[A2k] Viacom suit is Net killer, Google claims

[Michelle Childs]

If you follow this link to the original article there is a link to a
copy of Google's  defence.
Michelle


http://www.theregister.co.uk/2008/05/27/google_youtube_viacom_defence/


Viacom suit is Net killer, Google claims

Hey guys, this is what DMCA was made for

By OUT-LAW.COM =E2=86=92 More by this author
Published Tuesday 27th May 2008 17:59 GMT


Viacom's copyright infringement lawsuit against YouTube threatens the
way that hundreds of millions of people use the internet, YouTube
owner Google has said in its court defence.

YouTube is accused by media conglomerate Viacom of copyright
infringement in a $1bn court case that could prove a vital testing
ground for the legal basis of businesses grounded in user-submitted
content.

Google said that it not only complies with US copyright law, but that
it goes "far beyond" its legal obligations in the way that it protects
content producers and owners.

Viacom is suing YouTube in a New York court for copyright
infringement, alleging that YouTube profits from the videos it hosts
that infringe its copyright.

Viacom owns television stations such as Comedy Central, MTV and
Nickelodeon, and says that YouTube is liable for copyright
infringement even when it is users who publish clips from its shows
via the site.

Google says that YouTube is protected by US Copyright law which
shields it from liability if it did not publish the material and if it
acts swiftly to take it down once informed of its existence.

Viacom sought more than $1bn in punitive damages, despite the
copyright legislation only allowing actual or statutory damages. The
court ruled in March that it could not seek punitive damages.

Its suit claims that Viacom-owned videos have been viewed more than
1.5 billion times, breaching the US's Digital Millennium Copyright Act
(DMCA).

Google denies that it has broken that law. In fact it claims that the
law was written with services such as YouTube in mind.

"Viacom=E2=80=99s lawsuit challenges the protections of the DMCA that
Congress enacted a decade ago to encourage the development of services
like YouTube," said Google in its defence, lodged with the court.
"Congress recognized that such services could not and would not exist
if they faced liability for copyright infringement based on materials
users uploaded to their services. It chose to immunize these services
from copyright liability provided they are properly responsive to
notices of alleged infringement from content owners."

"YouTube fulfills Congress=E2=80=99s vision for the DMCA. YouTube also
fulfills its end of the DMCA bargain, and indeed goes far beyond its
legal obligations in assisting content owners to protect their works,"
said the court document.

The DMCA contains what is called a safe harbor provision, which is
what protects companies from liability for material uploaded by third
parties. It is this which Google believes will protect it.

Viacom, though, claims that Google deliberately ignores its
obligations in order to turn a profit on advertising on pages.

"YouTube strategy has been to avoid taking proactive steps to curtail
the infringement on its site, thus generating significant traffic and
revenues for itself while shifting the entire burden =E2=80=93 and high cos=
t
=E2=80=93 of monitoring YouTube on to the victims of its infringement," sai=
d
Viacom in its original claim.

"YouTube is a significant for-profit organisation that has built a
lucrative business out of exploiting the devotion of fans to others'
creative works in order to enrich itself and its corporate parent,
Google. Their business model, which is based on building traffic and
selling advertising off of unlicensed content, is clearly illegal," it
said.

YouTube warns users as they upload material that they must have
permission to do so, something which could help it defend itself in
court. Both sides in the dispute have asked for a jury trial.

Google said in its court submission that the case could alter the very
nature of the internet if it goes Viacom's way.

"By seeking to make carriers and hosting providers liable for internet
communications, Viacom's complaint threatens the way hundreds of
millions of people legitimately exchange information, news,
entertainment, and political and artistic expression," it said.

Copyright =C2=A9 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.




Michelle Childs
Head of European Affairs
  Knowledge Ecology International
www.keionline.org / www.cptech.org
Phone:+44(0)207 226 6663 ex 252
Email: michelle.childs@cptech.org