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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.'"
Does it really surprise anyone that Viacom has skeletons in its own closet?
Do as I say, not as I do...
This guy's the limit!
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.
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.
ZuluPad, the wiki notepad on crack
Your argument would be true if there was some law that would require YouTube to install filters. However, Viacom is asking a court to order GooTube to do this as a matter of public policy. When making considerations about public policy, judges would probably be persuaded by the argument that if it's too burdensome for the plaintiff to do it, why should the defendant do it when there's no law mandating it?
iFilm has been purchased by Google, and is now being sued for $1 billion by Viacom. Film at 11... (oh wait its copyrighted by Viacom, never mind!).
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.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
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.
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.
When information is power, privacy is freedom.
if YouTube could say, "We take proactive steps to limit infringment, and respond within our stated guidelines to complaints of infringement. Viacom does neither." YouTube could be seen as coming up short on the limit side...They do, however, as far as I can tell, jerk videos pretty quickly upon a claim of infringement.
I think it's more like, "Your honor, the industry standard is to not self-police your sites. It's a public site and people can upload copyrighted material. All Viacom has to do is tell us which items are infringing and we can remove them. See, even Viacom doesn't self-police themselves on iFilm..."
There's sort of a fine line between the two...
The key thing here is Judicial Estoppel. Anything Viacom says in court in their case against YouTube, they cannot contradict when they are the defendant in someone else's suit against Ifilm.
What sound do people on rollercoasters make? Hint: it's not Xbox 360.
iFilm doesn't have RSS feeds for Daily Show episodes or Colbert Report. I've put together these two feeds using Dapper and Feedburner: Daily Show Clips on iFilm (http://feeds.feedburner.com/DailyShowiFilm) Colbert Report Clips on iFilm (http://feeds.feedburner.com/ColbertReportiFilm) Link to blog entry on this
The media companies themselves aren't stupid. Look at the All-Time Most Viewed on YouTube. We've got OK! Go (a band signed with Capitol Records/EMI, an RIAA member), Nike, SNL (NBC), My Chemical Romance (a band with Reprise, a Warner Bros. label, also an RIAA member). Record labels are on it, production companies/ film studios, and a heck of a lot of networks. Here's a short list of partners.
YouTube (and sites like it) should be treated a bit different than the Napster of old. It holds a lof of other advantages over "old piracy", all of which is extremely useful to owners of the copyright:
There's a lot more to this, of course. But networks (finally!) aren't being total idiots. As far as I know, the three major networks (ABC, CBS, NBC) all let you stream shows for free through their sites. Other networks may be doing the same thing (to some extent, Cartoon Network's Adult Swim, Comedy Central, and the Sci-Fi channel do this). I don't think YouTube is the be-all and end-all in matters of online media. I'm speaking alot about them just because they're referenced in the article and they're the 'Video_blog Portal 2.0' (or whatever) that I'm most familiar with.
It gives me some hope that user response seems about as positive as Napster and the media conglomerate's response has been a hell of a lot more tempered; consumers get content for free, media creators/owners/distributors lose less control. Sure, crazy DRM schemes still pop-up, but this gives me hope that we're progressing positively. I'll take non-intrusive DRM as long as it does no harm and I get content for less (or free), not for the same price or more.
Small potatoes make the steak look bigger.
IANAL either, but this is the doctrine of unclean hands. It can be used to get the YouTube case laughed out of court. Which it should. Viacom is expecting YouTube to do something Viacom does not do itself on its own, similar website. Buh-bye, Mr. Redstone.
Knowledge is power. Knowledge shared is power multiplied.
Addendum;m l
Shouldn't this be handled via the WPIO?
http://www.wipo.int/members/en/decision_bodies.ht
There are only two steps in the gathering of ultimate knowledge. Open your eyes and, RTFM!
...all are equal, just some are more equal than others. At least a variant of it. :)
http://www.google.com/search?q=youtube+license+fi
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.
[Fuck Beta]
o0t!
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.
Is it just my observation, or are there way too many stupid people in the world?
Not exactly. However, it goes to underscore the unreasonability of Viacom's request, and to further illustrate the fact that even the most stringent procedures in this arena will let stuff through. I'm telling you, though, that under Grokster and Sony Viacom doesn't have a chance to win.