May 02, 2007
Viacom v. Google: Google's answer
Yesterday Google filed its complaint in Viacom v. Google.
The WSJ has a blurb on their law blog. Apparently Google has retained the services of two of the most reputable litigators in the country. Duh.
Google has pulled out all the legal stops. They identify twelve legal defenses.
The strongest is first, the DMCA safe harbor provisions (17 U.S.C. § 512). This is the only statutory defense they present, but does seem to exactly cover what they're doing. Viacom is indeed arguing a new legal theory that the DMCA does not include, namely that wilful infringers are not subject to safe harbor protection.
Google also presents a number of common law defenses, listed here in order: alleged licenses by Viacom, doctrine of fair use, failure of Viacom to mitigate damages, defendant's innocent intent, misuse of copyrights by Viacom (!), estoppel (equitable kitchen-sink-type defense), waiver, the doctrine of unclean hands (wrongdoing on part of Viacom would preclude recovery), laches (similar to statute of limitations defense), and the doctrine of substantial non-infringing use (Betamax).
Raising these defenses in their answer doesn't necessarily mean that Google seriously intends to litigate them, but they're keeping their options open. The attorneys have probably listed the defenses in order of descending viability, though the last one seems pretty important to me.
The next hearing is currently scheduled for July 27. This should be fun.
