Viacom's continuing claims against Google about YouTube

In its lawsuit against Google seeking one billion dollars for the alleged copyright infringements committed and being committed on Google-owned YouTube, Viacom claims that it "has records of more than 150,000 unauthorized clips uploaded on the popular web site." That's an interesting, and very carefully crafted, statement. Viacom isn't claiming there are 150,000 instances of copyright infringement. Fair use only arises as an issue when the use is unauthorized. If use is agreed to, it's use is enforced by contract law. How many of those 150,000 "unauthorized clips" are really infringements? There's no way to know. Whether the unauthorized use of copyrighted work is fair use or an infringement requires too complicated a balancing of competing interests to distinguish among the 150,000 instances in an intellectually sound way.

Google claims it does more than is legally required as the owner of YouTube to control the use by individual uploaders of materials that might infringe. As I previously have pointed out, Google's policy on these matters seems to me a thoughtful and genuine effort to balance the opportunities for speech and creation created by the internet against the need for copyright ownership to provide sufficient incentive for creativity and invention.

And where in the world does the number of "unauthorized" uses come from?

Andrew McLaughlin on Copyright v. Fair Use and Google’s Latest Response

Andrew McLaughlin on Copyright v. Fair Use and Google’s Latest Response

From the Electronic Frontier Foundantion:

In OPG v. Diebold, [337 F. Supp. 2d 1195 (N.D. Cal. 2004)(pdf)] a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright." In turn, Diebold had violated section 512(f) of the DMCA, which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

Diebold subsequently agreed to pay $125,000 in damages and fees.

EFF's page providing all the legal documents in OPG v. Diebold is here.

Google's policy on DMCA takedown notices is set forth here.

Viacom terrorizes YouTube with DMCA Notices

From Cory Doctorow at BoingBoing on February 3, 2007:

Viacom did a general search on YouTube for any term related to any of its shows, and then spammed YouTube with 100,000 DMCA take-down notices alleging that all of these clips infringed its copyright and demanding that they be censored off the Internet. YouTube made thousands of clips vanish, and sent warning notices to the people who'd posted them, warning them that they were now on a list of potential copyright infringers and telling them that repeat offenses could lead to having their accounts terminated.

This is shockingly bad behaviour on the part of both Viacom and Google, YouTube's owner. Viacom's indiscriminate spamigation is incredibly negligent and evil. They certainly know that a search for a term like "Redbones" will catch videos like Jim Moore's Sunday nite dinner at Redbones in Somerville, Mass (a 30 second clip of Moore and several friends "having dinner in a ribs place in Somerville"). The idea that they have members of the bar -- officers of the court! -- signing affidavits swearing that they have a good-faith belief that these clips infringe their copyrights is disgraceful. Practicing law is a privilege, not a right. The law societies should be holding these attorneys to account for this kind of behaviour.

But Google's lawyers should have known better, too. The DMCA says that if a web-hoster ignores a takedown request, it's liable for copyright damages if the material in question is found to be infringing. YouTube can't afford to just let any lunatic -- including the savage pricks at Viacom -- indiscriminately censor the content it hosts. That's not fair to its customers.