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YouTube Fires Back At Viacom
NewYorkCountryLawyer writes "As we say in the legal profession, 'issue has been joined' in Viacom v. YouTube. In its answer to Viacom's complaint (PDF), filed Friday, YouTube says Viacom's lawsuit is intended to 'challenge... the protections of the Digital Millennium Copyright Act ("DMCA") that Congress enacted a decade ago to encourage the development of services like YouTube.' It goes on to say that the suit 'threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.'"
Now YT, bring back xenutv1 (since you cancelled it because of the original xenutv that you cancelled because of a Viacom complaint) and I might consider calling it even.
-uso.
What you hear in the ear, preach from the rooftop Matthew 10.27b
The best part, in my opinion, is that they requested a jury trial. If they get that, Viacom is even more screwed.
Even if Viacom were to win this, they would still be losing out.
Where is the first place I go to find clips of a show? Youtube. After that I head off to google in hopes of finding it somewhere else.
Would I go over to Comedy Centrals website? SpikeTV? MTV? No, because these sites are cluttered with garbage and intrusive AD supported video players. I usually get lost at these sites anyway.
Also, I'm 22, the perfect demographic for these opportunities and you've seem to have alienated us over the years with your garbage websites.
The loser in this case will be whoever has the smallest bladder.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
In response to all your claims:
"No we didn't."
the difference -- google's pocketbook.
The only other point Viacom has is that YouTube transfers all video into their own 'proprietary' format and then 'copies' it (by which, I assume, they mean "show it on multiple instances of XYZ web browser"--or maybe backups). This is akin to saying that WordPress has its own proprietary format for blogs, by which it copies and distributes information. What a joke!
And things get funny toward the end of the response, too. YouTube denies point #24, which reads: If you can't even get that right, you may as well just give up!
My prediction (and hope) is that Viacom loses this one quickly and effectively.
If you want news from today, you have to come back tomorrow.
The DMCA is not the root of all evil? I'm so confused...
---- Liquid was a patriot ----
I've been increasingly concerned about this in the past, but this suit seems to add significant evidence to my thesis.
As I remember, the DMCA has a safe harbor provision for "platform" and "network" providers that, basically says - as long as you don't exercise control over the content on your platform/network, you cannot be sued for infringement, the plaintiff must sue the one who uploads/transfers using your service.
However, YouTube has entered into agreements and instituted technology to pre-emptively purge it's "platform" of copyrighted material - Therefore, they are no longer protected by the safe harbor.
I would hazard a guess that those network providers who implement the pre-emptive content blocking of copyrighted materials being shared by peer-to-peer filesharing will eventually also be targeted.
It's interesting that the *AA are insisting on pre-emptive content filtering and the network and platform providers are giving in -- not realizing that in doing so, they cease to be protected...
IMHO - The *AA knows they soon will no longer be able to go after end users - the handwriting is on the wall. So they are setting up the next wave of lawsuits - network and platform providers. Since these are typically corporations that will simply pay to get rid of a lawsuit, it's easy money.
But in order to sue them (or have a reasonable threat), they have to make sure the safe harbor provision does not apply. As soon as a network or platform provider begins to filter the traffic or content, the safe harbor doesn't apply and they're fair game.
Remember that stupid $250,000 judgement the RIAA managed to get out of a jury? That the jury was stacked full of people who had never used the internet? How they were given improper instructions and bogus theories of "making available"?
Think how much easier it would be to find a jury that knew nothing about YouTube. They would eat up bullshit from Viacom about how Google became popular and made all of it's money off their garbage. They would know even less about slimy operations like Media Defender. Google could show them quirky home videos and free professional videos from the site and tell them that this is what the site was all about but it would be too foreign for the to understand. Society still has expectations that are warped by 90 years of government granted monopoly broadcast.
It will take another generation to heal and that will only happen if this trial goes right.
