Viacom Dios
Most civil litigation in the United States is tedious, involving wading through documents and taking oral testimony in a process known as “discovery.” A procedure unique to the American legal system, discovery tries to minimize surprise in the belief it leads to unwarranted decisions. In television and movies this tedium is ignored and viewers might be deceived about the lengthy pre-trial work American litigators generally must do. (The exception is requests for injunctive relief, which bypasses this.) Rumpole of the Bailey, deprived of this pre-trial procedure, won his cases by clever footwork and quick thinking. American lawyers handling civil cases needn’t be quite so brilliant.
For three years the parties to the suit brought by Viacom against Google (the owner of YouTube) have labored largely out of the limelight. Now as the parties seek a ruling in their favor on summary judgment, a ruling by the court without a trial on facts and law already established in the pre-trial period, their pleadings are available and the litigation issues are available for us to read and study.
The case presents interesting questions and some rather embarrassing facts for both sides.
Copyright law in the age of the internet
The internet and other modern forms of communication present some unique challenges to traditional copyright law, which is designed to protect the creators of original work from unauthorized reproduction of their work.
In traditional methods of communication, the publisher of material controlled what was published. Internet service providers have far less control over what appears on their sites.
To meet this new method, in 1998 by unanimous Senate vote the Senate adopted DMCA (the Digital Millennium Copyright Act). Title II of the Act is known as the “safe harbor provision.” It protects providers against copyright liability if they follow certain procedures and guidelines, including blocking access to material allegedly interfering with copyright upon notification of a claim of infringement from the holder of that copyright. In only two circumstances has a website owner been found liable for linking to copyrighted material — where the website owner ignored an injunction or linked to devices, including software, designed to circumvent copyright protection.
Viacom vs. YouTube, Google, Inc.
Neither of those narrow exceptions is present in the suit brought in 2007 by Viacom against YouTube and its corporate parent Google. The suit claims $1 billion in damages for what it claims are 160,000 unauthorized clips of Viacom programming.
That amount seems grossly inflated. On March 11, 2008, the judge ruled punitive damages were unavailing and should Viacom prevail it could obtain only statutory damages. Statutory damages are set at between $750 to $30,000 per violation and can go up to $150,000 for “willful” violations.
If you actually read the YouTube emails, rather than just take the word of Google and its paid-for allies, you’ll realize that it’s quite clear that they knew that they were building a business on infringing, copyrighted content. Once you get through their spin, you find facts that are actually quite “evil.”
Copywrite Law can only protect what is written, produced but not performed. It also protects the actual medium on which content is distributed. The problem is that once it becomes altered by digitazation it no longer resembles the original content in any meaningful way. Copywrite Law has become so convoluted as to become almost meaningless. You cannot copywrite sound or vision so how does copywrite law even apply?
The more that Big Companies try to further their protection and take punitive action the more distant from original intent they stray. Technology is moving aster than the ability to legislate. Instead of going after U-Tube or other sites they should be grateful for all the free advertising. If they were smart they would simply make a provision that when some of their content is used it would automaticallt tie in some advertising from some of their sponsers.
Or, perhaps this is the inevitable consequence of laws failing to keep up with new technology. Our current copyright laws were written prior to the invention of VHS tapes. Talk to teenagers today and ask them what a VHS tape is, and you’ll probably get a blank stare, though some of them will recall using them to watch Disney movies back in preschool. An entire entertainment technology has come and gone, and our copyright laws haven’t changed one iota to reflect this. Why does this matter? Because in decades past, there was no possible way that unauthorized use of intellectual property could possibly benefit the owner of that intellectual property, but with the internet, it can turn into free advertising. Take the Powerpuff Girls Doujinshi, for example: six years ago an amateur artist began publishing a fan comic based on several cartoons on Cartoon Network and Nickelodeon, primarily cartoons written by Genndy Tartakovsky, featuring older versions of several of his characters. When Cartoon Network found out about this, their first instinct wasn’t to sue him, but to hire him for their MMORPG project, Fusion Fall (this plan to hire him fell through for some unknown reason, but no effort was ever made to suppress this fan comic).
This brings us back to the central issue in having standing to bring a lawsuit: harm. While producing unauthorized derivative works for profit clearly constitutes harm, as it denies the owner of the intellectual property his/her cut of the revenue, producing fan works for free generally has the effect of hyping the original work, all the while giving demonstrations for which studios and publishers can recruit new talent. Consequently, very few artists attempt to suppress fan works, and many actively encourage them. As it is, legal experts can’t even agree on the legality of fan works, though there have been cases finding that the producers of entertainment works can’t dictate to the consumers how those works are to be enjoyed, as long as they were paid for. Now, since copyright laws were written for the purpose of protecting artists so that they can profit from their own work, it is de facto legal to produce fan works if the copyright holder doesn’t object. Whether or not it is de jure legal is a question that no one has an interest in being the test case to answer. Thus, fan sites dare not defy a cease and desist letter, or even a polite request by an artist not to have fan works published based on his/her work.
Perhaps it’s time for Google/YouTube to play hardball. Delete and ban any videos in any way related to Viacomm, fan produced or otherwise. Don’t allow Viacomm to derive any free advertising benefit from YouTube. Something tells me Viacomm wouldn’t be very happy about it.