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Legal
Viacom’s YouTube action relates only to pre-2008 infringement
By CMU Editorial | Published on Monday 22 March 2010
Most coverage of the release of court papers relating to the ongoing Viacom v YouTube legal squabble last week centred on the allegations that, in the early days of the video sharing website, MTV-owners Viacom (and the digital marketing agencies they hired) actively uploaded content owned by the TV firm to the YouTube platform, which they used as a free promotional tool. YouTube’s lawyers are using said allegations to rubbish Viacom’s claims of copyright infringement relating to that era.
But perhaps more important in the legal documents was the revelation that Viacom are now only suing for alleged infringement that preceded May 2008. In terms of legal precedent, this is important, because in May 2008 YouTube launched its Content ID System which in theory blocks the upload of any registered unlicensed content.
This system allows copyright owners to make the YouTube system aware of content they own which they do not wish to see on the video-sharing website. The system, when it works, will automatically stop said content from being uploaded. YouTube has always taken down copyright infringing content once it is aware of its existence, but inevitably under a manual take-down system there will be a period, between upload and take-down, where the infringing content is available. That method also requires copyright owners to monitor the YouTube network for uploads of their content. The Content ID System solves many of these issues.
Viacom’s legal papers say: “We do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom’s summary judgment motion is granted, do not intend to do so at trial”. This means that Viacom’s lawyers recognise that, with the Content ID System operational, YouTube and its owners Google are fulfilling the requirements set out in the US’s Digital Millennium Copyright Act to avoid liability for infringement, even if some infringing content still circumvents the filters and goes online.
Of course, YouTube would argue that their original manual take-down system, without the automated wizardry of the Content ID System, was already sufficient to enjoy the protection of the DMCA’s so called safe-harbour clauses, and some similar cases in other US courts – in particular those involving the now defunct Veoh – have generally backed that viewpoint.
But Viacom’s recognition of the significance of the Content ID System means that even if the MTV owner won its case relating to pre-2008 infringement (and not just in regards the allegations of wilful infringement by YouTube’s original top guard, but all infringement that occured under the manual take-down system), while Google might have to write a large cheque, they wouldn’t have to change anything about the way YouTube currently operates. Which, in the bigger picture, is significant.
It also means that any YouTube competitors nervous that their own manual take-down systems may not be sturdy enough to ensure zero liability for any infringement they inadvertently enable, could feel more assured if they copied the Google service’s Content ID System.
