Print 29 comment(s) - last by slashbinslashb.. on Mar 15 at 3:49 PM

Google says its protected by the DMCA

Yesterday, Viacom dropped a $1 billion lawsuit bomb on Google, claiming that the search giant "intentionally" allows users to post copyrighted material on its YouTube website. Today, Google's lawyers indicated that Google has a very strong legal stance against Viacom's claims. Under current copyright laws, Google indicated that it was well protected.

According to Google's associate general counsel Alexander Macgillivray, his company's actions are within the protections of the Digital Millennium Copyright Act (DMCA). "Here there is a law which is specifically designed to give Web hosts such as us, or... bloggers or people that provide photo-album hosting online ... the 'safe harbor' we need in order to be able to do hosting online," Macgillivray said.

Just a few days ago, DailyTech reported on the new Freedom and Innovation Revitalizing U.S. Entrepreneurship (FAIR USE) Act, which lightens the restrictions imposed by the DMCA even more so. In fact, the FAIR USE act aims to protect companies that provide products and services to consumers, from being sued by the likes of such organizations as the RIAA.

"This is an area of law where there are a bunch of really clear precedents, so Amazon and eBay have both been found to qualify for the safe harbor and there are a whole bunch more," said Macgillivray. Google said in a statement that it plans to have YouTube continue its services.

"We will continue to innovate and continue to host material for people, without being distracted by this suit," continued Macgillivray. Google previously won in a case involving similar copyright issues where it won based on safe harbor protection and other grounds.

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Sorry, does not fly
By creathir on 3/14/2007 12:44:41 PM , Rating: 2
Google is incorrect in their assertion. If this were the case, Napster would not have been taken apart like it had been. The legal precedence is Napster in this case, and by them hosting the files, they are responsible for the copyright infringement.

As stated before, I wish an agreement could have been made. Google needs to take a different approach than that of Napster.

- Creathir

RE: Sorry, does not fly
By themadmilkman on 3/14/2007 12:56:21 PM , Rating: 2
Whether their defense flies or not can't be determined until they appear in court and argue before a judge. Google has an exceptionally good legal team, and I'm sure Viacom does as well. I hope this goes to court because, frankly, I want to watch them fight it out. Should make for some entertaining legal theatre.

RE: Sorry, does not fly
By deadrody on 3/15/2007 6:53:16 AM , Rating: 2
Viacom has a great legal team ? Sure they do. Which is why they sued Howard Stern for a BILLION dollars and when the suit was settled, ended up giving him all the tapes from his show for the last 20 years. Usually, when you sue someone, the idea is to get concessions from THEM, not the other way around.

Google does not equal Napster. Google has not provided much of a response regarding what steps they have taken as a result of Viacom identifying infringing content. Remember, they crux of Google's argument is that it onus is on Viacom to ID the infringing content. Google does NOT have to police the 50 million videos on YouTube looking for Viacom content. They do have to take down Viacom content when it is identified for them.

The fact that Viacom and Google were in talks to make Viacom content available on YouTube should clue everyone in on what's really going on here. Obviously Viacom values the use of their content on YouTube at a much higher level than Google does. So if Viacom can't get Google to voluntarily pay them $1B, they'll just get the courts to make them pay that much.

RE: Sorry, does not fly
By Aikouka on 3/14/2007 1:10:10 PM , Rating: 5
There are some staunch differences between YouTube and Napster that you're omitting.

1) Napster was a P2P service where as YouTube is a hosting service similar to photobucket and imageshack.

2) Napster had no rules on making copyrighted content available. YouTube states in their terms of use that you must have the right to share the content to be able to upload it.

You can also go on how Napster was designed to share mp3s and how a majority of the transfers going on weren't legal and such, but there's no need.

RE: Sorry, does not fly
By slashbinslashbash on 3/14/2007 2:58:17 PM , Rating: 4
But (see Mark Cuban's blog, for much more on this) Google/YouTube has been quite good at reviewing videos to make sure they're not porn. Try as you might, you will not be able to find porn on YouTube. So they've already got some built-in system for reviewing/censoring uploaded videos. By filtering the content in any way, they are more than just a "hosting service" and therefore they slip out of the "Safe Harbor" protection of the law. A generic ISP that justs hosts the files on their servers without ever even knowing what they are (i.e., every file is just "data" whether it's video, audio, flash, HTML, etc.) falls under Safe Harbor.

Also, Google already has deals with (e.g.) NBC. SOMEHOW YouTube is able to police videos of NBC content now that they have this deal with NBC. So in essence Google is holding the media companies' videos hostage. "Sign an agreement, or we're going to let your videos be posted on our site."

RE: Sorry, does not fly
By deadrody on 3/15/2007 6:55:07 AM , Rating: 2
Having the "ability" to screen videos does not create a non-existent requirement that they do so. The law doesn't require that they do it, so their ability to do so is irrelevant.