"Legitimate" seems like a word that both sides in this case (and in most "intellectual property" disputes) want to claim as their own. The person saying it attempts to sidestep the entire debate of what makes a use "legitimate" (for whom, how, etc.) and hopes that the audience just assumes that he objectively knows what a legitimate use is (and agrees with his unspoken definition). Of course, those questions go to the heart of the real issue.
Correct me if I'm wrong (not uncommon), but is ViaCom actually arguing that they should be able to surreptitiously upload content to YouTube, and then sue YouTube for hosting illegal content, since it's not provably there "with permission"? Barring YouTube's (highly unlikely) ability to prove ViaCom's uploading of a piece of content, how would YouTube otherwise defend against such trawling for awards?
The DOJ jumped in to approve of everything the RIAA won in that case. It's sickening, but it is probably closer to the average public opinion than Slashdot is. We live in a country that basks in hateful, idiotic talk radio. Most of that toxic sludge is directed and purposeful.
I am a name troll of Westlake. Visit my homepage to learn why.
...which one do I side with? Which one will get the Slashdot "little guy fighting the big guy" medal of honor? I just... I don't know. On one side you have a multi-billion dollar corporation that seems to want to make money... and then there's the same thing on the OTHER side. Oh noes!
You must be new here.
I think the point is that "Delaware corporation" is not an "Delaware limited liability company". Tim S
Your rights are more important than YouTube. If Google wins, anyone can run a video sharing website the way Google does. If Google loses, no one can. The survival of YouTube and Google are less important than the principle being fought over. A Google that "pays a license fee" the way Napster did will be just as useless as the emasculated Napster was.
But I fully agree with you. For myself, I would request that a judge, not a jury, try the case. In the same case you mention with the $222K judgment, the judge has since ordered a retrial because he found that his jury instructions were correct.
That's as honest and commendable a thing as a judge can do, especially because the RIAA "neglected" to inform him of controlling contrary precedent (even though, IIRC, it came from a case they were in).
Alas, my (biased) view based on events so far says that judges are impartial, juries are ignorant, and the RIAA are sleaze.
Hmm. Could be true... but then, if they decide to use that ploy, they'll lose all the 'goodwill' that these services spent in trying to give them better tools to fight copyright infringement in the first place. These service providers aren't going to give up and die if they can help it, and they've got fairly deep pockets too. So, what happens? They completely backtrack on all of the tools and filtering and the *AA goes back to square one.
You don't think that anyone who is curious will figure out that all "westbake" has ever done is post comments agreeing with twitter and all your other accounts?
The twitter monologues. Click on my homepage and be amazed.
Commenting anonymous so the group-think drones don't karma-kill me for saying something they dislike.
The notion that filtering somehow invalidates the Title 17 Section 512 copyright infringement safe harbor is complete and utter bullshit which has gained inertia on Slashdot only by sheer repetition.
Please cite the exact line of the statue which you believe creates this effect before repeating this nonsense again.
The protection provided for service providers by OCILLA for service providers is damn near absolute, so long as they don't have actual knowledge of the infringement and so long as they comply with the takedown procedure. There is absolutely no requirement for neutrality or lack of filtering.
Viacom is arguing, among other things(*), that when the procedure is combined with anonymous users and the enormous scale of sites like Youtube that copyright is effectively nullified as an unintended side effect of how YouTube is complying with the takedown procedures, and that congress did not intend to nullify copyright. They will probably win that argument, because it's clearly true.
(*Viacom also argues that YouTube had actual knowledge of the infringement, that they are a publisher and not just a service provider because they transcode, thumbnail, and integrate the videos into their own pages rather than just make them available for download... Either of which would cause YouTube to lose the safe harbor.)
The DMCA has a safe harbor provision for "platform" and "network" providers that, basically says - as long as you don't exercise control over the content on your platform/network, you cannot be sued for infringement, the plaintiff must sue the one who uploads/transfers using your service.
... As soon as a network or platform provider begins to filter the traffic or content, the safe harbor doesn't apply and they're fair game.
