The ongoing dispute between Viacom and Google over the posting of copyrighted content on YouTube appears destined for the courtroom rather than the settlement table.
As we dug a little more into the persistent kerfuffle between Viacom and Google over YouTube, we found little reason to expect a resolution of the case before next year, at the earliest. Google generally fights its battles in court, and Viacom believes the nature of its lawsuit against YouTube puts it in a stronger position to win.
Win what, you might wonder. Usage of content, including its reposting on the Internet, represents a way for people to share what they enjoy. Viacom told Murdok that’s not a problem, as long as a site purchases a license to do that, as some have.
Not everyone has, of course, and that combined with the constant stream of uploading taking place created a situation where Internet users clash with old ideas about content and sharing. YouTube made it easy for the next generation to swap the 21st Century equivalent of the mix tape with others, but on a one-to-many rather than one-to-one basis.
The merits of fair use bear further discussion; we recommend Stanford and Darknet as a couple of places to look for more legal facts and for opinions, respectively.
Viacom’s dispute with YouTube merits a small review, which we’ll make an effort at delivering here. The suit originated with a six-count claim against YouTube’s deep-pocketed purchaser, Google, in March 2007.
Viacom opened eyes with its billion dollar demand, one the company feels is justified based on the investment Google made to acquire YouTube. What started ostensibly as a place to share amateur videos taken with portable devices grew into a phenomenon; YouTube has become a fixture in modern society.
The mechanisms that make it easy to share video, Viacom said, also enable the rampant copyright infringement the media company believes it suffers in damages. Viacom attempted to assert punitive damages on top of its original claims, a motion Judge Louis Stanton in US District Court in New York (Southern District) denied in March 2008.
In Viacom’s eyes, the infringement process works like this: Someone goes to YouTube and uploads a video. There’s a copy of the work, as it is recoded into codecs that can be embedded and streamed elsewhere.
See that thumbnail of a copyrighted video? Display rights violation. Click the display to watch the video? Performance rights violation.
For Viacom to win out over YouTube, they only need to convince the court on one of the counts they claim. YouTube has to defend against everything.
That will be a formidable challenge for the defense. YouTube also has to show it isn’t encouraging contributory infringement, by inducing others to allegedly infringe by sharing works. Remember the narrowly defined verdict in MGM v Grokster? Viacom thinks it applies here too.
Now that we’ve navigated into these turbulent waters, we can touch on the greater issue of controlling content displayed online. Part of Viacom’s suit argues that YouTube vicariously infringes on the media company’s rights.
That hinges on whether or not YouTube can truly control the content coming into its network. As Viacom pointed out, YouTube can and does filter content today, notable in the event of displays of illegal activity. In China, that includes certain political activism; Viacom believes this shows a mechanism of control exists.
YouTube described its controls to us, and by that description seems to have in place what Viacom called for in the User Generated Content Principles the media company began backing in October 2007.
Google’s announcement of work on tools to satisfy the media content industry’s demand for better policing of uploads led to the development and deployment of Video ID. Its features include taking a digital hash of each video upload.
When a DMCA takedown notice comes in for removal of a video, the hash allows YouTube to block subsequent upload attempts for that work. In theory, this seems to partially address what Viacom wants for the future.
The sticking point comes from policing the uploads for offending content in the first place. It’s a demanding effort, but to us seems like one that should lessen over time; as more content hits the index, that should stave off future infringing uploads of that piece of content.
To our layman’s point of view, a resolution presents itself, one that doesn’t involve a lengthy lawsuit being dragged into a vanishing point in the future. Ensure the filtering technology behind Video ID works to the satisfaction of content creators; enlist the cooperation of major studios to provide hashes of their works to a common database for filtering purposes, on an ongoing basis.
We think this endgame is what both sides want from the lawsuit anyway. With discovery taking place on both sides through the remainder of the calendar year, and neither Viacom nor Google giving any sign they want to settle the case early (Viacom fully expects it to go to trial, and Google tends not to settle cases, historically), the resolution to the suit won’t hit our screens for a long while.
