfing everything from Istanbul to Islamabad. Bush will be remembered more for his neglect, incompetence, and tolerance of failure than for his appointments to the Supreme Court, which are frankly forgettable in the disastrous broader picture.

Who didn't see this?

[shrapnull]

Even before Mark Cuban stated that whomever bought YouTube would become a "marked" company, how many of us genuinely thought that YouTube could succeed with millions of leechers benefiting from loose standards under the guise of "Fair Use" and no income?

Google _had_ to expect this. They probably consulted Lessig _prior_ to purchasing the startup. The thing is, this is the showdown that we all expected. Does 'Fair Use' exist? Are content providers liable for member uploads? How is YouTube above the laws that Napster collapsed under? According to the "big, bad DMCA" the _victim_ has to prosecute, which in this case is Viacom, and by the same standards, they should be forced to go after individual users (uploaders) that are at fault, like the RIAA.

The real issue at hand is that copyright law is in complete disarray today. It has an identity crisis that makes such a risky purchase on Google's part worth pursuing on the off-chance that they can score several million more users and page impressions, while still weathering a lawsuit of this magnitude.

The justices will ultimately determine who the winner/loser is, not Congress. This is a rare stage in history where the "intent" of the law will determine its true meaning and either empower or enslave the people going down one path or the other.

WWSVD -- What Would Siva Vaidhyanathan Do?

[haaz]

Yes, what would Siva Vaidhyanathan do?

Lawrence Lessig, familiar name?

[Talennor]

Since when is Lawrence Lessig introduced on Slashdot simply as "a law professor"?

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

Re:Lawrence Lessig, familiar name?

[Bodrius]

No, he should be introduced as "Prof. Lawrence Lessig", and a short explanation of who he is should be in the summary, with some background links for context.

Much like Bruce Schneier is presumed to be a recognized authority in cryptography and security, Lessig is universally recognized as an influential authority on the field: copyright, software and IP in general. Whether he is right or wrong, his opinion most likely will carry more weight in and out of academia than other random law professors.

Mentioning Lessig as "a well-known law professor" loses a lot of context: both the weight of his credentials and influence, and the history of his work and corresponding bias.
While I agree with the original posters that his name on the title will be enough for most Slashdotters, just a couple of background links would let everyone see where he is coming from, and why an op-ed on IP from him has more effect than one by Harriet Miers, for example.

The problem is volume

[edwardpickman]

Youtube's business model has depended on copyrighted material for roughly half it's content. Their stance is tell us what you don't like and we'll take it down. Well they are effectively asking the copyright holders to police their site. Viacom will have to create an entire department just to police Youtube. Youtube benefits from the traffic while Viacom takes on the expense of tracking down copyrighted content. Let's say I start a TV network based on old TV shows. Half are in public domain and the other half are copyrighted. My policy is is you complain about a specific episode I'll stop broadcasting that episode. It's even worse with Youtube because it's like tens of thousands of TV stations running at the same time and even if they take down the episode some one can post it again minutes later. It's an impossible situation for Viacom. The only option other than fighting it is to let them run content for free. If they do that the advertisers will refuse to pay when large numbers watch commercial free postings. There's already been a drop in commerical revenues. The networks are facing a loosing battle and what it means is eventually little or no new content. In the old days just for primetime the networks would do three hours or more of content with even more non primetime content. Now nearly half of television is paid advertisements and a lot of the rest is reruns. The average for primetime content is less than two hours and dropping and a lot of that is reality TV. Network TV won't survive in the long run. People may not post and file share lesser shows but they will the popular ones and those are the profitable ones due to commercials. Take away the profit and TV goes away. The only other option is going to a BBC system where tax money is used for broadcast TV and the budgets of the average show is pocket change.

Re:The problem is volume

[grmoc]

Yup. Welcome to the internet and the new paradigm.

I have little sympathy-- They want absolute control over the works, for 70 years, despite the obvious fact that this is not what the market wants! The market wants a more dynamic approach to content acquisition. If they'd embraced the technology, instead of fighting it, then they wouldn't have to deal with the consequences of the law which they pushed for.

Instead of content on demand, we have a seeming dearth of good programing, and an increase in the amount of advertisement. One has to wonder if either of these factors have a role to play in the movement of content from the authoratarian control of the network execs to the more facile playground of the 'net.

Keep in mind that a fair bit of what people communicate is expressed in common shared experience, and a chunk of that shared experience is copyrighted content, so of COURSE people are going to want to share that with others if they want to communicate with them!

