YouTube is a popular video hosting service all over the world that allows users to upload video files for sharing with other Internet users. However, with the legal action taken by Viacom Inc. against Google Inc. of turning a blind eye to illegal video clips on its YouTube site in a bid to attract viewers, legal nuances of the suit have almost entered popular discussions.
Viacom accused Google and YouTube in a US$1 billion suit filed three years ago (2007) of ‘massive intentional copyright infringement’ and moved into a crucial stage in March, 2010. Viacom is a media conglomerate and claims that Google’s YouTube video-sharing site allowed users to upload more than 100,000 video clips from Viacom-owned networks and movie studios, including BET, Comedy Central, MTV, Nickelodeon, and Paramount Pictures.
In the original complaint, Viacom contended that Google wrongfully profited from nearly 160,000 unauthorised clips of Viacom’s entertainment programming that were made available on YouTube. Google has always argued that YouTube, which the company acquired for US$1.65 billion in October 2006, is an Internet service provider (ISPs) and ISPs are protected from liability for copyright-infringing acts committed by users under the Digital Millennium Copyright Act’s (DMCA) safe harbour provisions which protects hosting websites from copyright liability as long as they take down the copyrighted content once the company is informed of its presence on its site. Specially, Google argued that Viacom executives realised that videos posted on YouTube served as very effective promotional tools, in particular for popular shows like ‘The Daily Show’ and ‘The Colbert Report’.
Viacom is arguing that Google is not absolved by the DMCA since YouTube intends to infringe on copyrighted material. The media company believes that Google should review certain content prior to posting rather than waiting for copyright holders to request that Google remove the illegal content. On the other hand, YouTube believes that content owners (e.g. Viacom) are better equipped than ISPs (YouTube) to police their copyrighted content online.
Google also cites ruling in the Veoh/Universal Music Group case, in which a court ruled in favour of the video-sharing site. Court completely rejects argument that Veoh should have pre-screened every video finding that’s practically infeasible (and in any event it’s not required by the DMCA). Veoh’s legacy, however, could be that it helped to establish that ISPs aren't liable for crimes committed by users. In addition, court documents were made public recently by the U.S. District Court and Google claims that Viacom employees and its marketing partners posted “a host of clips” from Viacom TV shows movies to YouTube, even while complaining publicly about their appearance on the video site. The documents also reveal that Viacom attempted, but failed to buy YouTube in 2006.
The opening briefs in the Viacom vs You Tube lawsuit are widely seen as a test of the DMCA which YouTube believes protects it from Viacom’s claims. The DMCA was enacted as law by President Clinton on October 28, 1998. According to Clinton, the bill was created to shield intellectual property in the online arena and to expand upon the WIPO (World Intellectual Property Organization) conference treaties from 1996. While some groups like the music industry and software suppliers welcomed the law, others felt that it intended to weaken legitimate research and education by making criminals of librarians, scientists, and other academicians.
However, Google may find itself liable to the infringement claims if Viacom proves that Google and YouTube didn’t do all that was possible to avoid users from uploading copyrighted videos without permission, particularly after being served with the DMCA notice. Specifically, if You Tube and Google have not implemented available technology that would facilitate them to do an enhanced job of filtering out infringing videos, Viacom could have a legitimate argument in saying they’re not trying hard enough.
Another interesting point is that this case may hinge upon whether or not YouTube is guilty of “inducing copyright infringement”. If it is, it may be held liable for secondary copyright infringement as per the MGM Studios, Inc. v. Grokster case (2005). What exactly defines inducement is unclear but it hinges in no small part upon how a service is promoted and what need it is designed to fill.
The lower courts in Grokster had ruled that the peer-to-peer services were immune from liability under the Supreme Court’s earlier decision in Sony Corp. of America v. Universal City Studios, Inc., (1984), because the services had “substantial noninfringing uses” - that is, they could be used for authorised exchanges of copyrighted works in addition to unauthorised infringement. However, in Grokster the Supreme Court held that notwithstanding other substantial noninfringing uses, the services were still liable for the infringement they facilitated because they had the actual intent, purpose, or objective of facilitating infringement with their product.
In the Sony case, the Supreme Court of the United States ruled that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but is fair use.
The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs cannot be liable for infringement. According to the majority opinion, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.
(The writer is based in the US)