Rule Of Law man says Viacom need to win YouTube litigation

By | Published on Wednesday 28 April 2010

Ronald A Cass, dean emeritus of Boston University’s School Of Law and chair of the US Center For The Rule Of Law, and a former Commissioner of the US International Trade Commission, has warned about the implications of American judges ruling in favour of Google in the much previously reported Viacom v YouTube litigation.

As previously reported, MTV owners Viacom are suing Google-owned YouTube for copyright infringement relating to the early years of the popular video sharing website, both before and immediately after Google’s $1.65 billion purchase of the video service. Viacom argue YouTube infringed its copyrights by allowing users to upload all sorts of content ripped off the various MTV channels.

The lawsuit is a test of the ‘safe harbour’ provisions provided for YouTube-style services in US copyright law. These obligate YouTube et al to operate takedown systems whereby copyright owners can have infringing content quickly removed, but in return say owners of content sharing sites who implement such a system will not be liable for infringement, even if they inadvertently host infringing content between the point of ‘user upload’ and ‘copyright owner takedown’.

YouTube argue they have always operated such a system and are therefore not liable for infringement, even if the video service did host Viacom’s content without the broadcaster’s permission. Viacom argue that having a theoretical takedown system is not enough, and that the aforementioned ‘safe harbour’ protection does not apply if a digital service provider deliberately turns a blind eye to copyright infringement on its servers.

They have presented internal documents from the early days of YouTube which shows management there knew the vast majority of the content on their site infringed copyright (and one document shows one founder uploaded some of it), but that management decided to only takedown content when they really had to because they knew the infringing content provided the majority of their traffic, and their business plan was to get as many users as possible so to up any sale price. Viacom also add that while Google were more responsible regards copyright with their own Google Video service, they let YouTube continue to operate its slack approach to piracy for sometime after buying the platform.

Cass, who is obviously very much on the side of the copyright owners in this dispute, writes in an opinion piece for “Steve Chen chastised fellow co-founder Jawed Karim for putting up ‘stolen videos’ himself, adding: ‘We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site … when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it”. But Chen also reminded his colleagues they couldn’t take down copyrighted material without losing about 80% of the traffic they were getting, the essential ingredient for building their business so they could sell the site”.

He goes on to allege: “YouTube facilitated massive copyright violations and knew it, and made a lot of money from traffic built on copyright violations. [They could and did monitor infringement] but stopped when it became clear just how much of its traffic and revenue were tied to piracy. Google stepped into YouTube’s shoes when it bought the company and turned a blind eye to what was going on”.

Until recently the consensus on this long running litigation seemed to be that Google had the stronger case, partly because similar disputes between content owners and YouTube rivals like Veoh have generally gone in the tech company’s favour. Though those cases tended to focus on the technicalities of video sharing services and what duty operators had to proactively look for and remove infringing content, over and above blocking access to such content when alerted to it by copyright owners. The Viacom case is more interesting because of the allegations YouTube deliberately pursued a strategy of allowing infringement in order to build its business.

Cass seems to think that makes the MTV owner’s case much stronger, and the implications of a ruling in YouTube’s favour more damaging for the content industries. He concludes: “The impact of this suit will go well beyond Viacom and Google. Secure property rights and liability rules for intellectual property will support continued investment in developing the shows and other content that have been the engines powering internet sites like YouTube. Absolving site operators from liability for ignoring rampant piracy would be a recipe for putting the internet under a cloud of creative uncertainty that will chill investment the way clouds of ash from Eyjafjallajokull’s eruption have chilled travel. The effects of a bad decision, however, would not vanish nearly as fast”.

It is worth noting that Viacom’s case only applies to infringing content on YouTube pre-2008, which is when the claimant accepts the Google-owned service introduced more proactive systems for blocking pirated content. It means that a ruling in Viacom’s favour, while possibly costly for Google, probably wouldn’t affect the way YouTube operates today. But in Cass’ mind, the precedent set if Google had to write a very large cheque would be important, because it would make other start-ups think twice before employing a policy of ‘turning a blind eye to infringement’ in order to build market share.

You can read Cass’ full opinion piece here.

For YouTube’s other arguments against Viacom’s lawsuit, check our previous report here.