Viacom v. YouTube lawsuit, which has gone on for so
long I’d forgotten about it, bubbled up again last week when
both sides filed summary judgment papers in federal court
in San Francisco. Viacom (the media giant that owns cable
networks like Comedy Central, MTV and BET, along with movie
studios, etc.) is suing the bejesus out of YouTube for, in
Viacom’s words, operating “as a haven for massive copyright
infringement.” The lawsuit was brought, curiously or not,
just a few months after Google bought YouTube for 1.7 billion
smackeroos. Viacom is seeking a billion dollars in damages.
The filings reveal a lot of the kind of litigational nonsense
one would expect from corporate behemoths going the scorched-earth
route. For example, YouTube seems to have “lost” a great deal
of Internal e-mails that would otherwise be relevant in the
case. One reason they gave is “computer crashes.” Whoopsy!
Viacom, on the other hand, has included in its briefs a bunch
of quotes from YouTube bigwigs that look incredibly damning,
but YouTube has responded by providing the entire communications
from which the quotes were taken; time after time, it’s clear
that Viacom has wildly and deliberately misrepresented what
the bigwigs were saying.
The practice of taking words totally out of context is something
I see in litigation all the time, and I’ve never been able
to get my brain around why lawyers do it, or why courts tolerate
it. It’s usually simply a matter of the other side jumping
through a few hoops to prove the deception, and the side responsible
for stretching the truth to the breaking point runs the risk
of looking bad. But they rarely do, as judges typically consider
these kinds of shenanigans fair game. I suppose the offending
lawyer figures there’s some chance the misquote will not be
challenged, or that maybe some judge or juror will get duped
into buying the lie, or at the very least that making the
deceptive argument will burn up the other side’s resources
in having to counter the lies with facts. As far as I’m concerned,
it’s a hideous practice that advances neither the truth nor
justice. It wastes all kinds of time and money, and it’s one
of the justifiable reasons why people hate lawyers.
Anyway, what all these court papers also show is that Viacom
really doesn’t have much of a case. Web portals like YouTube
are protected by the “safe harbor” provisions of a law called
the Digital Millenium Copyright Act, which says that YouTube
generally doesn’t have to actively monitor what’s being posted
on its site. Once the portal is informed that there’s infringing
stuff posted, it has a duty to investigate and take down offending
material. This merely reaffirms that it’s the copyright owners’
duty to police its copyright, not someone else’s. In other
words, it’s Viacom’s job, not YouTube’s.
This makes perfect sense. Because often the copyright owner
is fine with the fact that their stuff has been posted without
permission. A few years ago, I noticed that folks had posted
Blotto’s old videos on YouTube. My reaction was, “Great, now
I don’t have to do it.” I’d been meaning to do it myself but
was too lazy to figure out how. I wanted the videos up, for
whatever promotional value they might bring. Somebody even
posted “Lifeguard” under the heading “Worst 80’s Video Ever.”
It’s closing in on a quarter-million hits, and the comments
are amazing. And I ain’t touchin’ it.
I’m certainly not alone here. Lots of copyright owners turn
a blind eye to “unauthorized” posts. In fact, court papers
filed by YouTube show that Viacom, while screaming bloody
murder about “massive infringement” on YouTube, was at the
same time surreptitiously putting up thousands of its own
programs for promotional purposes. Or maybe it was trying
to set up YouTube for a disingenuous infringement rap.
Several times a day someone sends me a YouTube link, usually
of some old music video that’s brilliant, funny, or revealing,
often all three at once. Does somebody own the copyrights
to these things? Undoubtedly. Did they put them up themselves?
Maybe, maybe not. And are they mad that their stuff’s on the
Internet? Probably not. They’re probably delighted.
In any event, in the lawsuit, Viacom is trying to create an
affirmative duty on the part of YouTube to actively monitor
everything that comes its way and to block “obviously copyrighted”
material posted by a non-owner, basically eviscerating the
safe harbor protections that allow all kinds of cool stuff
to get put on the Internet. If they win, there will be a lot
less stuff to enjoy on the Internet, and a lot fewer places
to enjoy them.