Viacom’s YouTube appeal filed

By | Published on Thursday 9 December 2010

So, MTV owner Viacom formally submitted its appeal in relation to its long running copyright dispute with YouTube at the end of last week.

As previously reported, Viacom says that, in its early days, YouTube turned a blind eye to the mass uploading of copyright infringing content to its servers because it was that content that drove most traffic, initially upping the price the service’s founders could sell the site to Google for, and then enabling Google to secure a bigger slice of the then emerging internet advertising market.

Google argues that YouTube has always operated a takedown system so that if and when it is made aware of copyright infringing content it will remove it, and in doing so has protection from infringement claims under US copyright law. Viacom countered that in its early days YouTube only paid lip service to the Digital Millennium Copyright Act’s takedown system, deliberately operating said system in a slapdash way to ensure they continued to enjoy the high levels of traffic infringing content brought in.

Viacom also argued that YouTube’s interpretation of the DMCA’s takedown system put too much obligation on the content owners to track what infringing videos were being uploaded to its servers, and that the video service could be earning big ad fees until the point at which a content company spots its copyrights are being infringed.

Of course, YouTube has since developed a much more sophisticated take-down system which takes the strain off content owners somewhat, but Viacom argued that until those innovations went live YouTube was an infringer and should pay damages for infringements committed during that time. They would also presumably like a ruling that set a precedent that said any YouTube rival not currently operating an automated takedown system is still guilty of infringement, and should therefore pay damages too.

Anyway, as also previously reported, a US judge didn’t buy Viacom’s arguments, concurred with Google’s interpretation of the DMCA, and ruled in the web firm’s favour in a summary judgment. It is that judgment Viacom is now appealing.

And we now know a little of what Viacom has said in its appeal papers. It argues: “Nothing in the text or history of the DMCA even remotely suggests that Congress intended such absurd, disquieting, and disruptive results [as in the Viacom v YouTube case]. In fact, the text of the DMCA compels the opposite conclusion: internet service providers that not only are aware of pervasive copyright infringement, but actively participate in and profit from it, enjoy no immunity from the copyright laws and may be held to account for their theft of artists’ creations”.

Meanwhile, one of the lawyers added to Viacom’s team ahead of the appeal, Theodore Olson, told the Litigation Daily last week: “This is an exceedingly important case – one that will set a precedent, good or bad. To allow someone to willingly take advantage of other people’s violations of copyright law in order to build an enterprise based on that theft of copyright is not protected by the safe harbour provision and it is very important that the court say that”.

Needless to say, Google has said it believes that the original ruling on this matter to be correct and will fight any appeal.