The Viacom lawsuit against Google/YouTube took so many odd turns this week that I felt like I was watching the 1970’s sitcom Soap.  Each episode started off with a recap of the previous one, and said, “Confused?  You won’t be after this episode of Soap!”, and inevitably you were more confused at the end of it then ever.  If all the back-and-forth between the two companies this week, and the release of hundreds of pages of court documents did anything, it left all of us a lot more confused then when we knew nothing but the fact the lawsuit existed.

Viacom has sued YouTube — and in turn the site’s owner, Google –for $1 billion dollars in damages.  At the heart of the case is Viacom’s claims that YouTube was founded on the intentions of allowing copyrighted material to appear on the site to increase its traffic.  The suit, first filed in March, 2007, cites 63,000 videos that infringed Viacom copyrights from sources it owns such as CBS, MTV, Comedy Central and more.

viacom vs youtubeAs part of its offense against the popular video sharing site, Viacom’s court documents include numerous e-mails between the founders of YouTube that pre-date Google’s acquisition of the company.

  • July 19, 2005 from YouTube co-founder Steve Chen to YouTube co-founders Chad Hurley and Jawed Karim “jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”
  • YouTube co-founder Steve Chen wrote “if you remove the potential copyright infringements… site traffic and virality will drop to maybe 20 percent of what it is.’ Karim proposed they ‘just remove the obviously copyright infringing stuff.’ But Chen again insisted that even if they removed only such obviously infringing clips, site traffic would drop at least 80 percent. (‘if [we] remove all that content[,] we go from 100,000 views a day down to about 20,000 views or maybe even lower’).”
  • In response to an Aug. 9, 2005 e-mail from YouTube co-founder Chad Hurley, ouTube co-founder Steve Chen said: “but we should just keep that stuff on the site. I really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down.”

Admittedly some of this looks pretty bad for YouTube, but as time went on, YouTube began complying with all DMCA (Digital Millennium Copyright Act) requests to take content down.  And that is actually where things get really confusing.

In a blog post from Zahavah Levine, YouTube Chief Counsel, in regards to this whole case, he states that it was impossible for YouTube to determine what was authorized to be on the site and what wasn’t because even Viacom didn’t know.  Apparently Viacom on several occasions issued DMCAs for videos that it had placed on the site itself.  Mr. Levine states:

As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

So it appears that YouTube’s defense will be totally based around the concept that even if copyright holders can’t discern which clips are legal, and which aren’t, how could the site have possibly been expected to know?

Why does all of this really matter to you, the common every day Internet user?  Well, it matters greatly to be honest.  If Viacom was to win, which I doubt as they would have to prove YouTube employees knew these specific clips they are being sued over were infringing content, it could completely change how the average person distributes content online.  Imagine having to prove you have the rights to upload every image you use in a blog post on Blogger or Tumblr before you’d be allowed to use it.  That YouTube video you want to post from a bar has a copyrighted song playing in the background, do you have the rights to the music?  CNET News has a lengthy post spelling out every point about why you should care, but the short version is that Viacom winning will impact every corner of the Internet and how we have come to use it.

While violating copyrights is wrong, the current version of the copyright law is so antiquated by Internet standards that it is going to have to be rewritten, and very soon.  Until that happens, though, this ruling could be a massive game changer for all of us.

What say you?  Should YouTube be held accountable for every clip posted without a DMCA request being sent?

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