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Google today revealed that it has evidence that Viacom purposefully uploaded many of the copyrighted clips it is suing YouTube over, such as clips from Comedy Central shows like South Park. If the stunning allegation holds true, it could spell doom for Viacom's $1B USD suit against the site.  (Source: YouTube)
Claims could have a big impact on $1B USD suit against YouTube

Google dropped a bombshell today. It claims that Viacom, who is currently suing its video sharing site YouTube, knowingly and purposefully promoted the uploading of Viacom's copyrighted works to the site, trying to make them look like pirated copies.

Viacom's suit against YouTube has been smoldering in the U.S. District Court for the Southern District of New York since March 2007.  After Viacom failed in multiple bids to acquire the video sharing site, it filed suit seeking $1B USD in damages from YouTube's current owner, internet mogul Google.  Viacom accuses YouTube of allowing 160,000 infringed video clips to be posted.

As the opening briefs of the case were just unsealed and released to the public today, Google has posted a blog blasting Viacom and saying that the lawsuit threatens the future of the internet.

Writes Google:

With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them. This means all videos on YouTube are copyrighted -- from Charlie Bit My Finger, to the video of your cat playing the piano and the video you took at your cousin’s wedding. The issue in this lawsuit is not whether a video is copyrighted, but whether it's authorized to be on the site. The DMCA (and common sense) recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service.

Google is referring to the fact that current copyright interpretation is that you in effect have a copyright as soon as you create content.

Google also reveals that it is confident it has evidence to prove that Viacom was secretly uploading videos to YouTube to promote programming on its TV networks like Comedy Central and BET.  Writes Google:

For years, Viacom continuously and secretly uploaded 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.

If Google can indeed prove this, it could be Google's own "smoking gun".  Viacom's so-called "smoking gun" piece of evidence in the case came in October of last year when it unearthed YouTube emails in which the site co-founder Chad Hurley chastises co-founder Jawed Karim for uploading copyrighted video.  He writes:

jawed (Karim), please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.

That email was extremely significant as the Digital Millennium Copyright Act only extends "Safe Harbor" provisions to internet content sites if they don't know infringement is occurring on their site and remove infringed works when they are brought to their intention.  The Digital Millennium Copyright Act (DMCA) 17 U.S.C. §512(c)(1)(A) states that a service provider cannot be held liable for infringing material uploaded to their site as long as:

  1. The services do not have actual knowledge that the material, or an activity using the material on the system or network, is infringing;

  2. In the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

  3. Upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

The YouTube emails certainly damaged Google's case.  However, if it can prove its big claims about Viacom, it could well have a victory on its hands.  The site does seem to have current precedent in its favor -- in September 2009, much smaller video site Veoh won in a court case brought by Universal Music Group.  Veoh's victory came thanks to applying the "Safe Harbor" defense.

The case is critical as the amount Viacom is seeking is almost as much as the purchase price of the site itself.  Google paid $1.65B USD to acquire YouTube in October 2006, about a year and a half after the first video was uploaded to the site on April 23, 2005.  The site still struggles with profitability -- its daily bandwidth expenses alone are over $1M USD, and it's trying to transition to high-definition offerings.  



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Kudos
By porkpie on 3/19/2010 1:04:05 PM , Rating: 5
A lengthy piece on a very contentious topic...and Jason managed to refrain from interjecting his opinion into it anywhere. Very well written; a great leap forward. I salute you.

On a side note, I wonder how much evidence Google has, if any, to support these allegations. Claiming they hired a third party to upload snippets from random locations is certainly a bombshell...but a rather difficult one to obtain hard evidence for, I would assume.




RE: Kudos
By MozeeToby on 3/19/2010 1:32:32 PM , Rating: 5
I have heard in other places that Viacom submitted DMCA take down notices for several videos, only for a marketing firm to come back with written permission from Viacom a week later. The department in charge of finding violations and issuing take down notices wasn't in the loop on the viral marketing plans.

