iFilm Infringement Could Blunt Viacom's YouTube Argument

Radio Silence writes "Infringing videos on iFilm could undermine Viacom's case against YouTube. Although it's arguably not a nest of infringement like YouTube, iFilm appears to host more than a handful of videos for which its corporate parent Viacom does not own the copyright. More importantly, Viacom isn't engaging in the kind of proactive infringement identification practices it expects of YouTube, which may cause problems for them in court. 'if Viacom isn't willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case. "It would have some persuasive value with a judge if YouTube says 'look, they're ranting and raving about all this infringement occurring on my site and they're not doing anything about it themselves,'" said copyright attorney Greg Gabriel.'"

Comments

Skeletons

[MintyGreenMedia]

Does it really surprise anyone that Viacom has skeletons in its own closet?

Re:Skeletons

[Seumas]

I don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrights, they would do so. This isn't about right and wrong or philosophical points. It's about money. Viacom makes money by preserving their copyrights. So they prosecute infringements. Youtube makes money by violating copyrights. So they justify infringements or at least try damn hard to excuse them.

Re:Skeletons

[Nwallins]

But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. Interesting form of judgement you've developed there...

Re:Skeletons

[arevos]

don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrights, they would do so. This isn't about right and wrong or philosophical points. It's about money.

The case also may set an important legal precedent, and I suspect that's why most people are interested in the case, because it's likely that the result of this decision will later affect smaller content hosting companies and individuals.

Re:Skeletons

[Anonymous Coward]

But do we hold bars responsible of other people give drinks to obviously intoxicated people? If the bartender refuses to server Patron A because they are drunk but Patron B goes and gets one for A, is the bartender responsible?

Re:Skeletons

[SquareVoid]

That is a stupid analogy. Try this one: Do you expect to hold FedEx or UPS accountable for the delivery of drugs to people's houses?

Re:Skeletons

[RexRhino]

The morality of an action has nothing to do with the intent. If someone thinks they are helping you by kicking you in the head, they are still doing you harm. And if they think they are harming you by curing a disease, they are still doing good.

In this case, YouTube might be acting to maximize its profits, but the way it is doing so benifits the rest of us. Society is benifited by having a place where it can freely exchange video, and it would be harmed by effectively criminalizing such a service. Therefore Youtube is right, and Viacom is wrong, despite the fact that both are simply trying to make money.

Re:Skeletons

[poot_rootbeer]

we hold bars accountable if they serve alcohol to patrons who appear to already be intoxicated

And what we DON'T do is require bartenders to administer a breathalyzer test to every person who places a drink order, which is what Viacom is saying YouTube should have been doing.

do

[gEvil (beta)]

Do as I say, not as I do...

Re:do

[TubeSteak]

FTFA:

Viacom responded with the following statement: "Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site." A search using the term "NBA Brawl," however, returns a number of clips of televised footage of both NBA and college football fights and it is not clear that Viacom owns the copyrights on those clips

Wow... what damning evidence of Viacom's infringement.

In fact, it looks a lot like what one would find on YouTube.

Right Ars, a small fraction of YouTube involves sports brawls.
Now show me on iFilm where I can watch a season of [TV show].
If Ars can't do that, they're just being asinine.

Re:do

[Red Flayer]

Right Ars, a small fraction of YouTube involves sports brawls.
Now show me on iFilm where I can watch a season of [TV show].
If Ars can't do that, they're just being asinine.

Why? Substantive infringement is substantive infringement, regardless of scope.

And as for a small fraction of iFilm video being copyrighted sports brawls, it's only a small fraction of Youtube that's a full season of copyrighted television shows.

In a civil suit such as this, Viacom definitely has a problem if it can be demonstrated that they do not take the kind of precautions they are demanding of the competitor they are suing.

Re:I dont see this as an issue...

[FasterthanaWatch]

Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.

Re:I dont see this as an issue...

[omeomi]

That would be true if they were suing for something that was obviously illegal in the first place. However, it's important because they're trying to argue that something ambiguously legal is actually illegal. The DMCA has a provision that indemnifies companies like Google from lawsuits if users upload copyrighted material. All they're required to do is take it down once they've been notified, which they have been doing. Viacom is arguing that they shouldn't have to police YouTube, and that Google should be pre-screening content. What they're essentially saying is that the "Safe Haven" clause of the DMCA is not legal. But if they're doing the exact same thing, it makes it much harder to argue.

I don't agree

[hey!]

I'm not sure the judge will or should accept a tu quoque ("you're one too") argument. If A steal's B's car, and B steal's C's car, A is not off the hook for car theft.

