Viacom has already failed in this lawsuit. If YouTube can prove conclusively that Viacom uploaded the videos then tried to sue YouTube then there is no way they can win.
At a company the size of Viacom it's not hard to imagine that one hand (marketing) was not talking to the other (legal).
If it were the legal people uploading content to plant evidence, that's another matter, but I don't think have one department out of sorts with your legal position necessarily undermines the case (tenuous as it was to begin with).
By analogy, think of a software company which has one dept. that steals its tools, does that preclude the company from defending its own IP? Morally, maybe, but I don't think you waive your legal rights by breaking the law by default.
IANAL but I've never heard such of such a principle.
Even if one hand is not aware of the other, what they did goes far beyond innocent and accidental uploading - it sounds like a pretty systemic policy:
It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
All of that can be explained by attempts at viral marketing. They don't want be 'outed' as the source, not to sabotage YouTube but because the viral kids won't promote BigCo.
I don't know if this will be Viacom's position, but it's one that Google should be prepared for.
It wouldn't matter. Viacom is a single legal entity. It can't both willingly participate in an act and then sue someone for allowing the act to happen.
You missed the point: it would be like a software company where one department distributed the tools on the internet and then the legal department tried to "defend" their IP by suing the people who had gotten those tools.
Come to think of it, it sounds a lot like the Monsanto case. Since they won, I guess Viacom can win here, too. Common sense is absent at these levels.
The subtle but essential difference is what the Viacom marketing team was perpetrating just a small subset of the claimed infringement.
To reiterate, I don't think the original claim has any merit, but I'm wondering whether this parallel action to the claimed grievance legally sinks their case.
Put it in front of a jury and Viacom would probably get blown out of the water, but the rhetoric makes it sound like this one action renders the whole thing legally frivolous (which I'm not convinced of).
I can see some defenses, for example, "We uploaded the content to verify the validity of assertions that filtering and content protection mechanisms were working as stated."
Or, "We were uploading content to quantify viewers and calculate losses due to copyright infringement."
Regardless, tons of users were uploading viacom content and youtube and then google profited off it, so their case is just as valid -- if it is valid at all.
How in the world could anybody prove these allegations? The YouTube statement claims
It deliberately "roughed up" the videos to make them look stolen or leaked. ... It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom.
It seems they've got their bases covered, that any upload vector might plausibly be from Viacom themselves. But how could they conclusively prove that this is what happened?
Is that really a defense, outside the court of public opinion? Not every Daily Show clip was uploaded by Viacom, and it's not infringement when Viacom does it.
It is, if we're still debating whether a YouTube clip is "Fair Use". One of the tests of Fair Use being the effect of that use on the material's market.
It's difficult to argue that YouTube clips kill the value of your product, when your promotions department clearly believes the opposite is true.
It might also be of legal relevance, if Viacom were complaining specifically about the clips it uploaded itself and moreso if they tried to use the presence of those clips to pressure a favorable business deal.
Is that really true? Seems to me like the monetary awards in copyright cases these days have very little to do with actual damages; see the recent P2P filesharing cases where the damages were over a million dollars for a double-digit number of files shared.
It may not be a defense against infringement, but it certainly does speak to the determination of damages suffered. You can't claim that youtube owes you $1B when clearly you saw positive value in having those clips up.
I take the point to be that if the judge doesn't uphold the DMCA safe harbors, they need to tell Youtube what they can legally do.
Viacom's stated alternative is for Youtube to divine the intent of the copyright holder. Arguing that the alternative to DMCA is absurdity and divining the intent of Viacom would have been impossible will tend to undercut this alternative.
I think it supports their claim for safe harbour under DMCA. To invoke "safe harbour" I think you need to show that it would be unreasonably difficult to police the content yourself. Google already has a good argument for that, but it strengthens it if they can show that Viacom is also uploading to YouTube in a legal yet indistinguishable (to YouTube) way to the people it claims are infringing.
I think what this case highlights best is the power of a little bit for free. Viacom knew that user uploaded clips on YouTube was a valuable marketing strategy, despite being at odds with current copyright law and potentially hurting the strength of copyright in the long run.
I hope this lawsuit goes on because Hulu was obviously an created for the purposes of the lawsuit. I.e., it was created to destroy the argument that the content companies brought this on themselves because they are slow to innovate and to bring their content to the net where their clients want to see it.
When this lawsuit ends, Hulu will likely switch to a pay model for many shows.
I dont get the Hulu arguement? Viacom and Warner Bros. are the only two big media companies that do not own a portion of Hulu. It's a joint venture between Disney, Fox and Comcast (who is buying NBC/Universal from GE).
