Viacom and Google released a number of previously sealed documents last week on Viacom's lawsuit against YouTube and the opposing counsel are taking the legal battle to the internet with statements and counter-statements.  Zahavah Levine (YouTube Chief Counsel) posted a blog entry that made some seemingly serious counter allegations against Viacom.  Levine wrote that Viacom had secretly uploaded Viacom-owned video clips to YouTube and is suing Google for illegally hosting those same video clips on YouTube.

Zahavah Levine:
"Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong."

On the surface, this looks bad for Viacom and Jason Mick saw this as the "smoking gun" against Viacom.  Google is essentially arguing that because some of the infringing Viacom clips were uploaded by Viacom or marketing firms hired by Viacom, there is no possible way for Google to know which of Viacom clips were Viacom-authorized and which weren't.  Worst yet, it sounds like Viacom is actually suing Google for infringing material that they posted on YouTube themselves which sounds like a case of manufactured evidence.  But this is a good example of why we really need to also hear Viacom's side of the story to get a clear picture of what is going on.

Viacom has stated (via Nate Anderson of Arstechnica) that:

"This whole exercise is a red herring. First, none of the infringing clips at issue in this lawsuit were uploaded to YouTube by Viacom or its authorized agents. Second, the number of uploads to YouTube that Viacom did authorize (for which Viacom is not suing for infringement) was very limited compared to the 63,000 unauthorized infringing clips claimed by Viacom in this litigation. Third, of that small number of authorized clips, virtually all were uploaded to YouTube using official Viacom account names, and YouTube was fully aware of this fact."

Viacom states that Google was "fully aware" of the Viacom-authorized account names that uploaded virtually all of these videos.  Viacom also seems to be contradicting Google's claim that Viacom is suing Google over clips that it had uploaded itself by saying that none of the clips uploaded by Viacom are part of the 63,000 infringing clips named in the lawsuit.  A reasonable way to interpret these seemingly conflicting statements is that the specific clips named in the lawsuit were not uploaded by Viacom or Viacom authorized third parties, but some of the named infringing clips were the same content as the Viacom-authorized clips.  For example; Viacom uploads a clip from Comedy Central to YouTube for promotional purposes, but someone else not authorized by Viacom also posted the same Comedy Central clip on YouTube.

This does not get Google off the hook because even if Viacom uploaded a particular clip and made it free to see on YouTube, that does not make it legal for anyone to post that same clip or any other Viacom clip.  However, YouTube or any other website cannot be held liable for user-uploaded content for which they have no knowledge of under the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA).  But the key term "no knowledge of" is where YouTube and Google have some serious problems based on the email evidence.

Based on the emails evidence, both YouTube (pre-acquisition) and Google (post-acquisition) did have very specific knowledge of infringing content.  The Co-founders of YouTube and employees at Google had detailed discussions with each other about very specific infringing content and they made the conscious decision to leave that infringing content on the site.  Co-founder Steve Chen told fellow co-founders that they had to grow traffic at all cost to sell YouTube (which they did and made a lot of money).  Chen wrote that because 80% of their traffic depended on infringing content, they should leave it up until the content owner notified them to take it down.  Even more damning is the fact that YouTube product manager Maryrose Dunton posted a copyrighted clip of Ed Sullivan and when YouTube finance director Brent Hurley asked her to take it down, she replied "maybe I'll just make it private ;)".

This mountain of email and IM evidence seems to be the same kind of evidence that damned Napster if not worse.  Had YouTube and Google employees simply played dumb by hearing no evil and speaking no evil (at least not in discoverable form such as email or Instant Messaging), or at least pretend they didn't see any illicit content even if they did, they probably wouldn't be in this mess.  The Viacom secretly uploaded defense probably won't save them and the court could make this very painful for Google when it's all said and done.