I think more to the point is the question of when Viacom became aware of YouTube, and what steps they took when they found out. Even if Google is found guilty of violating DMCA, if Viacom didn't take reasonable looking steps (e.g. using DMCA takedowns), Viacom is going to have a hard time arguing astronomical damages.

I'm not saying Viacom has to defend its IP to keep its rights. I'm saying that if their actions look like they weren't all that concerned, it makes the notion they lost a billion dollars worth of revenue a bit hard to swallow. If Viacom was issuing takedowns like made, and just couldn't keep up with the new postings, it might be credible.

Re:I don't agree

[gnuASM]

I'm not sure the judge will or should accept a tu quoque ("you're one too") argument.

Although the fact that Viacom's iFilm also has others' copyrighted material on it, there are other ways of using that information in court. Google could use this information to strengthen their position of the safe harbor provisions by pointing out the "fact" that Viacom currently uses such provisions on its own competing service. I very seriously doubt that Viacom would admit on record that it intentionally violated another's copyright, as this could be used in criminal charges against Viacom, could it not?

And, if Viacom claimed that the presence of such material on their service was not known to them, and that their policy would be to remove it when the fact of infringement has been verified, then Google could use the same argument in the court that they uphold similar policies and that Viacom did not utilize due diligence in notifying Google/YouTube of the existence of such material on their service.

I'm not saying Viacom has to defend its IP to keep its rights.

I believe my above statement touches upon this. Google is protected under the safe harbor provisions provided that they do three things. The safe harbor requirements are and provisions, not or provisions. Thus, Google/YouTube must meet all three requirements of the safe harbor provision to be protected. These provisions are:

`(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

`(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

`(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

`(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

`(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

C. if Viacom did not issue a take down notice, then Google/YouTube has met with the DMCA requirements and Viacom did not conduct due diligence in protecting its IP under the safe harbor provisions of the DMCA. If Viacom did send the takedown and it met with the requirements in paragraph 3 of section 512, then Google is doomed.

A. if Viacom, again, did not send a take down notice, then Google is in the clear through their non-policing policy, thus they would not be aware of such activity without due diligence on behalf of the copyright owner.

Here is where Viacom is evidently making its claim:

B. Google/YouTube has in fact received financial gain through its service. I believe that this fact will not be disputed. However, the provision requires that the service provider must have the right to control the infringement (which they do). This may be defended, however, by the lack of due diligence of Viacom with regards to provision A. But, there is a second AND requirement to fall outside the safe harbor provision. The service provider must also have the ability to control the infringing activity. Because of Google's policies of non-policing the users' uploads, Google/YouTube is reliant upon Viacom's due diligence in policing it's own copyrighted works. The DMCA already contains the legal provisions for a rights holder to protect and police its works. However, again, Viacom seems to show a lack of due diligence.

I believe this is where the case will ride: whether or not an OSP is required to police its users' activities. As far as I know, the DMCA

Re:I'm confused

[chalkyj]

YouTube can, however, say "What you're asking for is unreasonable. Sure, you claim it's reasonable, but you're not even willing to do it on your own site and yet you expect us to?" - which does seem to be a valid argument.

Re:I dont see this as an issue...

[Jah-Wren Ryel]

I've never been impressed with the "they did it too!" defense.

Good thing you are not the courts then. Because, "they did it too" is one of the primary defenses against assault with a deadly weapon -- if some guy is punching you in the face, then you have justification to hit back with anything you've got. If he was just standing there, doing nothing, then you've got no justification to assault him.

Re:So what are they really after?

[jusDfaqs]

Addendum;
Shouldn't this be handled via the WPIO?
http://www.wipo.int/members/en/decision_bodies.htm l

Re:I dont see this as an issue...

[TubeSteak]

Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.

Maybe you're not aware that YouTube already filters uploads, but only for licensees.
http://www.google.com/search?q=youtube+license+fil tering

As I've said before, even though I think Viacom is on the wrong side of the DMCA, the fact that YouTube can and does filter may cause Viacom to win some of its civil claims.

Re:If Google bites, it's good for Viacom...

[Overzeetop]

Actually, this can still be played in favor of Google.

Rather than pointing out that "Viacom is breaking the law, too," they will note that Viacom, via iFilm, is also practicing the industry standard which relys upon the safe harbor provisions of the DMCA. Even if iFilm changes its stance, Google can point out that they were all operating under the same expectation of safe harbor, and the Viacom has only recently changed their policies in order to try and unilaterally change the industry standards. The damage is done. iFilm can try and change their operating procedure, but it can be made to look like a political move by a good defense team.