A Quick Thought on the Viacom/Youtube Lawsuit Disclosures

Today a bunch of the filings from the Viacom/Google/Youtube lawsuit were made public today.  Here is a techcrunch link to all the goodies if you would like to read them.

Lots of folks have commented about the comments and responses from both the Google and Viacom sides. Each basically said the other side was wrong. No surprises there.

What has surprised me is that Google/Youtube didnt deny any of what I thought was the important stuff.  Then again, Viacom, from what i read (and i admit i didnt read every word) didnt make a big deal of what I thought was the biggest deal.

What was the big deal ?

In the DMCA it is clear that hosting companies are not supposed to know what is on their sites.  The logic in the DMCA was: If you dont know what is on the site, you can’t be responsible for policing it. That is up to the people who upload and who own the copyrighted content. Youtube knew what was on their site.

What caught my eye as “game over” material in the quotes from Youtube founder emails was the constant decision making process over what videos should stay and what should be removed.  They talked in one case about a guy uploading a ton of Family Guy videos and what they should do about it. Another stated “if we reject this we need to reject all the copyrighted ones”. Another asked “cant we keep it up a little longer”.

No question they monitored the site and knew what content  was on the site. They knew what was attracting users. They knew what would grow the site so they could be acquired.

They monitored the site and they  made decisions based on financial gain.

Game over.

27 thoughts on “A Quick Thought on the Viacom/Youtube Lawsuit Disclosures

  1. When you are as big as both these guys, what it “right” becomes moot.

    Comment by Dr.Yoho Cosmetic Surgeon Los Angeles -

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  3. i don’t agree that mark would necessarily be shorting google. however, he has certainly been beating this drum for a long time.

    Comment by http://dingoscalzones.blogspot.com -

  4. to me the most amazing part is that people still put this stuff in email. it’s got to be the most DUH thing ever not to put stuff in email

    Comment by dingosc -

  5. Eh I’m not sure who is in the wrong here… YouTube had a problem and tried to deal with it. As long as you have a policy where anybody can upload, you will have issues. The big production companies need to get a little bit of a grip and learn to adapt to the new age of video on the internet. They want to police it instead of trying to use it.

    Comment by jamakmfg -

  6. Basically it’s about money and who gets and controls it. Why is youtube against the twitterchick video? It’s a spoof and not negative at all, however someone at youtube decided it was “bad” for the twitter brand and removed it several times. I thought it was a great vid. Thanks for all you do Mark!

    Comment by rusearchable -

  7. Basically, DMCA aside, it boils down to this. Let’s assume you watch some porn, let’s say a specific piece of content has an underage actress. How do you justify indicting the distributor and the creator without prosecuting every single individual that’s ever viewed the content itself? You can’t exclude culpability.

    Comment by satyricon1969 -

  8. You’re missing the point – did it fall under violation of DMCA? Where?

    Comment by satyricon1969 -

  9. Mark, I love your blog, but have come to realize a few things.

    Your ownership of content and content distribution has blinded you and made you a biased source of real objective thought. You have an opinion which I always appreciate though.

    If you TRULY believed many of the things you wrote you would be shorting GOOG right now. I don’t know if you are or are not doing that. I am just making the point of put your money where your mouth is. You don’t have to mention it on your blog, but if you are NOT shorting GOOG then you really should ask yourself if your opinion is informed.

    Legally speaking I have a friend who is a lawyer and we speak about this often. I have approached it from a “wrong or right” perspective. He approached it from a “legal or illegal” perspective. He said that it is the COPYRIGHT holder who is responsible for making a claim of infringement. Which can only be done AFTER it has happened.

    Speaking in a right and wrong sense is purely opinion, but I have one. Content SHOULD be free. I am a performer and frequently I get paid little to nothing. I can safely say that I do not mind much because I enjoy what I do. We do live in free markets and people (Aerosmith for example)can market the hell out of themselves and make as much money as they can from various sources. I find is disgusting that people would be SO infatuated with themselves and money that they set themselves up as a tollroad of profit. Essentially a parasite. To say when too much money has been made is arbitrary, but there are too many people hiding behind a copyright law that is too favorable to “artists” and their Imperial Leaders (Disney, et al). They not just charge a price, but an inflated price.

    As far as YouTube goes Viacom and the others don’t want to kill it. They couldn’t. That would be stupid. It is what people flock to in order to find videos of THEIR programs that they couldn’t otherwise find…INSTANTLY. Things that wouldn’t have been paid for. Things that may in fact create revenue in other ways (someone may pass it to someone who buys the DVD or starts watching when it is on TV).

    The days of blowing money on content and being able to screw the end consumer to get it back and then some isn’t dead, but the power struggle continues.

    Comment by disfiguredskating -

  10. Great link Morgan. Love this slide –

    Google VP of Content Partnerships David Eun stated: “as Sergey pointed out at our last GPS, is changing policy to increase traffic knowing beforehand that we’ll profit from illegal downloads how we want to conduct business?”

