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.
YouTube, which Viacom had sought to buy on several occasions, argues that the safe harbor provisions (Section 512(c)) protect its conduct. It argues that it runs an open platform, which would cease to exist if service providers, as opposed to content providers, had to determine whether the copyright holder had authorized the material posted on its site by non-YouTube employees. That’s because generally all videos — even your videos of your dancing baby — are copyrighted when produced and the question of authorization to be posted is uniquely in the content providers’ ken, not the service providers’.
But the unique and hilarious facts of this case, adduced in discovery, make one wonder why Viacom brought this suit. It turns out that some, if not all, of the so-called copyright infringement of Viacom’s material was posted on YouTube by Viacom — or deliberately left there to generate business for Viacom. As YouTube notes on its blog site:
For years Viacom continuously and secretly updated its content to YouTube even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked, It opened YouTube accounts using phony email addresses, It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
YouTube argues that Viacom couldn’t even keep track of what it had posted and on “countless occasions” demanded the removal of clips it later asked to be reinstated. Based on this pattern and practice, YouTube argues it had no way of knowing what copyrighted material was authorized to be on its site and what was not.
On its part, Viacom says YouTube deliberately violated copyright law, citing some early emails by company executives, emails the company argues were misconstrued. In fact, YouTube argues that the suit is a bad faith effort to harm the company Viacom had repeatedly and unsuccessfully tried to purchase for itself.
The communications industry has a lot riding on this case. So does everyone who relies on the internet for information. According to an AFP story:
The lawsuit highlights that copyright rules need to be updated for the Internet Age, according to Computer and Communications Industry Association president Ed Black.
“It is a huge threat to the openness of the Internet,” Black said of the lawsuit. “A bad verdict in this one for conduct that is not horrendous would have an unbelievably chilling effect on all players in the Internet world.”
The case essentially calls for YouTube and other websites to become “copyright police” for content owners.
Meanwhile, the law could be interpreted to provide copyright protection to every Twitter text, blog post, Flickr photo and email, according to Black.
Each day there are typically 50 million Twitter “tweets,” 900,000 new blog posts and three million pictures uploaded to Yahoo-owned photo-sharing website Flickr.
“You’d need a huge army of censors to sort through this stuff and that is really not feasible or reasonable,” Black told AFP.
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