March 14, 2007
Viacom wants to put YouTube out of business
So I snagged a copy of the complaint from Viacom v. Google from Freedom to Tinker. Analysis follows.
In short: Viacom isn't just trying to seek damages, they're trying to put YouTube out of business. If they wind up owning Google, well, they wouldn't mind that either.
1) The thrust of the complaint seems to be that YouTube refuses to do Viacom's dirty work. Viacom doesn't want its videos shared, and it wants Google to police that. Viacom does not allege that YouTube has refused any takedown notices, but points out that it only takes down the actual video uploaded, and does not proactively search its own database and take down any other allegedly infringing videos that might be there. Furthermore, Viacom alleges that all a user need to to re-upload a movie is to alter a frame or two and the filters designed to prevent the re-submission of a taken-down video are easily circumvented. This idea is woven throughout every allegation of the complaint: policing content is expensive, and Viacom wants the benefits of copyright without the costs of protecting it themselves.
2) Viacom is unhappy that YouTube allows the creation and sharing of private videos, only accessible by password. They allege that there could be infringing content behind those passwords, and they want to be able to see what's in there so they can send appropriate takedown notices. Note to all: Viacom wants to know everything you're doing with your media, whether public or not. Not that this comes as any surprise, but dang, at least try to be subtle about it. Now it's out in open court.
3) Viacom alleges YouTube is deliberately interfering with the ability of copyright holders to police their own works. Not only do they think that allowing password-protection falls into this category, but they're upset that YouTube only returns 1000 videos when you do a search, implying that there could be more "South Park" videos out there that didn't come up this time.
4) Viacom alleges that the distribution of copyrighted content is central to YouTube's business model and that they're deliberately facilitating infringement. There is certainly an argument for this, but I'd be quite interested to know the ratio of copyrighted to uncopyrighted works that show up on YouTube. It's my experience that the latter are far more prevalent than the former, suggesting that YouTube is still an entirely viable business absent copyrighted works.
5) Viacom attempts to get around the protections offered to forum admins under the CDA by focusing on YouTube's actual functionality. You upload a video to YouTube, but then YouTube copies that video into its own format and presents "share" and "embed" code at every viewing. Viacom seems to allege that this constitutes first-order infringement that is distinct from a user simply uploading a file which is then uploaded to anyone who asks. It will be interesting to see what Google and the courts make of that.
The complaint sets forth six claims for relief: direct copyright infringement for public performance, public display, and reproduction, inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement.
Viacom seeks injunctive relief requiring Google to "employ reasonable methodologies to prevent or limit infringement of Plaintiffs’ copyrights". It would seem that the only real way of doing this would be to take down the service entirely, as the only real way of making sure that a given video isn't copyrighted by someone would be to have every submitted video manually authorized by an actual person. Given that YouTube has at least a few hundred million videos uploaded, this would entirely preclude the operation of the site as it stands. Assuming YouTube still sees 65,000 new videos a day it would take at least 800 people working full time to authorize new videos on a daily basis, costing tens of millions of dollars every year.
Viacom is also seeking maximum damages under copyright law, which would probably put damages somewhere in the trillions, as the statute provides for $150,000 per infringement.
They're basically going for the whole schmeer: injunctive relief, damages, and all profits YouTube has generated from the allegedly infringing activity. Any judgment against YouTube would totally destroy its ability to operate in any form whatsoever. Which is exactly the point: They want to put YouTube out of business, because YouTube and the Internet are to corporations that make money by selling copies of things what the comet was to the dinosaurs.
