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Thursday, January 26, 2023

The Big Viacom Sues GOOG & YouTube Roundup

Yesterday, news came out about
Viacom suing Google
for $1 billion over alleged video copyright infringement on YouTube. With some
dust settling, I thought it would be helpful to recap some of the analysis out
there. I’m pulling this roundup mostly from
coverage you’ll find
on Techmeme. Come along, and we’ll go through the official company statements
from both sides, the actual case, the importance of the Digital Millennium
Copyright Act’s "safe harbor" provision and how Viacom scoured YouTube to build
its case.


Viacom Files Federal Copyright Infringement Complaint Against YouTube And Google

is Viacom’s press release, with Viacom’s statement:

"YouTube is a significant, for-profit organization 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 and is in obvious conflict with
copyright laws. In fact, YouTube’s 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 – and high
cost – of monitoring YouTube onto the victims of its infringement.

This behavior stands in stark contrast to the actions of other significant
distributors, who have recognized the fair value of entertainment content and
have concluded agreements to make content legally available to their customers
around the world.

There is no question that YouTube and Google are continuing to take the
fruit of our efforts without permission and destroying enormous value in the
process. This is value that rightfully belongs to the writers, directors and
talent who create it and companies like Viacom that have invested to make
possible this innovation and creativity.

After a great deal of unproductive negotiation, and remedial efforts by
ourselves and other copyright holders, YouTube continues in its unlawful
business model. Therefore, we must turn to the courts to prevent Google and
YouTube from continuing to steal value from artists and to obtain compensation
for the significant damage they have caused."

Those inside Viacom got this

memo
, which starts off:

As you already know, Viacom has spent months trying to come to an agreement
with Google and YouTube in order to provide our popular video content on the
YouTube platform. Unfortunately, they refused to negotiate a reasonable
licensing offer. Instead, YouTube continues to take no responsibility for
airing copyrighted content, and selling advertising against it. None of this
advertising is shared with us, and despite many promises, Youtube has not
taken any significant steps to keep our creative works off the site and no
timetable has been set

Viacom Sues Google
For $1 Billion Over Unauthorized Videos
from us yesterday has Google’s
initial statement that it was issuing to people:

We have not received the lawsuit but are confident that YouTube has
respected the legal rights of copyright holders and believe the courts will
agree. YouTube is great for users and offers real opportunities to rights
holders: the opportunity to interact with users; to promote their content to a
young and growing audience; and to tap into the online advertising market. We
will certainly not let this suit become a distraction to the continuing growth
and strong performance of YouTube and its ability to attract more users, more
traffic and build a stronger community.

Google later sent us (and others) this quote from Kent Walker, general
counsel at Google:

"YouTube has become even more popular since we took down Viacom’s material.
We think that’s a testament to the draw of the user-generated content on
YouTube. We’ve been very successful forging thousands of successful
partnerships with content owners — like Warner Music, Sony/BMG, Universal
Music, BBC, and the NBA — interested in finding new audiences for their
programming. These partnerships offer the YouTube community access to some of
the best content in the world, ranging from entertainment and sports to
politics and news. And we’re only getting started."

How about the suit itself? Paul Kedrosky

points
at a

PDF version
hosted at the Wall Street Journal. A key charge:

Plaintiffs have identified more than 150,000 unauthorized clips of their
copyrighted programming on YouTube that had been viewed an astounding 1.5
billion times.


18 Reasons why Google and YouTube are Guilty of Copyright Infringement
from
Steve Bryant at Google Watch is an excellent breakdown of the Viacom arguments
against Google. What’s not in the case is any evidence of the 100,000 clips and
1.5 billion views that Viacom claims.

The figures are similar to those
Viacom cited in the
massive takedown notice is gave Google last February. As it turned out,
some of those videos
didn’t violate Viacom’s copyright at all. So it could be a big number of those
clips aren’t violations, though Viacom
has said only about
60 to 70 were mistakenly withdrawn. As for those views, they come from Viacom
having run a check for all the clips it says violate its copyright and then
pulling view numbers from each of those (see the end of this roundup for more on
how Viacom did the scanning). That also means the view numbers could be off.

Viacom admits the view numbers could be off in its suit — in fact, argues
they could be higher:

And that is only a small fraction of the content on YouTube that infringes
Plaintiffs’ copyrights, because as described below, YouTube prevents copyright
owners from finding on the YouTube site all of the infringing works from which
YouTube profits….

At the same time, YouTube allows its users to make the hidden videos
available to others through other YouTube features like the "embed," "share,"
and "friends" functions. In this way, YouTube continues to profit from the
infringement, while hindering Plaintiffs from preventing it.

The idea here is that content might be uploaded and shared privately with
others, potentially a copyright infringement. Or maybe not, in that I’m unlikely
to be sued for recording something off the air, burning it to a DVD to watch
later, then lending that DVD to someone else.