RE: Sorry, does not fly
By slashbinslashbash on 3/15/2007 3:13:55 PM , Rating: 2
Nobody says that they're required to do so. I'm just saying that doing so makes YouTube qualitatively different from an ISP, which was the entity that the Safe Harbor rule was created to protect.

As a side note, ISPs have actual information on their users... like names, addresses, credit card info. That user information can be subpoenaed by a court in order to find the user and hold him responsible for crimes committed on the ISP's servers (the ISP is not held liable). This is not the case with YouTube. You can sign up for a billion different non-verified e-mail addresses through Yahoo, Hotmail, Bangladesh or Vanuatu or whatever kind of websites you want, and use each one to create yet another anonymous YouTube account. YouTube has no clue who most of their users are.... especially the ones who are breaking copyright laws.

RE: Sorry, does not fly
By Oregonian2 on 3/15/2007 12:52:00 PM , Rating: 2
Not true. A lot of ISPs don't allow porn distribution on their sites, it'd be in their contract terms with their customers (all that fine print stuff that one might not have read but agreed to anyway). And presumably they axe sites they host that break their rules or "filter" content as such.

RE: Sorry, does not fly
By Oregonian2 on 3/15/2007 12:59:49 PM , Rating: 2
P.S. - They don't do it out of being a requirement though, they do it because they just want to have that policy (probably because porn distribution would use a lot of bandwidth, my cynical side says).

RE: Sorry, does not fly
By slashbinslashbash on 3/15/2007 3:49:10 PM , Rating: 2
But, despite "disallowing" porn or other content prohibited by the Terms of Service, ISPs don't actively poke through people's files to find it. YouTube does. And YouTube automatically deletes porn. There are internet pornographers posting their own videos on YouTube. They make "teaser" videos that are specifically safe for YouTube, and their profile includes a link to the actual porn website. But they skirt the line and thus get it past YouTube censors (who seemingly do review every video).

That isn't how it is with ISPs. They don't have the time or manpower to view every single photo or video or open every .ZIP file looking for porn or hate material or whatever else they prohibit in their TOS. They simply don't check and can't be expected to check. You're right, I believe this is more due to bandwidth issues than anything else for most ISPs (I think it also has something do with NetNanny filters etc.... you don't want one porn site on a shared server blacklisting all the other sites on the same IP or group of IPs), but I guarantee that you could upload porn to any ISP you please and never be found out... although obviously if it causes a big spike in traffic then the ISP might get suspicious and check it out. But you could just upload it and leave it there for years and nobody would ever give a damn. If you do it and they find out, your account will be suspended or terminated, but the "finding out" part is the big thing. Very few would find out.

Lastly, there is a very big qualitative difference between YouTube and the porn-on-ISPs scenario that you brought up. Posting copyrighted video to YouTube breaks copyright laws. It is technically illegal. Uploading porn to your ISP doesn't necessarily break any laws, although it may terminate the contract with the ISP.

There is a difference between "filtering" and the porn scenario that you propose. Filtering is looking at every piece of content uploaded and rejecting content that doesn't fit, which YouTube does in the case of pornography but not in the case of obviously copyrighted material.

It's like the difference between living in an apartment where illegal drugs are "prohibited" but you could get away with using them if you're careful, and living in some sort of prison where everything coming in and out is thoroughly searched. In the apartment building, you'll never get thrown out if you don't do something to draw attention to yourself or cause problems with other tenants. In the prison, you'll never get the drugs in in the first place because everything is searched. Drugs are "prohibited" in both, but one takes a reactive approach to the issue while the other takes an active approach.

ISPs (at least the ones I've used) take the "apartment" approach. They do not actively filter everything uploaded to their servers. YouTube *does* actively filter everything uploaded to their servers. They reject porn no problem, but they allow copyrighted material to pass through all the time.

I also wanted to mention that I'm really not in favor of Viacom or the other copyright holders. I've done more than my share of Napstering and BearSharing back in the day. And I actually hate Viacom more than I hate most of the living-in-the-past copyright holders. But in this case I don't see how Google/YouTube can get out of this legal jam. Such a large, respectable (and profitable) company appearing to actively allow piracy paints a pretty big target.

RE: Sorry, does not fly
By NoSoftwarePatents on 3/14/2007 1:34:20 PM , Rating: 2
This will test the DMCA in a new way-it's nowhere the slam-dunk for Viacom as you project.

Google IS taking a different approach than that of Napster. Google is a huge target no matter what because of all that advertising revenue they generate.

RE: Sorry, does not fly
By Oregonian2 on 3/15/2007 12:57:34 PM , Rating: 2
There's a big difference. Napster didn't actually host any copyrighted materials, they only kept track of them much like Google's regular web-search services do. Youtube actually hosts the possible copyrighted material itself, much like an ISP. AFAIK napster never did that (other than the current company with the same name which sells downloadable material).

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