    Comment by architechs -

  11. Inferential and circumstantial by my take. I don’t see anything that specifically points out where YT violated DMCA law.

    Comment by satyricon1969 -

  12. This is right on.


    Wasn’t like half the purchase price of Youtube given to the major media companies for the grandfather? Was Viacom not one of them?

    Comment by Morgan Warstler -

  13. Right and wrong isn’t relevant – what is is whether or not you tube violated federal law. Do I agree with the SCOTUS call on increasing corporations financial access to political candidates – in principal no, but it’s a free speech argument and is overwhelmingly protected by the constitution. Is it ethical – no. Is it legal – yes.

    The YT case is the same.

    Comment by satyricon1969 -

  14. For those still struggling with the ‘is it right or wrong?’ question:

    BitTorrent/Mininova, Emule, etc are services which have allowed people to consume movies, music and software without paying for them.

    Is it right to download tens of thousands of US$ of software (e.g. Photoshop, Office, etc) that somebody else has generously cracked and uploaded? No. (sure, you do it, but it’s not right).

    What is the difference between downloading a pirated video from BT, or watching it on-demand on Youtube?

    Imagine for a moment you have a shop which accepts stolen goods and sells* them to the public. Even better, if the original owner of some of the stolen goods notices them in the shop and asks them to remove them, the shop will oblige. Is that store breaking the law? Yes.

    Even if the store doesn’t make a profit (like youtube in the early days)? Yes.

    What absolutely blows my mind is that other content owners let Youtube get away with this. And then, once Youtube had become the Wallmart of stolen content, actually went into business with them in order to benefit from the footfall. (e.g. Vevo/Universal).

    I am especially surprised that New Corp let them get away with it.

    Comment by architechs -

  15. It is interesting to see the lengths to which people will go to defend Youtube.

    Let us be honest: we all love using Youtube to watch sports highlights minutes after the game, to find long-lost music videos from our youths, as well as full-length minute comedy shows, TV documentaries, and more. There are many people who would say that Youtube has enriched their lives in some way or another.

    But let us not confuse what is ‘right’ and ‘wrong’ with our own desire to defend a service (which we use) from a company we have no feelings for.

    Marc Cuban was right in 2005 and he’s still right today. We all knew that Youtube’s traffic came mostly from copyright-infringement, despite all the attempted smoke screens of ‘user generated content’. You only had to look at the number of views for popular music videos to know that. But the quotes from the Youtube exec’s emails are spectacular.

    Marc Cuban basically sums it up here: “They monitored the site and they made decisions based on financial gain.” Enough said.

    p.s. As for the “Viacom employees were also uploading copyrighted videos” argument, how does that defend Youtube’s actions?

    First off, Youtube was benefiting from the copyrighted material of thousands of content owners, not just Viacom. I am surprised that we have not seen a class-action lawsuit from thousands of small content owners/producers.

    Secondly, why shouldn’t Viacom employees be uploading videos to test whether Youtube really was taking the videos off afterwards?

    Comment by architechs -

  16. “What caught my eye as “game over” material in the quotes from Youtube founder emails was the constant decision making process over what videos should stay and what should be removed. They talked in one case about a guy uploading a ton of Family Guy videos and what they should do about it. Another stated “if we reject this we need to reject all the copyrighted ones”. Another asked “cant we keep it up a little longer”

    An irrelevant argument – if what they were doing was legal and within the provisions of the Act – just because someone thinks something is illegal doesn’t make it illegal.

    From MC> the DMCA is pretty clear on this. YOu might want to read it

    Comment by satyricon1969 -

  17. 1. Define to me what Service Provider is?
    A) Service Providers are service providers – so are garbage disposals. What makes Viacom think that it’s function is any different?

    2. How is YT in direct, provable violation of DMCA?
    It’s not – they exist because the rules were what they were. YT was simply lucky enough to be in the right place at the right time. If Viacom wants to change the rules based on an evoloving landscape – call their congressman.

    In short: this is Viacoms lame attempt at trying to force Googles hand for a stake.

    Comment by satyricon1969 -

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  19. There is a huge amount of space between Napster and Youtube.

    Napster was a service that matched people who wanted music with people who had it. The vast majority of the content available was copyright infringement – the people distributing it did not have the right to do so.

    Napster, by maintaining a central database of the content, was found to be a contributory offender.

    (It is worth noting that, although the RIAA legally “won”, if simply pushed folks to using Bit Torrent. This is basically a pushing on a waterbed problem, and what happens when you attack your biggest customers.)

    Youtube is a video sharing service that has substantial non-infringing uses. Who knows this? For one, the SVP of Marketing of Paramount, formerly part of Viacom. Additionally, basically anyone with a cam corder who uploads video of their cat. And people like Amanda Palmer, who use it to publicize themselves, building their own careers.