However, YouTube has entered into agreements and instituted technology to pre-emptively purge it's "platform" of copyrighted material - Therefore, they are no longer protected by the safe harbor.
If so, couldn't they just say this:
"OK, we'll turn off the filtering starting immediately and discuss whether there are contract violations with our contract partners as a separate matter from this case. We ask the court to rule that the safe harbor is clearly in effect once the filtering has stopped and limit this case to the period when the filtering was occurring. If plaintiffs don't agree and do want us to continue filtering pending the resolution of this case, we ask them to request that the filtering remain in effect and either waive any claims that the filtering invalidates any safe harbor provision of the DMCA or waive any damages for the period from now until the resolution of the case should it be determined that the safe harbor provisions would immunize us and filtering invalidates them."
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Tiptoety is a fucking bastard who beats up little girls with downs syndrome and likes to smash babies skulls out with hammers. He should have his penis dipped in BOILING oil!
To boil down the parent post, is this fight for real?
Is this really some corporate-backed entity trying to chip away at some of the self-destructive provisions of the DMCA? Will it attempt to establish the "meaning" of media in this age? Or will it be an out of court backstab leaving nothing changed and more and more people classified as criminals?
-dave
6th Street Radio @ddombrowsky
First the lawsuits will start. I suspect those will fail. The next thing that happens after that is that someone will try to create a competing web site that completely misses the point and puts restrictions on users uploading content and tries to add DRM and advertising to any videos that do get uploaded. Then some gigantic media conglomerate will try to buy and bury Youtube. If all that doesn't work, they'll likely just give up and live with it. Not many companies make it past all that harassment though.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Well, we'll see how that argument spins as I think YouTube will play that as "We have gove above and beyond what's required by law at the insistance of copyright holders, yet they demand the impossible. While this process is imperfect, removing it because of increased liability would cause a massive surge in piracy which would hurt the plaintifs. Causing damage to themselves in order to recover it through the legal system is an abuse of the legal system and should not be permitted". I think Viacom would hit a brick wall very quickly if they tried as everyone would drop their filtering on the spot, with very little sympathy towards the copyright holders from anyone.
Live today, because you never know what tomorrow brings
...for us to establish serious penalties for invalid litigious activity. The fact that everyone is suing everyone, for money, sickens me, and is an extreme waste of our judicial resources. Add traffic violations that are not in line with the 'intent' (and thus the constitutional explanation for the law), and you've got a glaring systematic problem.
Fuck twitter, I have a GNU/Linux houshold (2 desktops, 2 laptops, server) and you STILL make me go limp.
I guess you're the anti-viagra. Congratulations.
Viacom alleges in their complaint that YouTube receives a financial benefit directly attributable to infringing activity (via add revenue generated from the infringing material)
Also, they allege that infringing activity is apparent, given YouTube's ability to filter out other things (pr0n and the copyrighted material of it's partners.)
Each of these allegations appears to be directed at voiding the safe harbor provision in the law.
Here are the relevant parts of the safe harbor provision (512(c)(1))
(1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -
(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
(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
http://xkcd.com/756//
I don't think Viacom stands a chance... they need to show "willful, intentional, and purposeful" infringement. The case rests on data as a percentage basis, how many views turned out to be infringing content? 60%? 30%? 10%? 2%? IMO, if the answer is 60%, Viacom should win. If it is 2%, they should lose.
70% of statistics are made up.
Viacom's complaint is insane. Hopefully it doesn't go to a jury. A jury is filled with stupid people who are not intelligent enough to tie their shoelaces. I really don't know why the US allows civil proceedings to be heard by a jury of peers at least a judge would have some level of intelligence. Reading viacom's submission I'd believe that only copyright material is available on YouTube and nothing else at all.
Perhaps not, but I know too many tech illiterate folks to trust them on a jury if it got too complex, like the "I never used the internet before" guy from the case you cited. On the other hand, I've seen *several* judges, even the one who realized his mistake in this case, who have made sensible rulings, even on default cases.
