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.