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|ViaCom Finds Smoking YouTube Gun|
Arstechnica has a fascinating analysis of court documents released yesterday in the Viacom vs Youtube lawsuit:
YouTube's founders hoped to build a massive user base as quickly as possible and then sell the site. "Our dirty little secret... is that we actually just want to sell out quickly," said Karim at one point. In an e-mail, Chen talked about “concentrat[ing] all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil.”
|"In response to YouTube co-founder Chad Hurley’s August 9, 2005 e-mail, YouTube co-founder Steve Chen stated: '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.'" |
"A month later, [YouTube manager Maryrose] Dunton told another senior YouTube employee in an instant message that 'the truth of the matter is probably 75-80 percent of our views come from copyrighted material.' She agreed with the other employee that YouTube has some 'good original content' but 'it’s just such a small percentage.'"
There is so much here to digest. For the first time, it sounds to me like Viacom has a serious chance of winning this suit.
|Viacom argues that the startup's strategy was, at its core, a decision to profit from copyright infringement. It doesn't matter whether YouTube showed ads on its video pages or not (for years, it did not, apparently concerned about just this issue); to Viacom, the entire business strategy was a way of profiting from infringement. |
Which given the emails released, that sounds true. Knowingly profiting from copyrighted materials invalidates the DMCA safe harbor provision. It sounds like they have YouTube cold. Game over.
|Knowingly profiting from copyrighted materials |
That's been the case for a long time, I have to agree that waiting for DMCA requests before removing content simply isn't good enough, 80% of pageviews being from pirated materials is FAR too much and clearly shows the current system of policing to be inadequate.
Google owns Youtube. Surely their attorney's knew this during their due diligence of Youtube prior to the purchase.
Now I'd like to see the government step in and start analyzing the thousands of DMCA complaints filed against Adsense. As if Google didn't know that Adsense was also being used as a conduit to make billions from copyright infringement. Its time to reign in these Google cowboys who know violating the law is profitable. Basically Google’s stock becomes a 25 dollar one once you stop them from profiting from theft.
Wow, that's pretty revealing..
I'm noticing Google PR staff posting on various media these days. Their main point - 'ViaCom hired people to upload copyrighted materials so that they could claim YouTube is hosting such materials.' Duh, so what?
Google is (purposely) missing the point - ViaCom had the right to upload copyrighted material to see what's happening with that and how YouTube's solutions work (or don't work).
>ViaCom hired people to upload copyrighted materials so that they could claim YouTube is hosting such materials.' Duh, so what?
That's an extremely important point. See, Google has specific legal responsibilities (basically, if a report of infringement is made, they have to address it in specific ways.) But the copyright holder has specific legal responsibilities also, specifically, the "duty [yes, that's the legal term. DUTY] to mitigate" its own loss.
That DUTY entails, at the very least, reporting copyright infringement so that it can be stopped. But it also requires that the copyright holder not actively participate in the alleged infringement. (It doesn't matter why the copyright holder was participating. That they were participating is the point. That gives them "unclean hands"--in other words, they should lose the right to prosecute that infringement, and in extreme cases, they can lose the right to enforce that copyright altogether.
The reason for this is obvious. If the copyright holder isn't concerned to reduce infringement, nobody else should be either. If the copyright holder isn't doing everything in his power to reduce infringement, why should anyone else do anything at all? It's basic equity.
|If the copyright holder isn't doing everything in his power to reduce infringement, why should anyone else do anything at all? It's basic equity. |
That logic is like saying that it's okay for a thief to come in to my house because I only had one lock on my front door and not fourteen.
I love "who knew what when?" cases! I doubt each side slandering each other in the public domain will affect the judge(s) decision(s) ... a "consultancy" position being touted at either Google or ViaCom Legal Dept would probably swing things better ;)
|That logic is like saying that it's okay for a thief to come in to my house because I only had one lock on my front door and not fourteen. |
You'd be surprised then to hear that a woman had her car theft claim turned down because she had not done "everything within her power" to avoid the theft. Apparently the claims manager suggested disconnecting the battery at night ...