I keep hearing a lot of sympathizing for the copyright-holders, but am not seeing the real change to their bottom line. What I AM seeing, however, is a lot of fear and uncertainty about the future of the content distribution and control channels that these companies have established. I am also seeing a lot of artificial roadblocks being thrown up in the face of actual innovation. The face of technology has been altered, and convenience sacrificed, and it -appears- to be based on fear instead of fact.

Random interesting points:
Viacom had a gross PROFIT of 4.8 billion dollars in 2005.
Viacom had a gross PROFIT of 5.4 billion dollars in 2006.
Hollywood makes most of its money now from DVD sales, and not necessarily from broadcasting or theater showings.
We pay money for cable TV today. It didn't used to have ads on all the channels.

Pawn Shop versus Fence.

[goombah99]

When does a Pawn Shop or Consignment Shop that accepts stolen goods become a fencing operation. Presumably it has to do with if the pawn shop owner knew or had reason to suspect the items were stolen. But of course we know that's not good enough. We must also expect the pawnshop owner to make a good faith effort to determine if the goods were stolen. Otherwise we end up with a bunch of Sargent Shultz, winking de facto fences. (I know nothing!). Yet we also can't expect the pawnshop or consignment owners to work so hard at establishing the provenance or they can't exist as a bussiness.

Now scale this up to the point where the consignement owner has both slashed his margins to the bone, and is accepting and reselling so much merchandise he literally hasn't the staff or time to check. Then you have E-bay.

E-bay is a consignment shop that is not really meeting the good faith effort that is the industry standard for pawnshops.

One the one hand, who gave them a free pass on making an effort? On the other by having a huge customer base and low margins, they in some ways have created a new industry. They are arbitraging the junk drawers and attics of america. Putting all that goods back into circulation effectively increases the wealth of the nation, and also means less waste of resources to remanufacture items. It's giving people who could not afford goods, those goods at lower costs, and it's also encouraging others to buy new goods they might hesitate to buy because they know they can cash them out later.

So arguably it's good for the nation.

How to we resolve this dichotomy: promotes illegal activity and is below community standards for good faith effort to prevent that activity versus promotion of healthy commerce at a mega scale.

Hmmmm. Hell if I know. A freind of mine had his skis stolen. One assumes they probably went on e-bay. He also bought a pair of skis to replace them on e-bay at a below wholesale price. Coincidence? Ebay has lots of legit merchandise but it's a good place to sell stolen stuff too.

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

Re:Pawn Shop versus Fence.

[mike2R]

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

The difference is that the DMCA makes it crystal clear that YouTube is meeting it's obligations as long as it takes down infringing content when the copyright owner points it out.

This was a deliberate decision made by congress, aimed at allowing businesses like YouTube to have a sane set of rules to follow. If Viacom don't like it they should convince congress to change it's mind. They don't think they can so they're asking the courts to "interprate" the law until it says what they want.

Your reasoning is perfectly valid, but it isn't for the courts to decide since the legislature have passed a law on exactly this issue.

Grokster is in favor of YouTube

[Petey_Alchemist]

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

Let's look at the holding:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirma- tive steps taken to foster infringement, going beyond mere distribu- tion with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the deviceís lawful uses.

This does not apply to YouTube. YouTube, by actively discouraging infringers by being *overzealous* when pursuing alleged infringers (see Chung, Anshe; Crook, Michael), and plasting the site with warnings, and setting annoying upload limits that are shorter than television episodes, is not conducting itself in any manner remotely analogous to Grokster.

Technologically, YouTube is more analogous to the Napster case (centralized database, ability to terminate users). But Napster was never found guilty--it was just found that an injunction could be filed against them, and the legal costs forced bankruptcy.

I do not see Viacom winning this case, and I am surprised Lessig didn't opine similarly.

Re:Grokster is in favor of YouTube

[julesh]

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

That's not Lessig's point: his point is that in making the Grokster decision, the court effectively created new liability for an action that wasn't covered by legislation. This is something they've previously shown themselves unwilling to do. If they do the same thing in this case (i.e., create new liability that doesn't originate in legislation but which protects copyright holders more than the legislation does), they could find against YouTube.

Bizarrely, I think he's wrong. Yes, I know he knows more about law than I could ever hope to, but I think his bias is blinding him to a simple fact: the liability in the Grokster case was not new. It was simply combining existing theories of liability in an obvious but previously unused way (kind of like most software patents...). But any finding against YouTube would have to be completely new: it would need to find a way to limit the safe harbor provisions of the DMCA in a way that has never been done before. Going up against a lack of legislation is easy, you can find ways around the edges. A lot of law is like that. Going up against solid legislation that says your case should be thrown out is rather trickier. You have to confront it directly.