I won’t dive deeper into the legal arguments on sharing, since I’m not a
lawyer. Google’s chief defense seems to be that as a search engine and/or
storage system, it is protected by the
DMCA Safe Harbor
provisions
that require copyright owners to issue takedown notices.

That law sucks big time for a content owner subject to repeated
infringements. Many without the deep pocketbooks of Viacom have complained about
things like blog spam, where print content online is stolen, placed on something
like Google’s Blogger and then shows up in Google search results. Filing a DMCA
complaint takes time, and it doesn’t stop the culprit from doing the same using
another account.

That leads over to Mark Cuban, who in
You Go Viacom!
describes what many recognize — that the DMCA safe harbor is becoming outdated.
I joked yesterday on the
Daily SearchCast
that I was sure that we’d see the big content owners push
through some change that will give special protection to video content while the
poor print folks will still go through the same old hassles. Cuban writes the
same:

The DMCA Safe Harbors as they are written will not exist for very long. You
can bet the same companies that spend tens of millions of dollars to extend
copyrights to ridiculous extremes, or that want to push for truly ridiculous
things like a Broadcast Flag, or the new Webcast Royalties, will spend
whatever it takes to get the law changed to their liking. Just as they have
done multiple times before. One thing is certain, our lawmakers and lobbyists
are relatively cheap compared to the dollars at stake here.

Since we’re talking the DMCA so much, it’s time to highlight another article,
YouTube’s fate rests on
decade-old copyright law
, from the always excellent Declan McCullagh over at
News.com. He goes through the law, how it came to be and notes:

But what about the safe harbor’s first requirement of not ignoring massive
infringement? Viacom’s complaint says, "YouTube has failed to employ
reasonable measures that could substantially reduce, or eliminate, the massive
amount of copyright infringement on the YouTube site from which YouTube
directly profits." (For its part, Google says it’s confident that YouTube has
respected the legal rights of copyright holders and predicts that the courts
will agree.)

Avanzado, the entertainment attorney, says he expects Viacom to argue that
Section 512 doesn’t protect YouTube. That’s because the safe harbor applies
only if the Web site does not financially benefit directly from the alleged
infringing work.

IP Democracy also
notes that
Viacom ironically might find it wants to claim DMCA protection against the same
allegations it levies against YouTube that possibly could impact its
AtomFilms sharing site.

Now let’s get back to the $1 billion claim. You’d think that for a claim that
large, someone else made $1 billion that Viacom seems to have lost. We know that
YouTube itself sold for $1.65 billion in a stock deal. The
founders cashed in
big time, and Sequoia Capital has to be glad they got their $400 million or so
before a suit was filed. But
Are
You Kidding? A Billion Dollars?
from NewTeeVee reminds that YouTube itself
only made about $15 million last year.

Many have looked at the lawsuit, along with the giant claim, as simply the
next step in a negotiating tactic with Google.

Google’s intransigence triggered lawsuit
from the Los Angeles Times gives
some nice back story on the negotiation breakdown and how Viacom scanned
YouTube, painstakingly it says, to avoid catching legitimate uses as
infringements:

Sumner Redstone, Viacom Inc.’s 83-year-old chairman, got the call Monday at
the Four Seasons Resort Costa Rica telling him that the company he controls
was declaring war on Internet giant Google Inc. after months of failed
talks….

To lay the groundwork, Viacom hired workers and contractors to scour every
corner of YouTube’s site at a cost General Counsel Michael D. Fricklas put at
"tens of thousands of dollars a month."

Using "crawler" software for its reconnaissance, BayTSP reviewed some 1.8
million videos for keywords such as "Beavis and Butthead" from Viacom’s MTV,
"SpongeBob SquarePants" from Nickelodeon and "Jon Stewart" from Comedy
Central’s "The Daily Show." More than 150,000 clips were identified as
improper, which Viacom estimated had been viewed 1.6 billion times.

But Viacom didn’t want to shoot and miss in filing its claim. So it had to
painstakingly verify whether clips were improperly copied, might be considered
fair use or were even relevant to its lawsuit.

For example, was a clip featuring comedian Jon Stewart in the title lifted
from Comedy Central’s "The Daily Show," or did it come from one of his outside
appearances? Snippets of a video from MTV meshed with an amateur one could be
considered fair use. And a clip with Comedy Central’s "Stephen Colbert" in the
title might simply be an amateur stand-up desperate for the attention of
viewers.

As a result, dozens of workers had to spend hours effectively being paid to
watch YouTube.

Finally,

Viacom and YouTube’s Dance Around: History Through Links
from
PaidContent.org is a nice short link history of the falling out between Viacom
and Google, starting with YouTube’s deal with Viacom-owned MTV back in March
2006 through to Viacom’s demand to pull video content off YouTube last February
and up to the bombshell of yesterday.


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