So I'd honestly go for a bench trial if they sued me, unless I had reason to believe that particular judge was unreasonable. But that's just my gut feeling. Many judges have made bad rulings in the past; it's just that I feel they're smarter, on average, than the jury members I'm likely to draw.
That said, I've always been eager to serve on a jury and never gotten the chance. I sure wouldn't mind serving on a case like this. Though I'm not sure if I could get past voire dire? People like me are pretty rare, so if they asked the right questions, they could easily knock me off the jury...
The Church of Scientology.
it's a good thing we know who you are, and not just some random yahoo insulting people behind the anonymity of the internet and pretending some company is out to get you because you've failed at life
I think that all three of these people - Odder, Twitter and westbake - are fantastic and their comments are insightful and informative. They should be modded up immediately!
My surety that they are the cleverest person in the world... sorry, the cleverest people in the world is only matched by my absolute certainty that none of them are me.
I'm Just Another Twitter Sockpuppet, and I approve this message.
An LLC is NOT the same a corporation! They got that part wrong and it can make a difference, legally!
You're right that the principle place of business can be different than where they're registered, but you're arguing against the wrong thing!
Two words: hulu
We get it. You don't have to reply to yourself seventeen times.
Copy it twice. And then give one copy to the original owner. They now have a complete set of spare parts!
Not only are they not harmed, but they are very much compensated!
If the Internet is only about piracy of property than the Viacom suit does threaten the Internet. But lets face it, Google is worried about Google and their business, not the Internet, you or me. The dominant position of Youtube, which was consciously built on piracy and help lawyers help engineer the business plan, is based on people posting material they don't own. Recent studies show that the most watched videos are music videos that are copyrighted and are posted without the owner's permission. Hence the Viacom suit.
The technology does not exist to allow Youtube to screen each posted video for violation of copyright for at least the music and to take down the clip and not allow it to be posted. Does Google/Youtube do this? No. Why? Because it isn't in their business interest. Google has a long history of putting its business interests above the law and using their money to fight protracted legal battles, hoping to intimidate others into giving up their rights.
I know we all want to mash and do clever things, but until the law changes, taking a whole song and posting it or even a major portion is just plain theft. We've gotten used to theft of music through Napster and P2P networks. And the music companies are such idiots and so greedy that they are easy to hate. But theft is theft. If you don't like the law, change it. If you choose instead to break it, be prepared to suffer the consequences.
Does that mean they are worse than The Terrorists?
Is eating babies as bad as abortion?
Let's say Youtube is a huge storage house where you put many boxes. The problem is, you don't know what the boxes contain until you actually open them. Labelling each box (i.e. for a screenshot) isn't any guarantee - remember the rick rolls disguised as "cool stuff"? The videos were carefully crafted as to show a non-rickroll screenshot.
Searching by tags and title is no guarantee, since some videos are blatantly fake (i.e. latest anime series X episode Y that actually have a previous episode - the comments in these ones are hilarious to read) or can contain fair use material. Perhaps they're parodies which redub the entire episode, so even developing a "video fingerprint" for these wouldn't be accurate.
So how is youtube going to implement a filter for copyrighted stuff? The answer is simple: They just can't.
So the only choice to determine whether a video is an illegal copy of a copyrighted work or not, is to watch it.
So - viacom complains that there are tons of copyrighted videos in youtube. Could you please explain how youtube, with its limited human infrastructure, keep in pace with all the copyrighted videos uploaded daily - no, every minute?
So yes, there is something youtube can do to improve the situation - disabling accounts which repeatedly upload illegal videos. But how to handle situations where a company doesn't like a video ABOUT them and post a DMCA complaint (i.e.e Scientology, creationists)? Will the uploader be banned just by using free speech? Clearly, each case needs to be handled separately, and that takes a lot of time.
In the end, it only comes to two choices: Check each video before it's made available on youtube (yeah right), or keep the current approach of taking down videos on every DMCA complaint.