It's funny. Laugh.

[Short Circuit]

As someone else pointed out, pasting text articles into forum articles is related to the kind of copyright violation issue Viacom is suing over.

So someone posting the comment of the article in the Slashdot discussion, considering the article isn't slashdotted, is, well, funny. But it illustrates that Slashdot is subject to the same types of copyright violation.

IIRC, CmdrTaco and friends already had to deal with it once before, with the Scientologists. (Though that wasn't a copypaste of a linked article...)

Re:Mark Cuban has one very persuasive point...

[Antique Geekmeister]

No, I'm afraid not. It's easy to tell on even a casual glance whether a video has nudity or pornography. It's quite awkward to search for copyright: verifying the copyrights alone is a job for a seriously large legal department, especially with "fair use" laws or policies.

If Viacom is Smart...

[Stanislav_J]

...then they are just looking for a big payday from Google's deep pockets, and are using the suit to force them into some sort of deal the way some other content providers have done. Realistically, there is no way to effectively police millions of clips uploaded on a daily basis for copyright violations any more than Slashdot could police every single post on its site to see if there is anything infringing, libelous, or somehow illegal. And don't forget, YouTube is NOT the only game in town -- they may be the biggest and most popular such site, but many times I have seen a clip that was killed on YT simply turn up on a dozen other smaller video sites -- I don't see Viacom going after them. If you had a physical product that was being sold illegally, you're going to sue Wal-Mart, not Bob's General Store -- you go where the money is.

BUT, sometimes these things depend more on the attitudes and personalities of the rights holders than anything else. I can give an example of that on a much smaller sale. I have an acquaintance who had been providing short, out of context clips of some obscure TV shows that (a) are not being rebroadcast anywhere and (b) are not likely to be offered commercially in any form because there is simply not a big enough market for the material, and it would not have been profitable for them to do so. His efforts appealed to a very small, narrow group of fans. Nonetheless, he received a C&D letter, a threat of a lawsuit, and a demand for compensation from the holder of the rights to these shows. His argument that the owner was not making a dime off the material, and indeed had no intentions of doing so, and that therefore he was causing no financial harm to them, fell on deaf ears. Because, basically, you can own a copyrighted work, and lock it away in a vault never to be seen again, and still demand that no one else make use of the material. He said that the responses he got from their legal eagles were almost petulant -- we don't care that we have no intentions of making any money off this stuff -- we don't want YOU to do so either. (Even though his compensation in this case amounted to a handful of small donations that users sent to help support his site.)

So, clearly, this was a case in which attitude and a strict adherence to the letter of the law were far more important than the money involved, which was, on the rights holder's part, nothing, and on the infringer's part, pocket change. While this is hardly directly analogous to the Viacom-YouTube situation, it does demonstrate how it's not always about the money. To repeat, if Viacom was smart, they would just seek a big licensing payout from Google and be done with it. But, for all we know, Viacom's masters may be anal, set in their ways, and motivated by the notion of an affront more than anything -- this is OUR material -- how DARE they use it -- we're not going to be forced into a deal with them even if it means a big profit for us -- WE will control who uses our stuff.

Re:Mark Cuban has one very persuasive point...

[Siguy]

Your argument would make sense if youtube just had obscure and unknown copyrighted clips showing up. If it were just random BBC shows no one has heard of. But when episodes of South Park, the Simpsons, Family Guy, etc etc show up, no, you do not need a set of lawyers to figure out what's going. And I'm not even talking about video mashups and parodies and other gray areas. The fact is that Youtube makes no effort to block completely obvious copyright infringement when they already clearly have the capability to do so based on the porn precedent. Now if they stopped allowing full episodes of shows and movies to linger for weeks and the only things showing up were 2 minute clips or parodies or obscure shows, then I'd agree with you. But it's not like youtube users hide what they're doing. Most of the time they just link three ten minute clips together and label them "South Park 403 Part 1" "...Part 2" and so on.

YouTube Summer of Art?

[zotz]

"That being said, Youtube is doomed eventually, maybe this case, or another."

I am not so sure...

YouTube Summer of Art anyone?

Put up some nice prizes in several categories. Contest rules like so:

1. Make and post videos in some category. License must be copyleft.

2. Put all "raw materials" that went into the video up somewhere like the internet archive. (Google could host for free as well I guess.) This is for reuse by all in the next contest that will be held.

3. Winners determined. (How? Most popular on YouTube itself? Some other way?)

4. Winners get a nice budget to make more copyleft videos.

Whatever.

