Dueling Summary Judgment Motions In Viacom v. YouTube

I Don't Believe in Imaginary Property writes "Eric Goldman, an Associate Professor of Law at Santa Clara University School of Law, has an excellent analysis of the dueling summary judgment motions in Viacom v. YouTube. Basically, both sides have been trotting out the most damning things they can find and asking the judge to rule against the other party. Viacom is mad that Chad Hurley, one of YouTube's co-founders, lost his email archive and couldn't remember some old emails. Worse, YouTube founder Karim once uploaded infringing content. But then Google points out that only a very small percentage of the users are engaged in infringing activity (some 0.016% of all YouTube accounts have been deleted for infringement), one of the clips Viacom is suing over is only one second long (what about fair use?), and most of YouTube's content is non-infringing, including the campaign videos which all major US presidential candidates posted to YouTube." (More below.) "But the worst thing they found is that Viacom can't make up their mind. They spent $1M advertising on YouTube and tried to buy it. And even though they demanded that YouTube remove videos containing Viacom property on sight, Viacom had a complex internal policy authorizing some clips, including ones disguised as 'leaks' and put out by their marketers. Viacom was so conflicted internally that their very expensive lawyers couldn't figure out what Viacom had authorized to be uploaded even after doing extensive research as required by court rules, only to discover that some of the clips Viacom was suing over were ones Viacom uploaded themselves. The lawyers then had to go to court and drop those clips from their case — twice. They missed some the first time."

Comments

Re:Where is godzilla when we need him?

[thephydes]

Godzilla is just like the rest of us - he doesn't know wtf is going on but suspects viacom is a pack of arseholes and google is in fact doing evil.

Its not about the content.

[miffo.swe]

This is about being the gatekeeper to media content. It has nothing at all to do with piracy per see. Youtube is the place to be if you want content to spread, like traliers, new bands etc.

If Youtube becomes the place to be for content Viacom and the rest of the leeches gets taken out of the equation as distributors. Its the same fight the RIAA is making. Its not about piracy, its about deciding what you watch, listens to and buys.

Re:Its not about the content.

[thijsh]

You do know that RIAA doesn't just blindly attack sharing of any music, but only music by artists who have (or their labels have) authorized them to do so.

This is not true, the fines imposed on blank media for example are all going to big labels. I think the chance of my blank CD-R being used to burn some legally bought indie music is much larger than ever being used to illegally copy the latest Lady Gaga CD, but nevertheless the money goes to this mafia. I would call this 'fined for being guilty of infringement whatever the circumstance' a blind attack on one method of sharing music, and it also negates the second part of your claim since indie artists have never authorized the big labels to collect (and keep) this fine for them.

Re:Its not about the content.

[miffo.swe]

If you for one second think what you hear on the radio is decided by the radio station itself you sir are very gullable. Its very hard getting aired unless you have a big contract not matter how good your music is. On the rare occasions it happens RIAA is defacating themselves because you cant write slave contracts with an already successful artist.

Re:Its not about the content.

[eldavojohn]

When has RIAA decided for you what you should watch? Sure, if you like bands under the labels that work with RIAA, those labels might go towards more popular music.

Both you and I know that the bands "working with RIAA" are promoted and slammed down our throats. In addition the radio stations that you can listen to are (with the very rare exception of a few I know in Minnesota) pretty much forced to play RIAA only songs. I live in DC and aside from bands like The Bravery that are already on a large label, I have never heard an unsigned local band showcased or even played on the radio. If you were to build a case for the RIAA deciding what you hear, there it is. They are the deciders on who gets played on TV and the Radio. And miffo.swe was pointing out that this fact is why the internet is a thorn in their side.

It doesn't mean they're deciding what you can listen - you're free to go to any local pub, event or even look for indie music on the internet.

You can't use that last point about the internet because that's what is being debated here. That's what we're talking about annoys the hell out of the RIAA. It annoys them because I'll never hear acts like Joanna Newsom at "any local pub or event." I depend on the internet for it because no radio station in my area has the balls to play it even at 2am.

There are a lot websites for non-signed artists to release their music and RIAA has no saying over that since the artists haven't given them permission to do so. You do know that RIAA doesn't just blindly attack sharing of any music, but only music by artists who have (or their labels have) authorized them to do so.