    Youtube pulls infringing content when notified, and takes proactive steps to identify potentially infringing content.

    The space between Youtube and Napster, both legally and socially, is huge.

    Comment by satanicabuse -

  20. Hey Mark: The reason Viacom didn’t play that up would probably be procedural.

    These are motions for summary judgment. The legal rule is that you can only get summary judgment if, construing all facts in the most favorable light for the other party, the law still requires you to hold in favor of the party filing the motion. Google could argue that there was no actual knowledge because they didn’t have a specific URL pointing to a specific video in the emails, just a general knowledge that items were there, and that’s not good enough *for summary judgment*.

    This would definitely be good evidence at trial, and if it goes to trial you should expect to see them make this point.

    Comment by donkeyxote -

  21. I thought this was all settled after the Napster lawsuits? What’s really the difference between Youtube and Napster?

    Comment by darryl3 -

  22. I can understand why Mike Fricklas, Viacom’s general council, is attempting to spin this. However, it is important to realize that that is exactly what he’s doing.

    Three years after filing the suit, Viacom keeps dropping videos from the suit, after if discovers their own employees were uploading them.

    If it takes Viacom itself three years to figure this out, how is Google supposed to do so?

    Additionally, according to Google’s filing (and this is a statement of fact on Google’s part, that Viacom can deny, if it likes):

    Paramount SVP of Marketing: clips posted to YouTube “should definitely not be associated with the studio ­ should appear as if a fan created and posted it”

    It is unclear if that statement was made before or after the 2006 split between Viacom and Paramount. If it happened after the split, that would make Mike’s comment technically true. Alternately, he might like to explain how an SVP of Marketing is not “top management”.

    Don’t take my word for it: read the filing for yourself, on page 41: http://static.googleusercontent.com/external_content/untrusted_dlcp/www.google.com/en/us/press/pdf/20100318_google_viacom_youtube_memorandum.pdf

    I trust that Mike will contest this, if it is untrue.

    Comment by satanicabuse -

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  24. Mark – two points to add after reading the comments

    We are aware of 1 video (among 62,000 +) uploaded by a lower level employee at Kinkos. The “secrecy” was a marketing person’s idea of making consumers think a promotional video came from regular folk. There is no evidence anyone tried to upload promotional videos and then sue on them or that top management was involved.

    In contrast, the emails show knowledge and intent at the highest levels and plans to build a huge audience on copyrighted content that in Chen’s own words kept 80% of the traffic coming to the site.

    Comment by mikefricklas -

  25. Mark,

    Are you going to stand by the “game over” notion in spite of the fact that Viacom employees were found to be uploading videos, and going out to the local Kinkos to avoid looking like they were doing so? Is it “game over” when an SVP at Viacom is on record stating that the uploaded files should look like they were upoaded by a fan?

    Clearly, your incentives align more with Viacom’s than Google’s interests, so we can expect you to have that bias. But ignoring the counter claims doesn’t do you any credit.

    Comment by satanicabuse -

  26. If YouTube was smart they would have created a policy of recommending that copyright owners go directly to the uploaders to resolve infringement matters.

    That would have made a lot of sense. Then again it would have been impracticable to enforce copyrights in an unregulated/unpoliced YouTube environment. Funny how the advancement of technology makes some intellectual property concepts not make sense anymore.

    The silliness of the notion that ideas can be owned just like physical objects is uncovered as new technology thrusts us toward our human potential.

    It will be interesting to see what unfolds with this lawsuit. Thanks for sharing, Mark 🙂

    Comment by Jeff Nabers -

  27. That doesn’t sound good for Youtube but its FAR from game over in any law suit. There’s more than a single question in any lawsuit. Youtube addresses this on page 30 of their document. I don’t know the specifics of this case enough, but the law is very specific in its applications, and these emails, as much as they convey a general sense of what was going on may show very different things upon specific application (specifically look at them under the claims put forth on page 30).

    The emails at hand show that Youtube was aware of the general issues early on, but it also shows they were trying to deal with it. That some people sought to postpone that dealing with it by a few weeks, it doesn’t mean that they DID postpone removing the clips. If the emails show they DID postpone removing the clips, if they still did removed them later, then the question isn’t whether they were responsive it is the definition of “expeditiously”. If they they had some specific knowledge of some specific clips and specifically did not remove them, that is only a smoking gun FOR THOSE CLIPS. There may be further evidence that they deliberately stopped such activity in the future, also. In which case maybe youtube loses 20000$ in the suit instead of billions. (Again I know next to nothing and these examples are just from the top of my head)

    The law and legal process is complicated and nuanced, and if you get into it there’s a reason for it.

    I’m sure both sides are well represented and it should be fascinating to see how this plays out.

    Comment by jdhastings -

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