As for the comment at the end of the article about YouTube's bandwidth costs, it's likely that most of YouTube's bandwidth is taken care of through peering agreements with tier 1 ISPs. Google owns a lot of fiber, enough that it can probably get by with trading for bandwidth rather than paying for it. Of course, they still have to pay to lay the fiber and for maintenance etc; but it will be significantly less than if they purchased the bandwidth direct from the ISPs.


RE: Kudos
By porkpie on 3/19/2010 5:35:20 PM , Rating: 3
"The department in charge of finding violations and issuing take down notices wasn't in the loop on the viral marketing plans."

Good point, and it does make me wonder if that's what Google is referring to here-- that perhaps there was no intentional intent to deceive, but rather the usual bureaucratic blundering.

However, Google's second point seems to undermine this first one:
quote:
The issue in this lawsuit is not whether a video is copyrighted, but whether it's authorized to be on the site.
By that logic, the fact that Viacom may have uploaded (and thereby authorized) certain copyrighted works to Youtube has no bearing on whether or not other copyrighted works were in fact authorized.


RE: Kudos
By flymolo42 on 3/19/2010 6:51:19 PM , Rating: 2
quote:
By that logic, the fact that Viacom may have uploaded (and thereby authorized) certain copyrighted works to Youtube has no bearing on whether or not other copyrighted works were in fact authorized.


But it does help Google make the argument, that only the rights holder know if a particular copy is infringing. They can even use this evidence to make light of the emails of the founders, saying that they couldn't be positive anything was unauthorized (stolen). YouTube relies on the idea that you could watch all the videos on the site, and still not know which ones to take down without copyright holder involvement. Whether this is reasonable is up to the courts to decide.


RE: Kudos
By jbwhite99 on 3/19/2010 1:38:41 PM , Rating: 5
actually, it is easy. The Viacom executives made a huge mistake - they traded the secret emails on GMail accounts. Remember, Google knows all!

(I'm kidding, but this is great detective work if they were really able to trace people with fake email accounts going to Kinko's to upload stolen bootlegged videos). But then, for a billion dollars, what do you exect?


RE: Kudos
By xsilver on 3/20/2010 2:55:14 AM , Rating: 3
dang so you mean PirateViacomChiefExec@gmail.com is compromised? ;)


RE: Kudos
By zinfamous on 3/19/2010 1:57:28 PM , Rating: 1
It's a blog--this is not the AP.

Yes, Jason wears his opinions on his sleeve in many of his articles, but who cares? many of today's "youts" :D confuse "blog" with "news" too often, and in both directions.

complaining about opinion being injected into blogs is a rather erroneous charge, I think, when you often here many of the same voices complaining about news sights like the Times charging for service--"Hey, I get all my news for free on the internet!"

No, you don't get your news for free. You get bloggers reporting the news. The source of their news is the AP, and other long-time news organizations like the Times. The bloggers scour the news sources, repeat this news to you, often interjecting their own flavor.

Those that don't seem to care that the foundation of news reporting is quickly crumbling are going to start complaining even more when those sources dry up, leaving us with bloggers and those with very little journalistic training (source gathering, long-established networks, real editing and vetting, etc...) to report? the news.

It will be funny and sad. Sad, b/c most seem to be shrugging their shoulders, happy to see the news die in the face of "new media," all the while ignorant that "new media" exists only on the shoulders of the "Old media."

Sure...this isn't across the board, fundamentally true, as some of these stalwart institutions have made strong headway into online content, but the more we depend on sites like Daily kos? Drudge, Huffington, etc to provide our "news," the less we understand the world.


RE: Kudos
By Murloc on 3/19/2010 6:29:53 PM , Rating: 3
you are stupid.

Click the Blogs button, what do you see? blogs! and this article isn't there!
it's unter the internet news section.


RE: Kudos
By tedrodai on 3/22/2010 10:37:58 AM , Rating: 2
You've got a point, and I sure as heck didn't read all the way through the post above yours, because it started to read as an idiotic rant by someone who didn't get their facts straight.

BUT...

Let me take this opportunity to chastise Dailytech about the format of the links to the authors' blogs right under the freaking article title. BAD DT! BAD!

