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iFilm Infringement Could Blunt Viacom's YouTube Argument

Zonk posted about 7 years ago | from the throwing-stones-glass-houses-you-know-the-drill dept.

The Internet 119

Radio Silence writes "Infringing videos on iFilm could undermine Viacom's case against YouTube. Although it's arguably not a nest of infringement like YouTube, iFilm appears to host more than a handful of videos for which its corporate parent Viacom does not own the copyright. More importantly, Viacom isn't engaging in the kind of proactive infringement identification practices it expects of YouTube, which may cause problems for them in court. 'if Viacom isn't willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case. "It would have some persuasive value with a judge if YouTube says 'look, they're ranting and raving about all this infringement occurring on my site and they're not doing anything about it themselves,'" said copyright attorney Greg Gabriel.'"

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119 comments

p0wned (0, Offtopic)

Anonymous Coward | about 7 years ago | (#18416137)

Ha ha. Viacom just got p0wned.

Skeletons (2, Insightful)

MintyGreenMedia (513510) | about 7 years ago | (#18416159)

Does it really surprise anyone that Viacom has skeletons in its own closet?

Re:Skeletons (3, Insightful)

Seumas (6865) | about 7 years ago | (#18416341)

I don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrights, they would do so. This isn't about right and wrong or philosophical points. It's about money. Viacom makes money by preserving their copyrights. So they prosecute infringements. Youtube makes money by violating copyrights. So they justify infringements or at least try damn hard to excuse them.

Re:Skeletons (5, Insightful)

Nwallins (1059978) | about 7 years ago | (#18416869)

But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us.
Interesting form of judgement you've developed there...

Re:Skeletons (1)

Mateo_LeFou (859634) | about 7 years ago | (#18417101)

This is very much about right and wrong. It is wrong to try to prevent competition from people who have analyzed the market and the technological situation better than you have. It is wrong to pretend that something (creative output) is property in order to can prevent this competition. It is wrong to pretend that something (unauthorized copying) is theft in order to prevent this competition. It is wrong to pretend that a technology control measure (the DMCA) is a copyright protection law in order to prevent this competition. And so on and so on.

Re:Skeletons (1)

poot_rootbeer (188613) | about 7 years ago | (#18421259)

It is wrong to pretend that something (creative output) is property

And yet, this "wrong" has been part of the law for hundreds of years. How do you justify your stance when confronted with centuries of common and civil law precedent?

Re:Skeletons (1)

Mateo_LeFou (859634) | about 7 years ago | (#18422373)

It was wrong the whole time, but while it was (relatively) expensive to distribute tangible expressions of novel, it was the lesser of two evils. Pretty straightforward.

The fact that copyright was an unfortunately necessary compromise was obvious to the writers of the Constitution, e.g. TJ.

Re:Skeletons (0)

Anonymous Coward | about 7 years ago | (#18417223)

So by your description, someone who has money is automatically evil while someone who has no money is automatically good. I fail to see how someone who doesn't have two nickels to rub together is working for "us" while someone with money is working against "us." I don't think the logic train made a stop at Seumas Central.

Re:Skeletons (0, Troll)

kbro (792022) | about 7 years ago | (#18417261)

@seumas

Sounds like having money makes you undeserving?
If we go by that logic, I bet you are very deserving indeed!

Re:Skeletons (2, Insightful)

arevos (659374) | about 7 years ago | (#18417451)

don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrights, they would do so. This isn't about right and wrong or philosophical points. It's about money.

The case also may set an important legal precedent, and I suspect that's why most people are interested in the case, because it's likely that the result of this decision will later affect smaller content hosting companies and individuals.

Re:Skeletons (5, Interesting)

Anonymous Coward | about 7 years ago | (#18417581)

Youtube makes money by violating copyrights.

Incorrect. YouTube makes money by providing users with a medium of information exchange. YouTube does not violate the copyrights, the users who upload copyrighted content do.

YouTube is further protected from claims of copyright violation by the safe harbor laws of the DMCA. They honor all takedown notices, even when there is doubt. So, they actively obey the letter of the law, and as such do not violate copyright.

"Violate copyright" is a legal term, not a moral term. Legally, they are not guilty of this, as the courts will demonstrate.

Whether or not you think it is morally wrong for them to allow their users to upload copyrighted content is an entirely different issue, of course, though I am sure you and I would disagree on that one too.