... there is no black and white in the law. And as for internet laws - forget it! Cross your fingers that the judge actually owns a computer ...
>That logic is like saying that it's okay for a thief to come in to my house because I only had one lock on my front door and not fourteen.
No, it's like saying "It's not theft if you GAVE the swag to him and helped him carry it out to his car."
Actually, in this case you borrowed his car, under false pretences, stashed your own stuff in his trunk deliberately to frame him--and then sued him for theft.
ViaCom workers only uploaded a TINY percent of all stored videos to prove their point that 79% of other copyrighted videos are not being dealt with by YouTube.
So many things have not even be mentioned in the documents (and I read most of them, from both sides).
1) How comes that EVEN TODAY I can easily find music "videos" on Youtube that consist of nothing more than an album cover and the song in HiFi quality? Are these "video" clips covered by existing agreements between rights holders and Youtube?
2) How comes that EVEN TODAY I can easily find long episodes (>45 min.) neatly broken up in 10-minute-chunks, correctly labeled "part 1/6", "part 2/6", and so on? Are these video clips covered by existing agreements between rights holders and Youtube?
3) How comes that EVEN TODAY I can easily find movie and TV clips, music videos, news, and the like? Are these video clips covered by existing agreements between rights holders and Youtube?
That is one part of the argument. "Premium content" is still a big part of Youtube today, and it's not that difficult to find.
The other part is the ongoing whining of those who defend Youtube and Google claiming that Youtube/Google could not possibly monitor what is being or has been uploaded. I say it until the cows come home: THIS IS NONSENSE.
Sure, Youtube/Google can not monitor their content PROFITABLY. So I'd say their entire process and business model is bad. Why? Well, they could have opted for a rigorous ID system prior to the first upload of a user. Demand a copy of the passport, a printed and signed standard agreement, sent in to Youtube/Google by snail mail, verified by a snail mail from Google with a unique code which would activate your account. And when someone complains about infringement, Google would point in your direction.
Of course, you know and I know that nobody would have signed up for such a service. And thus nobody would have used the service, let alone for uploading infringing content. Consequently, there wouldn't have been the traffic. No acquisition. And so Youtube would've been just another failed startup. BUT WAIT - THIS IS NOT WHAT HAPPENED.
The Youtube founders made the strategical decision to concentrate all of their efforts in building up their numbers as aggressively as they could "through whatever tactics, however evil".* And to sell off quickly. Google knew for a long time what they were buying (starting at a time when their product team was being asked - why is Youtube so much better?).
Finally - is there a reason why Google left Youtube on their own, i.e. as "Youtube LLC", operating in San Bruno, CA? Blogger.com, for example, has been fully integrated into Google. Could it be that Google -in case of a ruling in favor of Viacom- simply drops Youtube? And they prepared for this by not integrating Youtube into Google?
*These were their words. Isn't it funny that they were bought by the "don't be evil" company?
> That's an extremely important point.
Where does Google present evidence of that? Heresay is just that...
Im a HUGE fan of DMCA then a website owner has a chance to remove a itme, before waisting time on legal stuff which is HUGE problem in the USA everybody sues everybody.
I will also say this, when one ask me to remove something I dont even need all whats asked in DMCA, when I see the logic to the case its removed within 2 hours, NEVER days. I think since we have DMCA we also have to act quick on a request.
|ViaCom hired people to upload copyrighted materials so that they could claim YouTube is hosting such materials |
That in itself is a pretty lame way to prove anything. They where authorized by the copyright holder, so Viacom had technichaly gave permission for the content to be there.
well there are also some copyright holders that places images online to later sue people for using them, in countries where there is no DMCA
last week, I watched a movie on YT. Yes, an entire movie, from 2008, not some jittery and hiss-filled classic from the 1940s. As others have said, you'll also find hi-quality songs and TV episodes on there. It resembles rapidshare more than anything else.
