March 13, 2007
Clashing titans
Viacom is suing Google over videos on YouTube. They're seeking $1 billion in damages. I'm pretty sure Google isn't going to settle, cause you could support a mid-sized law firm for a few years on that kind of money, making litigation far preferable to settlement.
I'm not entirely sure Viacom can win here. IANAL (yet), but there exists significant legal protection for operators of websites that allow the public to host content. Admins can't be held liable for libelous content, so I'm not sure they can be held liable for copyright infringement either, especially as the DMCA effectively puts the burden on content owners to police their own stuff. Zeran v. America Online, Inc., 129 F.3d 327, 331 (1997); See also 47 U.S.C. 230. That case and that statute, part of the Communications Decency Act, had to do specifically with libel and obscenity, and the act does state in § 230(e)(2) that it does not "expand or limit" intellectual property law, but I don't think that immunizing ISPs and website admins from liability for third-party copyright infringement constitutes a limit on IP law.
If Google refuses to take down something Viacom claims is its content, then we'd have a lawsuit, but I don't think that's what Viacom is trying to do here. They're trying to get Google to bear the costs of its users behavior and shift the burden from Viacom to Google.
I'd have to look at the actual complaint, which doesn't seem to be online just yet, to get a good idea of exactly what injury Viacom is claiming, and under what legal theories they are seeking relief, before I can give any more detailed opinions on the case.
I'm certain that YouTube has been aggressively removing viacom related content. Daily Show clips are removed almost as fast as they post them, which is why I've started watching them on iFilm.
Posted by: Josiah at March 13, 2007 12:33 PMThat's been my experience too, which suggests that Viacom is using a different legal theory to ground their complaint. Again, without actually reading it, it's impossible to say what they're looking for.
Posted by: ryan at March 13, 2007 1:18 PMLaw noob question: how do people figure what kinds of damages to seek? I mean, ok, yes, Youtube does have videos of copyrighted content, though they do seem to go down quickly if the owner complains. But how could viacom possibly justify 1 BILLION in damages? It seems unlikely that they could ever demonstrate that they've somehow lost that much revenue due to people watching badly-pixellated, streaming video of TV shows.
While I understand the need to protect intellectual property, that dollar amount makes the whole thing sound pretty frivolous to me.
Posted by: Dave at March 14, 2007 9:34 AMUnder 17 U.S.C. § 504, if the plaintiff can prove that the copyright infringement was willful, as Viacom has alleged, the court may impose damages of up to $150,000 per infringement. Actual damages are also claimed, but your instinct that this is almost impossible to quantify is largely correct. The law also allows the plaintiff to recover any profits gained by the defendant through infringement, a sum much easier to come by.
Having read the complaint (analysis here ), the figure of $1 billion comes after the "actual damages plus profits" option for damages, and that's almost certainly referencing profits, as YouTube and Google make a lot of money.
As to what kind of damages to ask for: if the law provides more than one kind of damages, always ask for everything. You probably won't get all of 'em, but if you don't ask for something you probably won't get it.
Posted by: ryan at March 14, 2007 10:50 AM