Re:Skeletons (0, Offtopic)

notasheep (220779) | about 7 years ago | (#18418189)

I find your argument interesting in that you probably wouldn't want it extended to other types of businesses. For example, we hold bars accountable if they serve alcohol to patrons who appear to already be intoxicated - they can't turn the other way and keep serving to people because if they do they are liable for what that patron might do. Another example: Imagine there's a business next door to your house that is set up to allow people to exchange (or share) drugs - not likely, but this is an example. A legal use for this could be people exchanging/sharing aspirin for cold medicine. If it was known that a good number of that businesses patrons were exchanging heroin for cocaine I doubt you would accept their position of "We set up this environment, but if laws are broken it isn't our responsibility...it's up to you." You would probably expect them to set up some process to ensure illegal activities aren't taking place. You wouldn't expect the process to be 100% effective, but you would expect some sort of efficacy.

Again, I know my example is a little bit of a stretch, but where do we draw the line on culpability?

Re:Skeletons (1, Insightful)

Anonymous Coward | about 7 years ago | (#18418409)

But do we hold bars responsible of other people give drinks to obviously intoxicated people? If the bartender refuses to server Patron A because they are drunk but Patron B goes and gets one for A, is the bartender responsible?

Re:Skeletons (2, Insightful)

SquareVoid (973740) | about 7 years ago | (#18418523)

That is a stupid analogy. Try this one: Do you expect to hold FedEx or UPS accountable for the delivery of drugs to people's houses?

Re:Skeletons (1)

AvitarX (172628) | about 7 years ago | (#18419119)

For example, we hold bars accountable if they serve alcohol to patrons who appear to already be intoxicated

I wish they wouldn't (actually they don't). I walk to the bar and have drinken plenty their and not once have I been turned down. In fact in many states the bartender is not liable for damages (for good reason).

Another example: Imagine there's a business next door to your house that is set up to allow people to exchange (or share) drugs

There are specific laws against this (crack house laws we can call them) while what youtube.com does is specifically alloud (DMCA). And if the only crime being commited was the exchange of drugs I wouldn't personally have a problem with it (it is the loan sharking, petty theft and other crimes associated that cause the trouble).

Re:Skeletons (3, Insightful)

poot_rootbeer (188613) | about 7 years ago | (#18421339)

we hold bars accountable if they serve alcohol to patrons who appear to already be intoxicated

And what we DON'T do is require bartenders to administer a breathalyzer test to every person who places a drink order, which is what Viacom is saying YouTube should have been doing.

Re:Skeletons (1)

Ash Vince (602485) | about 7 years ago | (#18422555)

As an ex bartender I can say most of us were fairly careful about not serving people who look like they have already had enough to drink - Nobody likes cleaning up puke.

Re:Skeletons (1)

reidconti (219106) | about 7 years ago | (#18417815)

Why do I care who started YouTube or who owns it? Is it written somewhere in the emo-hipster code that I can only root for the little guy? I'll root for whomever I want to, whether it is the little guy, or a massively rich corporation. Similarly, if I think you're an asshole, I don't take into account your annual income.

Re:Skeletons (1)

loganrapp (975327) | about 7 years ago | (#18417879)

How does YouTube hurt you by existing? Without it, the few gems we do have - Ask A Ninja, Mr. Deity, Lonelygirl15, LisaNova - would still be in obscurity. LisaNova got a gig on MadTV due to her popularity on YouTube.

As with any medium, you're wading through bullshit. How is it any different from TV? The good:bad ratio is pretty much the same.

Re:Skeletons (0)

Anonymous Coward | about 7 years ago | (#18419309)

ask a ninja is stupid, lonelygirl15 was a corporate shill. I've never heard of the others, so they're still in obscurity as far as I'm concerned.

Re:Skeletons (2, Insightful)

RexRhino (769423) | about 7 years ago | (#18418751)

The morality of an action has nothing to do with the intent. If someone thinks they are helping you by kicking you in the head, they are still doing you harm. And if they think they are harming you by curing a disease, they are still doing good.

In this case, YouTube might be acting to maximize its profits, but the way it is doing so benifits the rest of us. Society is benifited by having a place where it can freely exchange video, and it would be harmed by effectively criminalizing such a service. Therefore Youtube is right, and Viacom is wrong, despite the fact that both are simply trying to make money.

do (3, Insightful)

gEvil (beta) (945888) | about 7 years ago | (#18416161)

Do as I say, not as I do...

