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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.
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.
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.)
Ray Beckerman +5 Insightful
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
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.
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.
"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."
The founders had enough experience with corrupt judges to not blindly trust them....
"The human race's favorite method for being in control of the facts is to ignore them." -Celia Green
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.
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.