By Ashby Jones WSJ
We find pretty amusing this notion that a bunch of Viacom employees secretly uploaded hordes of their own copyrighted videos to YouTube in order to bolster their copyright lawsuit against YouTube’s parent company, Google.
We have no idea if it’s true, of course, but the allegation is out there, as of Thursday.
In dueling summary-judgment motions unveiled Thursday in the long-running, heated battle between Google and YouTube, some new intriguing allegations were revealed. Among them, that Viacom that Google’s YouTube unit had sought to exploit copyrighted works for profit, and, yes, that Viacom itself had secretly uploaded copyrighted clips it later demanded YouTube remove. Click here for the WSJ story; here for the NYT story; here for Google’s summary judgment motion; here for Viacom’s SJ motion. (We’ve got a clash of the legal titans here: Google is represented by lawyers from Wilson Sonsini and Mayer Brown; Viacom is repped by Shearman & Sterling and Jenner & Block.) The case is in front of New York federal judge Louis Stanton.
A quick breakdown of the arguments:
Viacom, the owner of Paramount Pictures, MTV and Comedy Central, cites internal YouTube memos and emails to argue that YouTube actively encouraged the distribution of infringing content, thereby disqualifying it from immunity under the Digital Millennium Copyright Act.
For example, Viacom cites a July 19, 2005, email in which YouTube co-founder Steve Chen reprimanded co-founder Jawed Karim for 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,” he wrote.
Google says the exchange was over viral videos, not “supposed piracy of media content.”
For its part, Google, presents evidence that Viacom executives actively marketed their shows on YouTube, often secretly. It also says that Viacom uploaded some of the clips it demanded removed.
Michael Fricklas, Viacom’s general counsel, said Viacom was responsible for uploading only “a couple hundred” out of tens of thousands of clips originally cited in its lawsuit. He described Google’s assertions as “red herrings” not relevant to the case.
So who won the battle of the SJ briefs? Eric Goldman, associate professor at Santa Clara University School of Law and director of the High Tech Law Institute, told the WSJ that both sides scored points. He said he was persuaded by Google’s argument that Viacom’s own lawyers couldn’t identify which clips were authorized to go up on YouTube and which weren’t. But he said that Viacom’s evidence that Google executives were aware that YouTube was filled with infringing content was also powerful.