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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.'"
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.
Not only bring back xenutv1, but explain to us how the Church of Scientology can open another account after having their first one removed due to harassment and cyber-bullying?
It is of course Google and YT's prerogative to operate their site as they see fit and even violate their own ToS as they have very clearly done here.
But by keeping xenutv1 shut down while allowing a Scientology to open a sponsored account calls into serious doubt how much we can trust YouTube to remain an impartial advocate of free speech in the user-created content industry.
Do No Evil my foot.
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
Basically like this: CoS are paying YT a nice lump of cash to advertise on their site. So YT in return for this cash reinstate the CoS account. Money talks, no business has morals when it comes to cash.
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?
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//
It is a sad state that most businesses have obligations to shareholders, but to suggest that all businesses only care about cash must, by extension, mean that this is true of all people.
I'll grant you "most", but the way you (and others like you) are wording this makes it an excuse. It's not, especially for a company which claims "Don't Be Evil." Shame on Google, shame on YouTube, and shame on you for giving them an excuse.
Don't thank God, thank a doctor!
Google also indexes the entire fucking Internet, so the filtering is bound to slip up somewhere. Things will slip through the cracks, as opposed to not going through at all. That's also good.
Doing business with the PRC does support the PRC, which is bad. And they are actively censoring, which is evil. That's why it's debatable both ways.
Caving to Scientologists is pretty much unarguably bad, with pretty much zero positive side effects.
Don't thank God, thank a doctor!
IF censorship was all that China did, I wouldn't care so much... censorship doesn't work. It's the official brutality, murder and the treating people as beasts of burden that bothers me.
Scientology is a complete fraud... no argument there.
They are associating with the PRC, so maybe guilt by association, but it's not as though the PRC would stop just because Google refused to censor. They'd just block Google, and everyone there would use Baidu instead.
Don't thank God, thank a doctor!
(a) an individual can choose, in any given moment, between self interest and trying to help someone else, but
(b) a corporate board of directors and corporate officers are pretty much required to choose the corporation's self interest. So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life.
Ray Beckerman +5 Insightful
Many people confuse "can't" with "won't", even in the personal case. I absolutely can walk down the street naked. I won't, because it's embarrassing, illegal, and unhealthy in this weather. (b) a corporate board of directors and corporate officers are pretty much required to choose the corporation's self interest. I'm not entirely sure, but I'm guessing that this follows the same rules. A corporate board of directors, and corporate officers, very well can choose an action that is not in the corporation's interest -- or not the absolute best, profit-maximizing move they could make.
They might well lose their job and their reputation, and have to start over in the mail room somewhere else, but they have that choice. In fact, they might gain a reputation for being an ethical person, which isn't bad.
So it is, again, that they won't -- that they care about their job more than their ethics. And if they care about their job that much, it probably has something to do with the money.
Don't thank God, thank a doctor!
I'm sorry I wasn't more clear. When I said that directors and officers are "pretty much required" to choose the corporation's self-interest, I meant legally required. I.e., they are legally considered fiduciaries to the shareholders. Their legal duty is to do what is in the best interests of the shareholders.
Ray Beckerman +5 Insightful