For google to clean that up would cost big bucks - money they've never been prepared to pay out. If Google wins this case, we might as well all shut up shop because theft would be legitimised, greed would really be Gecko-style good and the sheriffs would have been chased out of town.
>>>Surely their attorney's knew this during their due diligence of Youtube prior to the purchase.
Yes, some Google employees, including Sergey Brin were uncomfortable about the deal. The Mercury News in silicon valley broke the story a few days ago in this report titled, "Google Executives Called YouTube a Pirate Site [mercurynews.com]." Here is a quote:
|Revealing e-mails and other internal communications unsealed Thursday as part of a $1 billion lawsuit brought by Viacom show that many top Googlers — all the way up to co-founder Sergey Brin — were concerned about YouTube's copyright piracy problems and how they could reflect badly on Google's ethics. |
"As Sergey pointed out," Google executive David Eun wrote in a June 2006 e-mail circulated among top Google executives, "is changing a policy to increase traffic knowing beforehand that we'll profit from illegal downloads how we want to conduct our business? Is this Googley?"
The news report published this excerpt of an email between Google executives:
|"I can"t believe your recommending buying YouTube. Besides the ridiculous valuation they think they"re entitled to, they"re 80% illegal pirated content." |
"” A May 10, 2006, e-mail from Google Video business product manager Ethan Anderson to Google executive Patrick Walker
The Mercury News article also discusses the allegation by YouTube that Viacom hired 18 marketing companies to upload videos to YouTube, sometimes uploading them from Kinkos to mask the source of the videos. I wonder if any of those marketing companies are ones we are familiar with?
WOW! This has much more damning network effects then this lawsuit.
|"As Sergey pointed out," Google executive David Eun wrote in a June 2006 e-mail circulated among top Google executives, "is changing a policy to increase traffic knowing beforehand that we'll profit from illegal downloads how we want to conduct our business? Is this Googley?" |
I guess the answer was, 'YES!'
... Scary ...
It's funny - I am reading some old WebmasterWorld threads from 2006 on Youtube's approach to copyright prior to the Google acquisition). Great reading, especially incrediBILL's comments in this thread:
Wow, just wow.
And now, with all the hindsight we have today, from the way the Youtube founders emailed each other, statements like
|There are tons of America's Funniest Home Video shows clipped and a bunch of others, we ALL know it, Youtubes ALL knows it, and that fact alone means the safe harbor provision is already worthless and they can't officially claim the Sgt. Schultz defense "I KNOW NUTHINK! NUTHINK!" when it's on THEIR SERVERS. |
turned out to be 100% spot-on.
|Google owns Youtube. Surely their attorney's knew this during their due diligence of Youtube prior to the purchase. |
I sure hope that didn't weigh in on the decision to file this suit, if it did there is bias and that's not legal either.
Again, google didn't upload the content and users agreed not to upload copyright content while creating accounts. Last I checked I still get the speeding ticket when I speed on her majesty's highways. Perhaps there aren't enough police on youtube but its still the criminals who need arresting, not the officers.
From the article linked in the first post of this thread...
Are you completely kidding?
This fact is powerfully demonstrated by examining the countless errors that Viacom and many other content owners make in sending takedown notices to YouTube. YouTube routinely received takedown requests that were subsequently withdrawn after the media companies who sent them realized that their notices had been targeted to content that they themselves had uploaded or authorized.
These self-inflicted infringement claims led to counternotices from Viacom’s marketers, sheepish retractions from BayTSP, and even to the suspension of Viacom’s own authorized YouTube accounts for supposed copyright violations.
They got their own account suspended for violating their copyrights? LMAO... They confused the issue, didn't even know what was theirs and authorized or wrongly uploaded but now they want to complain about it because YouTube didn't know what was theirs and authorized and what wasn't either. They couldn't even keep their own s*** straight but expected someone else to?
