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Information Technology News Google hits back at Viacom law suit
Information Technology News Google hits back at Viacom law suit | Google hits back at Viacom law suit |
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| by Stephen Withers | |
| Tuesday, 01 May 2007 | |
  
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In its answer, Google and YouTube assert that the DMCA provides a "careful balance" between the rights of copyright owners and hosting providers, and they they "not only comply with their safe harbour obligations under the DMCA, but go well above and beyond what the law requires." Other defences cited by Google include express or implied licences, 'fair use' provisions, and 'innocent intent' (which could serve to restrict the damages awarded in the event that Google loses). The heart of the dispute appears to concern exactly what the law requires carriers and hosting providers to do about infringing material. Viacom sees a highly proactive model, where providers should seek out and remove unauthorised copyright material, just as it says Google does with pornography. The fact that something is labelled as (for example) a clip from 'The Daily Show' should be enough of a 'red flag' to spur providers into action. On the other hand, Google's interpretation is along the lines of "tell us if there's something of yours on the site and then we'll take it down and try to stop it being uploaded again." YauTube's 10 minute limit also makes it difficult for users to upload complete TV shows and movies. Viacom claims "YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site" as it requires copyright owners to detect infringing material and alert YouTube. Furthermore, Viacom asserts that "YouTube has deliberately withheld the application of available copyright protection measures in order to coerce rights holders to provide it with licenses on favorable terms... Those who refuse to be coerced are subjected to continuing infringement." Google flatly denies these allegations, as it does most of Viacom's complaints. This may be sound legal strategy, but when Viacom says something like "YouTube also allows any person to 'embed' any video available in the YouTube library into another website (such as a blog, MySpace page, or any other page on the web where the user can post material)", Google's response of "Defendants deny the allegations" leaves non-lawyers scratching their heads as the official YouTube blog and any number of MySpace pages include embedded YouTube clips. This writer sympathises with the "don't shoot the messenger" theory when it comes to dealing with carriers and service providers, and it seems clear that YouTube does have a significant non-infringing use. And the fact that it benefits from advertising displayed alongside infringing clips seems much the same as a hosting provider obtaining additional revenue from bandwidth charges - both obtain a benefit from the display of infringing material, but it is an indirect one that occurs as a result of other parties making that material available. To a layperson, a core issue seems to be whether Google's hands really are as clean as its response implies. If the company is dealing promptly and consistently with 'take down' notices from copyright holders, isn't making it hard for those parties to find infringing material on the YouTube site, and is taking steps to prevent further copies from being uploaded, it deserves a win. But if, as Viacom alleges, it is more actively enforcing the rights of parties with which it has a licensing agreement. the outcome could be different. Google has requested that Viacom's case be dismissed with prejudice, and that the defendants should receive costs and "further relief". If the matter does go to trial, Google is demanding it be heard by a jury so it obviously believes it has the public on its side.{moscomment} |
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