How many people make that same mistake every week? A bunch, that's how many. Even those who read this site consistently are only going to pick up on the fact if they 1) happen to click the "Blogs" link and stumble upon it or 2) read one of the message threads about "the despicable quality of DT's articles...no, blogs you idiot!...no, articles you fool!"

Though I think DT could care less whether people think of articles as blogs or vice versa, so we're all wasting energy discussing it.


RE: Kudos
By trajan on 3/19/2010 2:02:33 PM , Rating: 2
Agreed on all points, great article, well written, interesting -- this is the type of metareporting that gives metareporting a good name.


RE: Kudos
By Parhel on 3/19/2010 2:17:33 PM , Rating: 3
What the heck is meta-reporting? Would that be like writing an article to report that someone else was writing an article?


RE: Kudos
By chagrinnin on 3/19/2010 5:13:53 PM , Rating: 5
Sskkkrsshh,...."We have a turd in the punchbowl." :P


RE: Kudos
By FaceMaster on 3/20/2010 8:24:53 AM , Rating: 3
quote:
A lengthy piece on a very contentious topic...and Jason managed to refrain from interjecting his opinion into it anywhere. Very well written; a great leap forward. I salute you.


Nice way of slipping some negative connotations about his articles into what, at first glance, looks like praise.


RE: Kudos
By therealnickdanger on 3/20/2010 12:39:00 PM , Rating: 2
I think that is what is commonly referred to as a "Compliment Sandwich".


RE: Kudos
By foolsgambit11 on 3/21/2010 11:01:06 PM , Rating: 2
It's a backhanded compliment. A compliment sandwich would have been compliment-issue with the article-compliment.


RE: Kudos
By Kyanzes on 3/20/2010 3:59:23 PM , Rating: 2
"On a side note, I wonder how much evidence Google has, if any, to support these allegations."

Come on! Everyone knows about it. Just... *search* for it. :)


RE: Kudos
By PitViper007 on 3/22/2010 2:20:06 PM , Rating: 2
Don't ya mean "Google it"? Oops. Hope Google doesn't find out I said that.


Google's view
By nafhan on 3/19/2010 1:19:36 PM , Rating: 2
Based on documents submitted, it seems like individuals high up at YouTube (and Google) were VERY aware of the fact that they had a lot of potentially infringing material on YouTube, and were aware that was driving a lot of their business. However, it also seems that they are taking the stance that "knowledge" of the infringement requires written notice from the copyright holder, and not just awareness of possible infringement. In other words, the Google/YouTube people were going against the spirit of the law if not the letter.
Especially with this revelation about Viacom actually being behind the uploading of some of the videos, I don't think this is going to come out completely in Viacom's favor. However, I'm worried that this could lead to a sctricter interpertation of safe harbor rules in favor of rightsholders, which would be bad for the consumer in the long run as much of the content available online is based upon current interpertations of those laws.




RE: Google's view
By geddarkstorm on 3/19/2010 2:06:34 PM , Rating: 2
There's a fundamental schism in how these rules are viewed. Google's first quote in the article shows one interpretation, and yours shows the other (the one Viacom was following). It all boils down to "who should police the proper use of copyrighted works on a service provider?"


RE: Google's view
By Reclaimer77 on 3/19/2010 4:12:41 PM , Rating: 5
quote:
It all boils down to "who should police the proper use of copyrighted works on a service provider?"


Nobody.


RE: Google's view
By MadMan007 on 3/19/10, Rating: 0
RE: Google's view
By Reclaimer77 on 3/19/2010 7:16:42 PM , Rating: 5
quote:
Indeed. People should police themselvesw and refrain from illegal activity.


Yes people like Viacom and the RIAA who break laws to try and prove that others broke the same law on a daily basis. It's hypocritical, entrapment, and illegal. Not to mention damn unethical.


RE: Google's view
By porkpie on 3/20/2010 12:36:06 AM , Rating: 1
What law do you believe Viacom broke? Even if we take Google's version of events at face value, Viacom can't infringe on their own works. There's a vast difference between unethical and illegal.