Two wrongs don't make a right, but imo when combined with the correct number of attorneys and bureaucracy (less the protocols to manage the situation) they sure make an incredible large STUPID...
What an amazing cluster floral arrangement!
What's being pumped out now is PR by both sides of the issue and while we might get some "juicy" revelations, I doubt we are getting everything. This is one that should go to the court and testimony/evidence rendered under penalty of perjury.
Might be a bit more involved than we know at the moment. Yet, and this from a personal observation of YT before G purchased, there is no doubt copyright material was routinely offered. And, from that same observation point, there's no doubt copyright material continues to be routinely offered. However, G has muddled the presentation just a bit by having SOME copyright holders actively offering their intellectual property on YT for a cut of the advertising profits. How far back can they go? How can they explain the emails prior to the purchase? Have no doubt G has some pretty high priced lawyers on retainer. They will probably earn their retainer.
|Again, google didn't upload the content and users agreed not to upload copyright content while creating accounts. |
That doesn't matter.
The fact that they knew their service was full of copyrighted material and they allowed it to stay there until a DMCA notice came means they were accomplices aiding and abetting in the act of the infringement.
It's no different than harboring a known criminal in your home where you have specific knowledge that person did the crime, you're still aiding and abetting the criminal.
Hence the term "safe harbor":
|A safe harbor is a provision of a statute or a regulation that reduces or eliminates a party's liability under the law, on the condition that the party performed its actions in good faith. Legislators include safe-harbor provisions to protect legitimate or excusable violations. An example of safe harbor is performance of a Phase I Environmental Site Assessment by a property purchaser: thus effecting due diligence and a "safe harbor" outcome if future contamination is found caused by a prior owner. |
Using that example Google could've claimed "safe harbor" when they first purchased Youtube from the prior owner.
Unfortunately, not only didn't they clean it up, they allowed the problem to persist.
Bad news for Google because those emails might allow Viacom to bypass the Youtube LLC corporate shell and go directly to the deep pockets of Google.
Google's entire argument about not being able to control what users upload is flawed. When was the last time you came across adult content on Youtube?
They are rightly very pro-active about getting rid of x-rated content, so clearly Google do have a way of screening, they just choose not to go be quite as aggressive regarding the content that will make them money.
|Unfortunately, not only didn't they clean it up, they allowed the problem to persist. |
Yeah, IMO the fact they knew about it, Brin raised concerns about it, and they not only went through with the deal, but they also allowed the content to stay knowing it was there and where the traffic came from says quite a bit about what they're willing to compromise to make a buck...
Also, good point Mack.
Not only did they know about it, that was the YouTube founders business model. The whole goal was to pump up page views by any means necessary. Therefore, their intent was to directly profit from pirated material. Therefore - safe harbor does not apply. They were not "hosts" they were a distribution facility. One email even says that one of the founders was intentionally uploading pirated material.
|"In a July 19, 2005 e-mail to YouTube co-founders Chad Hurley and Jawed Karim, YouTube co-founder Steve Chen wrote: '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.'" |
That sure reads like an admission of quilt to me.
a) their biz model was to make money off the sale of the site
b) they enhanced their value by increasing page views with highly desireable pirated content
c) founders were directly involved in posting pirated copyrighted material
game, set, and match.
[edited by: Brett_Tabke at 3:50 am (utc) on Mar 22, 2010]
Look at the court docs. Google knew it was a pirate site. Brin said it was a pirate site and Google would make money on the ads. Don't be evil? Be evil and get rich.
Viacom however also looks bad; they uploaded thousands of hours of their own material onto Youtube, using some 22 third-party agencies so it couldn't be tracked back to them. Viacom, the copyright holder, was ACTIVELY participating in copyright theft. Incredible.
Everyone involved in this deal knew the real story.
It will be interesting to see if Google can back up the claims of 3rd party involvement or if that was 3rd parties doing tests. If Viacom were going to do a licensing deal with Google, they certainly had the right to test the waters.
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