This particular discussion isn't about file sharing, it's about promotion and distribution channels and consumer awareness. The accusations are that the RIAA enjoy limiting consumer awareness. They don't want to lose 20% of their purchases to acts like Joanna Newsom or hundreds of other bands that you might actually like but you'll never know because there's this great system set up to protect you from <evil voice>Something Different!</evil voice> Do you have any idea how difficult it was for me to hear about Matthew Hemerlein despite the fact that I live in DC? Thank god for the internet and the new distribution channels it provides. I agree with miffo.swe that the RIAA is a bit annoyed that I'm going to be sending money directly to labels like Drag City and Afternoon Records instead of the "Big Four."

Re:Its not about the content.

[zappepcs]

Can I interject here? the phrase ' ... but there "are" indie/alternative stations in...' is one of the most offensive ideas that I've actually listened to in a while. It at once sounds like you are both excusing the desperately bad situation by offering alternatives and trying to ignore the wrongfulness that is the current music industry.

It might be better said as 'even though the RIAA and music industry in general are evil bastards who want to control every aspect of the artists' content without properly compensating the artists, some people have rebelled and work through indie/alternative radio stations. The best way to tell the RIAA how you feel is to go see local artists in concert, pay for any self pressed CD's they have.

Re:Its not about the content.

[Coren22]

Simple solution, don't buy music CDRs? Does your country impose a tax on all blank media? The US doesn't, they have "special" music CDR media, which is no different then regular CDR media, it just costs more.

Re:Its not about the content.

[Coren22]

I think the part you are missing is that Viacom is perfectly willing to use Youtube, but freaks out when they see clips they uploaded on it.

Re:Its not about the content.

[magus_melchior]

It's also about controlling the entire chain of production, from studio to screen. That's why Viacom tried to buy Youtube, and why they have this convoluted scheme of suing infringing uploads while uploading illicitly themselves, apparently designed solely to undermine Youtube legally. You control the entire chain, you get to dictate the terms to every link. It's that simple.

Youtube is the final link between the studio and the viewer, and Viacom wanted to be the first to control it. But Google made a better offer, and Viacom is now in "if I can't have it, NO ONE CAN!!" tantrum mode.

Re:Its not about the content.

[shutdown -p now]

Even if they didn't foolishly sue over the clips they themselves uploaded, it still wouldn't matter.

DMCA takedown provisions were written for this exact case. See an infringing work? Write a take-down letter! Google complies with DMCA to the letter, and they will take that content down. As such, they're not liable.

When juggernauts try their hands at new ideas

[Opportunist]

Viacom learned that this "viral marketing" thing is kinda good PR, and cheap too! 'cause people don't like marketing and ads when they see them, especially when it comes to music and anything targeted at teenagers, who by default despise everything their parents (or any person over 30) think is a good idea. So they thought it would be spiffy to put up some of those videos in some sort of "clandestine" operation, probably with some astroturfing going along, and hey, I'm pretty sure it even worked!

"But those damn kids should buy our crap, not listen to it for free!", decried some other department, probably the beancounters this time, who, by their very nature, don't really talk that much with the loonies from PR. So put up takedown notices.

Watch a company battle itself. It's actually pretty entertaining.

Re:When juggernauts try their hands at new ideas

[Dunbal]

Watch a company battle itself. It's actually pretty entertaining.

    No. Not when I'm paying for it because they're doing it through the court system - a system that tells me I have to wait 2 years for my case because of the backlog of cases. A system whose original intention was to prevent the little guy from being screwed by the strong but has turned out to be too expensive for the average citizen. It's not funny at all.

infringing content

[MancunianMaskMan]

hey, your kitten walking on the piano keyboard was playing a song owned by SonyWarnerEMI. We'll sue the whiskers off him!

Re:infringing content

[FictionPimp]

And yet I've had my own clips taken down because the radio was on in the background and some content provider complained to youtube.

So I can post a unmodified 1 minute video on youtube simply because the radio was on and some filter decided that was too much infringement.

Re:infringing content

[shutdown -p now]

Youtube/Google has brought in hundreds of millions of dollars for itself in advertising revenue due largely to the draw of infringing content. Sure, they take it down eventually once somebody goes through the DCMA hoops, but just as quickly the process starts again as another uploader sends the same content.