RE: Google's view
By Reclaimer77 on 3/20/2010 1:47:24 AM , Rating: 5
You're joking right ? I'm no legal expert, but I'm pretty sure the courts would frown on you knowingly uploading IP, then suing for it being uploaded. You have GOT to be kidding me if you think this is how they can play it and win.

quote:
Viacom can't infringe on their own works.


A legal technicality that no jury would respect. It's the same as saying a museum director can hide a priceless painting and claim it was stolen.

So you are in favor of slapping billion dollar lawsuits on Google, and just to make sure you win, uploading content yourself so you can prove that same content is being infringed upon ? I just want to be clear where you stand here.


RE: Google's view
By porkpie on 3/20/2010 11:15:59 AM , Rating: 2
"I'm no legal expert, but I'm pretty sure the courts would frown on you knowingly uploading IP..."

It would certainly prejudice their civil suit. That in no way, shape, or form, implies a criminal act, however. It doesn't take much of a "legal expert" to know the difference.

"So you are in favor of slapping billion dollar lawsuits on Google"

Your inability to comprehend plain English is rapidly becoming tiresome. Where did I say I was in favor of this suit?


RE: Google's view
By Reclaimer77 on 3/20/2010 12:11:39 PM , Rating: 2
quote:
Your inability to comprehend plain English is rapidly becoming tiresome. Where did I say I was in favor of this suit?


Your inability to clearly define your position is equally tiresome. If you have a side, take it. If you are just playing devils advocate with me, go jerk around someone else please. I'm not here to explore every option of every topic with you.


RE: Google's view
By porkpie on 3/20/2010 1:59:18 PM , Rating: 2
In the phrase "there's a vast difference between unethical and illegal", which word was too complex for you?

For anyone able to comprehend words of more than a single syllable, my post clearly indicates that these alleged acts of Viacom's acts are unethical, but not illegal.

In a fit of school-girlish histrionics, you somehow managed to interpret that as supporting the suit. And when corrected, you lash out peevishly at others for your own mistake.

A poor show, sir, a very poor show.


RE: Google's view
By whiskerwill on 3/20/2010 4:16:12 PM , Rating: 2
Gotta love seeing Reclaimer getting beat up on, especially when he deserves it so.


RE: Google's view
By Reclaimer77 on 3/21/2010 11:59:26 AM , Rating: 2
quote:
Gotta love seeing Reclaimer getting beat up on, especially when he deserves it so.


Hardly. This is another example of some anal retentive poster passing up the major point to quibble on a technicality or something that would have been edited already had we the ability. Instead of discussing the bigger picture, Porkie has ignored the real crux of the issue to focus on some obscure difference between legality and morality.

Ok, so because I put one sentence together poorly, my whole argument is thrown out ? Porkie seems to think so.


RE: Google's view
By porkpie on 3/21/2010 3:20:54 PM , Rating: 1
So claiming Viacom broke the law was just a slip of the finger...even though you defended it across three separate posts? Honestly, even a liberal has more intellectual honesty than this. I really expected more from you in the way of backbone.

The difference between an act that is immoral and one that is illegal is not "a technicality". Lying to your mum is immoral. Knifing someone to death on a street corner is illegal.

Simply put, your first bombastic bedwetting post had a hole poked in it, and rather than maturely admitting you overstated your case, you threw a pubescent tantrum.

As for your "whole argument", that seems to be no more than "Since I hate any member of the MPAA, I'll believe any accusation against them, with or without proof".


RE: Google's view
By sxr7171 on 3/22/2010 11:30:37 PM , Rating: 1
These big corporations are not your friend, the sooner you understand that the smarter you will be. If there wasn't piracy of music your ass would be paying $25 a CD by now. Either that or you just listen to the shit on the radio all day which is a running 24 advertisement. Sometimes where government fails to regulate monopolistic corporations thankfully technology allows us our own check on the injustices these corporations would surely inflict upon you.

If this is difficult for you to understand, just go watch District 9. They've made it easy to understand.


RE: Google's view
By Lerianis on 3/20/2010 8:08:43 AM , Rating: 2
Seeing as how most of the 'pirates' have paid for this stuff in other forms, your argument is moot. Not to mention that these things are available (albeit in degraded quality) for free in numerous ways that the studios have 'condoned'.