If the "content" industry insists on hamstringing the tech industry, the tech industry might need to fund alternate content. Content that can't be used to hamstring new tech but would rather promote new tech while that same new tech promotes that content.

all the best,

drew

http://www.youtube.com/watch?v=vcaf2ThG7q4
UFO seen in skies over Winton!

Larry's off base (again)

[pixelm]

Viacom is not trying to renegotiate the DMCA - Lessig is. And he's trying to persuade the Supreme Court to agree with him. The DMCA protects passive storage - think web hosting companies. YouTube obviously has knowledge of what's up and filtering is implemented in a lot of places, including MySpace (with approximately equal volume). In short, YouTube is arguing that it can sell content to users (by advertising to them), but doesn't itself know what's on. Lessig argues that the court in Grokster was wrong because it found a technology to be bad. It didn't. P2P continues on - its a platform for telephony (Skype) and even licensed television (Joost). What the court found is that if you write a business plan that says "let's find out where burglars hang out so we can fence their stuff" you have crossed the line from a second hand store to a co-conspirator. Viacom argues that YouTube should do what it can to eliminate known infringements - what's wrong with that? If you put yourselves in the shoes of any artist - how do you feel when someone is profiting from your stuff without your permission? And how could you possibly police every company that sets up a user-generated content site? Viacom's not asking for YouTube to be shut down - only that it act responsibly. If you're constructing a building and cause damage to the building next door - you fix it and keep on building. Doesn't seem unfair.

Re:Larry's off base (again)

[hey!]

The DMCA protects passive storage - think web hosting companies.[emphasis mine] YouTube obviously has knowledge of what's up and filtering is implemented in a lot of places, including MySpace (with approximately equal volume). In short, YouTube is arguing that it can sell content to users (by advertising to them), but doesn't itself know what's on.

"DMCA protects passive storage" is a pretty narrow restatement of the safe harbor protections of DMCA.

I think it's more accurate to say that the provider cannot knowingly participate in copyright infringement for its own private gain. And narrowly speaking, Google really doesn't know what is going on.

While I'm sure that Viacom will try to argue that YouTube knowingly violates DMCA in each instance of copyright infringement, it's a pretty hard sell. I wouldn't be surprised though if they end up arguing in the alternative that Google, while not technically violating the DMCA, is negligently encouraging and enabling users to violate Viacom's rights under the DMCA.

Here's where Google's technology gets them into trouble. While they don't know whether any individual submission violates copyright, they clearly plan to analyze the text related to it in order to sell advertising. Then surely they could detect whether a submission is a probable violation of Viacom's copyrights. If they simply charged users for the right to put up data (like a web hosting provider) then they couldn't be said to benefit from the copyright infringement. But in this case they do benefit; if somebody puts up the video of the next Spider Man movie, and people flock to download it, then Google is benefiting from that because of their business model. The question is, are they knowingly doing so?

In my opinion, no system of copyright infringement detection would ever work well enough to be practical on its own. Leaving aside the fact that copyright holders like to post things on YouTube themselves to promote their work, no automated system will be able to distinguish infringement from fair use of, or simply accidental connections to, copyrighted materials. Not unless it has a living, breathing lawyer attached to it.

That's the point of safe harbor, a kind of division of labor. It has to be the responsibilty of the copyright holder to police its copyrights. The service provider's responsibility is to cooperrate vigorously with the copyright holders when they find an infringement. To hold Google in violation of the DMCA is to reintepret Title 2 in exactly the way the parent poster has: to protect only "passive storage". My belief is that if Congress intended this, they could have said so plainly. Instead they said the service provider must (a) benefit (which Google unfortunately does) and (b) have the ability to control the posting of infringing material (which Google clearly does not have). Google is in a position to investigate whether a piece of information infringes on copyright -- probably better positioned than any other company in existence. But this doesn't change whether the DMCA itself requires them to investigate everything their users do. Google may have such a responsibility, but I don't think it's in DMCA itself.

Viacom could reasonably argue that Google is negligent in creating a service that is so convenient and popular with copyright infringers, but they can't reasonably argue that they have suffered damages as a result of this if they have made no efforts to police their own copyrights; if they have not been dilligent in finding infringing uses and issuing takedowns, if they have made no effort to discuss means by which infringers can be stopped. If they take none of those steps, this would imply they look at the infringements as harmless or even beneficial. While they aren't required to defend their copyright, it looks pretty weak if they waltz into court claiming massive damages, given that they haven't made deperate efforts to head off those damages. In fact, given that this follows YouTube being acquired by a cash rich company, it's a transparently opportunistic attempt, not to stem or recover damage, but to make a buck in court.