Viacom vs. YouTube unsealed! YouTube's Steve Chen on copyrighted content: 'Steal it!'

By Eriq Gardner

Viacom's eagerly-anticipated summary judgment motion was released today, arguing why Google-owned YouTube deserves to be hammered for hosting user-uploaded videos that infringe copyrights.

Here's the full motion (PDF download).

YouTube has proclaimed a "safe harbor" from liability under USC 512(c) thanks to efforts to respond dutifully to takedown requests. But Viacom goes out of its way to present the case that YouTube was founded upon and continues to exist as the result of intentional copyright abuse.

The narrative showcases the inner thoughts of top executives as they built and managed one of entertainment's fastest-growing properties. 

Revealed details about the early phase of YouTube's growth include:

• YouTube founders Chad Hurley, Steve Chen and Jawed Karim e-mailing each other with full knowledge about copyright trouble. They noted the popularity on their network of Viacom's "South Park" and were hit with complaints from YouTube's ISP about violating its user agreement for hosting copyrighted content. "I'm not about to take down content because our ISP is giving us shit," e-mailed Chen. Ouch.
• Right around the landmark Grokster decision establishing that websites could be liable for users' infringements, Hurley recognized a problem. "We need views, [but] I'm a little concerned with the recent Supreme Court ruling on copyrighted material."
• In 2005, the founders are said to have removed some obviously infringing videos to create the appearance that they were being compliant. "That way, the perception is that we are concerned about this type of material and we're actively monitoring it," Chen writes. "[But the] actual removal of this content will be in varying degrees. That way...you can find truckloads of...copyrighted content...[if] you [are] actively searching it."
• YouTube's founders are said to have uploaded copyrighted content themselves and would joke about it. At times, they would caution each other about these activities, but Chen in particular was aggressive about growing the site at all costs. "Steal it!" he wrote. "[W]e need to attract traffic...[T]he only reason why our traffic surged was due to a video of this type." 
• In a so-called "smoking gun," Karim warns YouTube's board that the company "would benefit from preemptively removing content that is blatantly illegal." 

The motion then describes Google's knowledge and intent concerning infringement on YouTube. Revealed details include:

• The troubles of the company's own Google Video site and an internal discussion among its executives "about whether we should relax enforcement of our copyright policies in an effort to stimulate growth." 
• A conclusion before Google bought the company that YouTube is "a 'rogue enabler' of content theft," "completely sustained by pirated content," and "a video Grokster." Much of these conclusions were confirmed by a study that Google commissioned Credit Suisse to do.
• Failed negotiations between Google and Viacom prior to the purchase of YouTube to license content. As a result of the failed deal, it's claimed that "Google and YouTube withdrew their offer to use fingerprint technology to protect Viacom's content."
• Comments by Google senior vp Jonathan Rosenberg who had told a colleague that the "lesson" from YouTube was to "play faster and looser and be aggressive until either a court says 'no' or a deal gets struck." 

The brief positions Google/YouTube as "not just innocent and unwitting accomplices to infringement perpetrated by YouTube users" but rather liable for infringement they intentionally made possible in the interest of growing the website."

Viacom argues that the Digital Millennium Copyright Act provides no safe harbor due to "actual knowledge" of infringing activity and cites Google/YouTube's reluctance to use abilities to "control such activity." Finally, Viacom argues that YouTube is more than a web-hosting service but rather predicated on the public performance of videos, much like a television station.

These are all pretty strong arguments. Viacom clearly wants to hang its adversary by the neck of their own mouths. We understand how the lengthy discovery proved fruitful and why Google wished to keep much of this under seal.

Will it win over the judge? Can Google convince the court that it has taken the needed steps to clean up the website? Here's Google's motion.