It's about time to realize that some things are illegal, but shouldn't be.... this is one case of that. If something is available in ANY fashion, condoned by the person selling the thing or who owns the copyright, for free.... then it's time to tell them "Sorry, you cannot sue anyone!"


RE: Google's view
By porkpie on 3/20/2010 10:26:12 AM , Rating: 1
quote:
Seeing as how most of the 'pirates' have paid for this stuff in other forms...
The human capacity to delude oneself is truly infinite.


RE: Google's view
By MadMan007 on 3/20/2010 4:05:36 PM , Rating: 2
+1 entitlement complex.


I can't believe that...
By Motoman on 3/19/2010 1:21:49 PM , Rating: 4
...YouTube/Google would make this accusation unless they really had the evidence to back it up.

...and on the other hand, I can't believe that a company like Viacom would think they could ever possibly get away with this.

Not only will this invalidate Viacom's suit, but Google can turn around and sue the pants off of Viacom for, I'm guessing (IANAL), defamation, blackmail/extortion, etc. Google might wind up owning Viacom after this.

...just goes to show how moronically stupid Big Content is about the intarweb. Still.




RE: I can't believe that...
By Solandri on 3/19/2010 1:40:38 PM , Rating: 2
quote:
...and on the other hand, I can't believe that a company like Viacom would think they could ever possibly get away with this.

I can see them making that mistake. They've been using essentially the same tactic to track down torrent downloaders. They put up a video on the bittorrent sites and seed it, find out which IP addresses connect to the tracker and download from the seeds, then contact the ISP to get the names and addresses associated with those IPs so they can file a lawsuit for illegally sharing content (since bittorrent downloaders are also uploaders).

The problem for them here is that whereas a bittorrent downloader has no defense, a video sharing service like YouTube can qualify under the DMCA's safe harbor provision. If it can be shown that a copyright holder is not just ignoring the service's attempts to qualify for the DMCA's safe harbor provisions (pulling down videos reported as being copyright violations), but is actively trying to create a false impression that the service is not doing enough, it blows a huge hole in their case. It's like someone filing a lawsuit that the power plant nearby for ruining the air quality in the neighborhood, then is found to be burning trash in his backyard to make the air quality seem worse.


It just doesn't make sense!
By Shig on 3/19/2010 1:01:54 PM , Rating: 4
Classic




I'm not a fan of Viacom right now
By th3pwn3r on 3/19/2010 3:36:33 PM , Rating: 2
Wow. I really hope that Youtube/Google come out on top of this because suing for billions in "damages" is a bit ridiculous in my opinion. Suing for "potential funds" versus owed or guaranteed funds seems to be a gray area though. Obviously Viacom wouldn't earn the billion they're suit is for but it doesn't hurt to try your luck in the quacky(made up word of course) court system.




Chewbacca all over again!
By Belard on 3/19/2010 6:02:35 PM , Rating: 2
Its the Chewbacca clause all over again.

It just doesn't make sense !! :)

The lawsuit should be thrown out... because Viacom hired people to upload videos in order to get free advertising and then to get $1billion for doing it.

Comedy Central CEO is cool (of course) by wanting to use Youtube.




By GeorgeOu on 3/21/2010 12:21:32 AM , Rating: 2
First of all, Google was aware of all the accounts (Viacom told them) and the Viacom clips were all from official Viacom accounts. But even if they didn't disclose they were from Viacom, what law did Viacom break posting content they owned via 3rd party?

Second, the lawsuit against Google for 63,000 infringing uploads did not contain a single clip Viacom uploaded. Viacom wasn't trying to secretly manufacture evidence against Google.




Actual news
By icanhascpu on 3/21/2010 12:07:43 PM , Rating: 2
Mick Ive made it clear on plenty of occasions I think your articles are huge piles, but this is one where I actually enjoyed the read. This is what real journalism is and it was a pleasant, thorough outrageous read.

Whatever you did here, apply it to your future writing.




"People Don't Respect Confidentiality in This Industry" -- Sony Computer Entertainment of America President and CEO Jack Tretton














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