So this is not about youtube "assisting piracy", it's about viacom not wanting to spend a penny in hiring people to search youtube and file DMCA complaints.
tin foil hat
The more and more I see these things, the more I think that sinister forces are at work to maneuver governments and industry to keep a strong lock down on the flow of information.
Democracies with hundreds of years of history of free speech and dissemination of information are under tremendous pressure to curb citizens right to share and transfer information. It is a totalitarian movement not stemming from Orwell's 1984 government, but the fascist working of corporation and government. The ironic twist is that the government is not leading the way, global corporations have found governments easy to bribe and control. Its those pesky consumers who shouldn't be sticking their noses into their business that they want to control.
They are starting with the premise: copyrighted works need to be controlled. What most people don't understand is that EVERY WRITTEN WORD is copyrighted. If you create a regime where copyright trumps rights and public will, you obliterate democracy and freedom which rely on a free flow of information.
It has long been known that if you control the flow of information you can control the people. That's what is happening, only this time it isn't soldiers in the streets, its $100 million law suits and lawyers. Its funny, threaten a man's life, and he'll fight. Threaten his future and he'll capitulate.
I'd like to see YouTube embrace Ogg Theora format and make it easier to download videos.
And I want free broadband Internet access and a pony. Oh, and I want a speedboat with a lifetime* supply of free gasoline.* - never make that wish to a genie because he'll give you a gallon of gas and a speedboat and then the boat will explode and kill you.
Actually, I'd say that we're already well into a situation where the "best quality" entertainment is no longer generally produced by the people with the fattest wallets!
Hollywood cranked out mostly unoriginal, dull movies for the last year or two. (Many of their "biggest hits" have been adaptations of comic books and cartoons. Not that I have anything against comics, but let's face reality here. That material was aimed primarily at KIDS, and isn't exactly "high-brow literature". If that's the BEST Hollywood can work with, it speaks volumes about their ability to wrap their heads around stories and turn them into engaging movies.)
Meanwhile, some of the most enjoyable and original material I've seen recently was independent film, a la "Thank You for Smoking".
The video-game industry is starting to outsell the movie industry, for that matter. People are getting more out of interactive gaming on a home TV or monitor than paying to view big-budget movie content.
The cheezy, "Ow, my balls!" quality of humor often found on YouTube is a predictable starting point, really. People are learning how to use their camcorders and publish content to the Internet for the first time. Much of their material is unscripted nonsense, meant to really only be viewed by their circle of friends - but available for mass consumption anyway.
But just like the huge price drop in digital recording gear allowed the "Indie music scene" to rise up from people's basements, cheap HD camcorders and video editing suites, plus sites like YouTube, will do the same for the amateur movie producers and directors out there.
I love how, meanwhile, MTV has seen fit to put their entire backcatalogue of music videos - music videos serviced to them from other copyright holders ie. record labels - on their own website without obtaining any further license or providing them any royalties or advertising share.
Proposed terms of use:
Both filings are up on Groklaw as text, as well as PDFs.
I have to disagree slightly here due to what I call "weasel phrasing". While you're absolutely correct that directors and such have a legal duty to do what is in the best interest of the shareholders, it doesn't necessarily follow that grabbing all the cash you can get is in the best interests, nor is making as much money as is humanly or inhumanely possible.
:D
In fact, I would say that being a good corporate citizen is in the best interests of the shareholders. Of course there is plenty of room for many opinions here, because the phrase "best interests" is open to as many interpretations as there are people. While some interpretation are clearly wrong and illegal, there is still a very wide range of perfectly valid opinions.
It is statements like yours that give companies the excuse to be as bad as they want, and I for one disagree with that stance.
I will now be prepared to see you blast all of my reasoning out of the water.
Ogg is a superior format to Real, WMV and MOV. I've often wondered myself why sites bend over backwards to provide multiple formats but don't supply ogg. It has better compression for the same bitrates.
I suspect the better compression is because OGG can use OSS compression which is superior to other commercial compression algorithms.