DMCA was put in place for a reason. And, as far as I recall, it was vigorously supported, and the need for it defended, by those very same companies that now whine about how Google "makes money off stolen content" while abiding to DMCA to the letter.

No sympathy whatsoever from here, sorry (and I am generally pro-copyright, unlike many on Slashdot). What they are essentially asking for is to place burden of determining legitimacy of posted copyrighted material on service providers, which is unfeasible and unreasonable for obvious reasons.

Make no mistake - Google is no different from your ISP here, and if they succeed in suing Google, your ISP will be next on the line, for letting you upload those nasty pirated bytes to YouTube over their pipes.

Test your /. age by reading the summary...

[kramerd]

After reading the summary (seriously, do this first or this won't work at all), gauge your reaction to the article that you won't be reading to determine how long and for what purposes you read /.

If you are surprised by any of the summary, you must be new here.

If you aren't angered by the summary, you have been here too long.

If you mentally insert else statements between each of these lines, you are sleep deprived DBA. Go take a nap.

If you question Eric Goldman's credentials, but haven't done any research to to discredit him, you are a /. troll.

If you just went to research Eric Goldman's credentials so that you could respond with research to discredit him, you are a /. pedent.

If you just tried to correct the misspelling of pedant in the previous line, you are a grammar nazi.

If you instead thought that discrediting Eric Goldman wouldn't take much effort but that doing so isn't pedantic, you have a valid point, and thus, would be modded down for pointing it out.

If you just thought to yourself 'who is Eric Goldman?,' try reading the summary next time.

If you can remember another /. article that pointed out that a company ended up suing themselves (and losing), so do I.

If you read the heading of this post and thought ' this is stupid, you can gauge someone's /. age by the number of digits in the UID, its probably a valid point, but makes this entire post worthless, so keep that to yourself.

Re:Test your /. age by reading the summary...

[Jedi Alec]

If you aren't angered by the summary, you have been here too long.

Either that, or you've simply worked in a larger company for a while and realized that schizophrenia is pretty much the ground state of being.

Hypocrites

[zero.kalvin]

They (Viacom) look like a bunch of hypocrites, they want their cake and eat it as well. I am not saying Youtube is innocent. But I hope viacom get slapped, and get slapped hard.

I can has lawsuit?

[Anonymous Coward]

Your trolling, no way would they sue a kitten. That would be like sueing a grandmother, or a disabled person... oh wait.

Re:I can has lawsuit?

[tepples]

You distribute copyrighted works without consent of the rights holder, you're committing an offense under the law.

I understand this. But if I write a song, how do I make sure that its melody isn't already copyrighted by someone?

Apropos Goldman's credentials

[Rogerborg]

Any "law professor" who says "attorney generals" instead of "attorneys general" might want to consider going taking a course in Law 101 rather than teaching it.

Re:Where is godzilla when we need him?

[mcgrew]

But don't forget, Google's motto is "don't be evil", not "don't do evil." If doing evil is the same as being evil, then we're all evil. It's just that some people are more evil than others, and some corporations are more evil than others, too. "Try not to do evil" isn't a very good slogan, and compared to most corporations, Google doesn't do much evil at all.

Plus, I fail to see how they're doing evil here.

Possessive is a clitic

[tepples]

While we're on the topic; what would be the possessive form of attorney general? Would you write "the attorney general's office" or "the attorney's general office"?

The possessive marker in English acts as an enclitic, or suffix on the phrase. More than one "king of Spain" are "kings of Spain", but King Juan Carlos wears "the king of Spain's hat".

always amusing

[TheCarp]

I always find these legal battles so amusing. Not to bad mouth youtube/google but, the percentage of accounts that have uploaded "infringing content" is such a laughable statistic. I wonder what percentage of accounts have uploaded anything? More than 1 vidoe? More than 2?

My guess is, most accounts would fall into one of a couple of catagories:
1. People who made an account to post a comment, and never used it again
2. People who made an account to upload some stupid video from their phone, and never used it again after one or two such videos.
3. People who wanted to see a video that was only accessible to people who made an account because it had some "mature content"
4. People who would fall into catagory 1-3, but found they liked commenting or having personal playlists
5. Old accounts tied to old email addresses of people who currently are in 1-4.\

If those categories don't account for 70% or more of all accounts, I would be shocked.

-Steve