By Eriq Gardner
As expected, Google's unsealed summary judgment motion
in its copyright battle with Viacom relies on "safe harbor" provisions in the Digital Millennium Copyright Act to argue that it deserves to be protected from Viacom's claims.
As opposed to Viacom's motion
, which argues that a great bulk of material on YouTube's site is infringing, Google says that only a "tiny fraction (less than two one-hundredths of a percent)" infringe Viacom's copyrights.
The two companies disagree on basic elements like how YouTube works.
Whereas Viacom argues that YouTube is akin to a broadcaster, Google stresses that uploaded video files are automatically processed and stored.
Not surprisingly, Google goes out of its way to spotlight the decision in the Veoh cases
to buttress its argument about qualifying for "safe harbor" protection. It points out the steps it has taken to crack down on abuse, from repeat-infringer policies to enacting "technical measures" to identify and protect copyrighted works. YouTube denies "actual knowledge" of specific infringing activity.
More interestingly, it points out its role as a source of political information, pointing to the recent Citizens United case at the Supreme Court where the company made a cameo appearance.
The brief lacks the embarrassing details that make the Viacom motion such a fun read,
but YouTube entertainingly toots its own horn at every opportunity, citing its embrace by the Vatican, the Iraqi government, the Kremlin and others. Google quotes an executive of Viacom telling the Wall Street Journal
"you almost can't find a better place than YouTube to promote your video" and an MTV marketing executive who describes posting content on YouTube as a "no brainer." The brief says that before Google purchased YouTube, Viacom had expressed its own acquisition interest.
Perhaps the most sensitive part of the brief entails Google's allegations that Viacom "deliberately allowed clips uploaded by others to remain on YouTube" for marketing purposes.
Google cites the practice of "stealth marketing" by Viacom to get its content onto YouTube, quoting a senior vp of marketing at Paramount who describes a strategy for posting content to make it appear "as if a fan created and posted it."
To spotlight Viacom's bad motivations, the Google claims:
Google says these activities "bear directly on YouTube's knowledge of alleged infringing activity" because it obscured what was legitimate and what was not. The brief goes further to claim that in preparing its lawsuit, Viacom decided to "leave up" some videos out of self-interest. It points to clips of "The Daily Show" and "The Colbert Report" as examples and cites Viacom's confidential instructions to (3rd party copyright enforcement vendor) BayTSP on what to take down and what to leave up ("[It] grew so detailed and complex that the Viacom employee responsible for overseeing the BayTSP relationship compared them to Crime and Punishment.")
- Viacom hired an an army of third-party marketing agents to upload clips on its behalf.
- Viacom employees used email addresses and made special trips away from company premises so that they couldn't be traced uploading content.
- Viacom altered its own videos to make them appear stolen, like "footage from the cutting room floor, so users feel they have found something unique."
We're not sure whether Viacom has any duty to pursue all its infringed content, but clearly, YouTube wishes to separate itself from other file-sharing services deemed illegitimate in the past by showcasing its value for entertainment companies.
The company writes:
"YouTube simply is not the kind of 'pirate' service...that the Supreme Court described in Grokster. YouTube was founded with a legitimate purpose and has never encouraged its users to infringe; YouTube houses an indescribable diversity of non-infringing material; and YouTube has taken industry-leading steps to deter copyright violations."