"YouTube was intentionally built on infringement," wrote Viacom in a statement released this week. Yesterday, the media giant made public 108 pages of documents detailing its $1 billion suit against YouTube owner Google—the latest move in a battle that has been raging for roughly three years. You could consider this new four-paragraph public statement to be the abridged version of those complaints: One-hundred odd pages have been knocked out, but the animus hasn't decreased one bit.
"Google bought YouTube because it was a haven of infringement," the statement continues. "Google knew that YouTube's popularity depended on infringing materials with several senior Google executives warning that YouTube was a 'rogue enabler of content theft.' Instead of complying with the law, Google willfully and knowingly chose to continue YouTube's illegal practices."
YouTube released its own statement on the subject, and while the words are less barbed, the approach is no less passionate: "Around the globe, YouTube has become a metaphor for the democratizing power of the Internet and information," the statement opens. Unlike Viacom's letter, this one is attributed to its writer, Zahavah Levine, YouTube's chief counsel. In other words, even on the company blog, this has gone beyond any semblance of civil discourse. It's a matter for the lawyers.
Like the Google Video case in Italy, in which the Italian courts put four Google employees on trial over a video that featured students bullying an autistic classmate, this suit seems to come down who should be held responsible for the content of an open site like YouTube—employees of the company or those who perform the uploading. According to the ruling in Italy, those who host the content can ultimately be held responsible for it (the minor defendants weren't actually sentenced to jail time).
While no one stands to benefit from the uploading of the bullying video, Google makes the argument that there's value for Viacom when its content is distributed through non-official channels. In fact, according to YouTube's statement on the matter, Viacom has actually been covertly uploading content to Google's video site:
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.
This claim isn't important because it justifies hosting the content, as in, Viacom did it, so everyone else should be allowed to. Rather it highlights what YouTube sees as hypocrisy. That is, while Viacom is aiming to get a large monetary compensation for its claim of having been wronged by YouTube's "intention infringement," all the while the media company has in fact viewed leaked videos on YouTube as an unparalleled promotional tool.
This case, however, will ultimately come down to the question of whether Google and YouTube have done enough to police uploaded content. Viacom claims that "the law is clear that Google and YouTube are liable for their infringement." And YouTube defends the infrastructure it has put in place to guard against such content: "With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them."
In fact, back in October, Lance Ulanoff, PCMag.com's editor-in-chief, spoke with a Google executive who outlined the site's automated copyright protection. "Rights owners sends us references files, we generate an abstraction of that, which is what we call an ID file. A very small representation of that fits in a database. We do the exact same process with every single video that's uploaded to YouTube and in that database we can compare them against each other and find matches."
As someone who uploads content to YouTube on a regular basis, I can attest that the site's software does a pretty good job of tagging content that is deemed copyrighted. Is it perfect? No. Even with the weight of Google's technology behind it, the service is unable to pull each piece of potentially copyright-infringing content. Cover songs are a good example of this: Machine-based cross-checking may not be able to spot the a piece of music if it's performed by a different artist.
That is where content owners and users come into play—by alerting Google of infringing videos. Google is invoking the Digital Millennium Copyright Act (DMCA) as part of its defense, suggesting that it cannot be held responsible for hosting copyrighted material until the material is brought to its attention, most likely through a Takedown Notice.
Viacom states, "No case has ever suggested that the DMCA immunizes rampant intentional infringement of the sort Google and YouTube have engaged in." But although it's true that the DMCA doesn't "immunize" YouTube, it does give the site protection from content of which it has not yet become aware—any content that might have slipped through the cracks of a good but imperfect automated vetting system.
While this fight doesn't have quite the same gravity as the Italian battle, the concern is the same. If Google and YouTube can be held responsible for each and every piece of uploaded content, whether an episode of "The Daily Show" or an atrocious bullying video, the future of content sharing is dim indeed.
It appears that Google is taking important steps toward policing its content: The automated cross-checking serves as one important line of defense, and the next step involves humans, which is where things like Takedown Notices come into play. Viacom can either continue to play a role in this process, or it can spend time in the courts attempting to squeeze giant sums of money out of Google. In light of these pages upon pages of newly released documents, it seems clear which path the company has adopted.