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Uncategorized Thursday, April 5th 2012 at 5:10 pm

Viacom’s Billion Dollar Lawsuit Against YouTube Goes Forward, Threatening DMCA’s Few Useful Qualities

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Way back in 2007, Viacom filled a billion dollar suit against YouTube claiming that YouTube was purposefully turning a blind eye to copyright infringing content in order to boost the site’s popularity. The suit didn’t last long however, and soon a court threw the case out based on the fact that YouTube, by cooperating with DMCA takedown requests and removing allegedly infringing content, fell under the DMCA’s “Safe Harbor” protection, rendering the site protected from lawsuits so long as they were clearly trying to keep things under control. Now, the U.S. Court of Appeals has reversed that decision, and YouTube is back in the hotseat, apparently for not trying hard enough, which is utterly ridiculous. In fact, they’re already trying too hard.

“A reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website,” says the court’s 39-page decision, and while that might be the case —  I couldn’t say without seeing the evidence myself — YouTube’s takedown-happy policies suggest exactly the opposite. Just look at the laundry list of non-infringing content that YouTube has removed, presumably in a frantic bid to hold onto their safe harbor status, which now proven useless. Viacom itself has even made use of these requests, with great success I might add, to take down videos that didn’t even come close to infringing on its copyrights.

Viacom, obviously, doesn’t see it this way. “The court delivered a definitive, common sense message — intentionally ignoring theft is not protected by the law,” said Viacom spokesman Jeremy Zweig. Aside from Mr. Zweig’s total confusion of what constitutes theft, he’s also oversimplifying the issue by acting as if the matter is somehow simple, and that there’s an easy way for YouTube to be more involved. It’s not like YouTube hasn’t developed tools for trawling its vast wilderness of videos for infringing content. It has. It’s called Content ID and it’s terrible.

If you aren’t familiar, Content ID is a mechanism by which rightsholders can have YouTube videos compaired against their own library of content, marking YouTube videos that are infringing and presenting them to the rightsholder for confirmation, at which point the rightshold can remove the video or monetize it without 3rd party confirmation that it’s actually infringing. Developing and maintaining this system is about as hands-on as you could expect YouTube to get without hiring upload checkers or something, and considering video is uploaded to the site at about 60 hours of footage per minute of real time, that’s pretty impossible. The real kicker is that Content ID is already too biased towards the rightsholder. It’s just asking to be utilized in an ad-scam. And Viacom, and the courts apparently, are clamoring for more help from YouTube.

It can be easy to get mad at YouTube for playing along with all this, taking things down, and letting things be taken down; I used to get mad at YouTube all the time. The fact is, though, this is necessary for them to maintain DMCA safe harbor. As long as they keep being overzealous — something that really, really shouldn’t be encouraged in the first place — they are safe from expensive lawsuits like this one. This recent ruling however, seems to suggest that being overzealous isn’t enough; they have to be overly overzealous or something.

The main problem with DMCA is that it encourages the removal of content, infringing or not. The reason this is a problem is because since piracy literally isn’t theft and is instead copying, leaving up infringing content doesn’t necessarily result in a loss for the rightsholder whereas removing non-infringing content does necessarily result in a loss for the rightsholder of the removed video. That is to say, Viacom isn’t necessarily going to lose out on DVD sales if an episode of The Daily Show stays on YouTube for an extra few hours. No one is stealing their supply of Daily Show views. A independant film maker will definitely lose precious views and exposure when their non-infringing documentary gets taken down. Someone is actively taking something valuable away from this guy. Not only is the system unfairly biased, it’s unfairly biased towards the party that’s already got the advantage.

The bright spot here is DMCA’s safe harbor provision which means that all these non-infringing takedowns aren’t in vain, kind of. At least, if nothing else, YouTube is protecting itself from lawsuits by doing so, and can stay in operation which I think we all want. This ruling aims to crush that, arguably destroying DMCA’s one provision that wasn’t expressly in the interest of jealous rightsholders. Granted, the ruling doesn’t mean that YouTube will have to pay Viacom a billion dollars but instead means that someone still has to decided if YouTube will have to pay Viacom a billion dollars. Still, it’s a ridiculous prospect to suggest that, under current laws, YouTube isn’t trying hard enough to stop infringment. What else can they really do besides shut down?

(h/t Gizmodo)

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  • Jackbondnj16

    You lost me at “Piracy isn’t theft.”

  • verybored

    It is defined as copyright infringement. In theft, the original item is lost, in piracy – on the internet, not the high seas – it is not. Example:
    I pirate a CD’s worth of music. No-one loses anything.
    I steal a CD from the store. The store loses that CD, and in the process loses the amount of money they paid for said CD.

    There is an argument that pirating the music causes a “lost sale”. This is, in most cases, simply not true. There are exceptions, and those guys are the worst dicks. And if a lost sale is illegal, then should bad reviews be banned? Because they are responsible for more lost sales than piracy will ever manage to produce. 

    And the necessary disclaimer: I do not support piracy, except in the cases where the item is unobtainable legally wherever you are.

  • Jackbondnj16

    Well the point of capitalism is that you exchange goods and services for currency. If people receive a good without paying the proper amount of currency to the proper seller, then that is against the law. As a corollary, according to the law, if someone does not pay the proper amount of currency to the proper seller, then that person should not be allowed to receive the good or service desired.

    This applies even if people wouldn’t have paid the money for the good or service even if piracy weren’t an option. The point of capitalism is that if people can’t pay then they do without.

  • verybored

    Not what I would call the point of capitalism, but that’s irrelevant. I completely agree with your point. I was thinking about all of the ridiculous lawsuits demanding more than the music industries gross annual profit when I was whining about the lost sale fallacy. I really need to learn to put my unrelated thoughts into separate comments. 

  • Anonymous

    I dont think it would be that easy to remove all the videos that infringe copyright laws because of the amount of videos on youtube already as well as the ones that are being uploaded all day.

  • H104507

    Youtube used to be a quality site. No more. It is now a platform for internet attacks. I was viciously attacked in a slanderousYoutube video by a psychotic competitor. Youtube refused to remove the video. I was even threatened by a mentally ill Youtube member as a result of that video! So, since Youtube was condoning this libelous video, I posted a video of my own. And what does Youtube do? They delete my account? It takes no effort to create another account, but what a bunch of lowlives! It doesn’t surprise me that Youtube would be run into the ground as soon as the creepiest company on Earth – google – took it over.