Google Viacom Copyright Lawsuit Could Affect Facebook MySpace and YouTube

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Accusations are being slung-around both ways in the Viacom / Google court battle that could affect how everyone in the world uses the Internet. YouTube, MySpace, Facebook along with every blog and forum could be affected negatively if the court decision favors Viacom. The Internet could basically be locked-down and the Digital Millennium Act could be neutered.

The Safe Harbor clause in the Digital Millennium Act limits the liability of website owners and providers. “Congress enacted the DMCA to benefit the public by permitting open platforms like YouTube to flourish on the Web,” YouTube said in a statement.

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It would be nearly impossible for blog owners to determine whether a comment was copyrighted or for YouTube to determine whether a video was copyrighted before it was uploaded to their site. Under the Safe Harbor clause the blog owner needs to do due diligence and remove any infringed material once it is called to their attention by the copyright owner.

In the billion-dollar lawsuit Viacom is complaining that Google did not provide due diligence. They even say that Google co-founder Sergey Brin said the company could benefit from uploaded copyrighted material. This may or may not be true, but Google’s claim is even more negative.

Confounding the problem is Viacom’s actions, according to court documents released today. Viacom tried to buy YouTube at least seven months before they filed the suite. Before that time they often uploaded clips to promote their shows.

Viacom originally wanted to partner with Google in the purchase of YouTube but Google bought the site without any help. In 2006 they purchase YouTube for $1.76 billion. Within months they offered Viacom $590 million for video licensing rights.

Google says that Viacom intentionally uploaded videos to YouTube:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. 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.

In their brief Viacom said “To them, the DMCA is just a takedown notice statute. Embracing Defendants' position would render most of the statute enacted by Congress a nullity, for responding to takedown notices is only one of numerous preconditions to DMCA immunity”.

Viacom alleges that YouTube had knowledge of the infringement and failed to do anything about it.

By: Tom Madison

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