Re:do (4, Insightful)

TubeSteak (669689) | about 7 years ago | (#18416411)

FTFA:

Viacom responded with the following statement: "Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site." A search using the term "NBA Brawl," however, returns a number of clips of televised footage of both NBA and college football fights and it is not clear that Viacom owns the copyrights on those clips
Wow... what damning evidence of Viacom's infringement.

In fact, it looks a lot like what one would find on YouTube.
Right Ars, a small fraction of YouTube involves sports brawls.
Now show me on iFilm where I can watch a season of [TV show].
If Ars can't do that, they're just being asinine.

ATTN: SWITCHEURS! (-1, Offtopic)

Anonymous Coward | about 7 years ago | (#18416711)

If you don't know what Cmd-Shift-1 and Cmd-Shift-2 are for, GTFO.
If you think Firefox is a decent Mac application, GTFO.
If you're still looking for the "maximize" button, GTFO.
If you don't know Clarus from Carl Sagan, GTFO.

Bandwagon jumpers are not welcome among real Mac users [atspace.com]. Keep your filthy PC fingers to yourself.

Here's a phrase you art fags might want to learn (-1, Troll)

Anonymous Coward | about 7 years ago | (#18417273)

"You want fries with that?"

When you and your tranny friends graduate art "college," this is something that will help you survive in the real world far more than any "mad skillz" you might have with a computing platform universally ignored by all real businesses.

Of course, if those "girls" get their adam's apples shaved down, they might be able to make a $20 here and there giving head.

You should have my head full of useless facts (1)

way2trivial (601132) | about 7 years ago | (#18418033)

shemales for hire make the most in the sex for cash industries....

We want a source... (0)

Anonymous Coward | about 7 years ago | (#18418141)

not personal anecdotes.

Re:do (1)

spun (1352) | about 7 years ago | (#18417345)

How do you figure? The way I see it, it's not about what's on the sight, it's about the procedures used to determine what goes on the site. If Viacom is asking Youtube to do something that they themselves are unwilling to do, it absolutely will have an impact on the trial. Viacom is claiming they are screening, yet there is proof that their screening is not working.

Re:do (2, Insightful)

Red Flayer (890720) | about 7 years ago | (#18417797)

Right Ars, a small fraction of YouTube involves sports brawls.
Now show me on iFilm where I can watch a season of [TV show].
If Ars can't do that, they're just being asinine.

Why? Substantive infringement is substantive infringement, regardless of scope.

And as for a small fraction of iFilm video being copyrighted sports brawls, it's only a small fraction of Youtube that's a full season of copyrighted television shows.

In a civil suit such as this, Viacom definitely has a problem if it can be demonstrated that they do not take the kind of precautions they are demanding of the competitor they are suing.

Re:do (4, Funny)

Fordiman (689627) | about 7 years ago | (#18417959)

Where on YouTube can I watch a season of [TV show]?

'cos seriously, I've been using this bit torrent thing, and it's just too damned much trouble. All this uncut high quality fullscreen video scares me. Give me five hundered blurry ten-minute clips in a tiny little subscreen any day; that I understand.

Re:do (1)

saleenS281 (859657) | about 7 years ago | (#18419133)

So what you're saying is it's ok as long as I only do it a *little bit*? How about if youtube only has funny clips from TV shows? How long can they be, 5 minutes? 10 minutes? What if it's the entire show except for the first and last 2 minutes, is that ok?

I hate to break it to you but this is an all or nothing thing. The defense of "well our infringement isn't quite as bad" doesn't work.

Re:do (1)

ENIGMAwastaken (932558) | about 7 years ago | (#18422489)

Is it some tenet of copyright law that it's only infringement if it's an entire series of a show or an entire record or something like that? If iFilm hosts as much as a single piece of copyrighted data without permission, they are guilty of copyright infringement. That's what it means.

Re:do (3, Interesting)

crankyspice (63953) | about 7 years ago | (#18416421)

I imagine Viacom is seeking injunctive relief against YouTube (i.e., "don't do that anymore, that's an order!"), which is an equitable remedy. One of the main tenants of equity is "he who seeks equity must do equity," that is, you have to show up with "clean hands." Could be interesting.

Re:do (0, Offtopic)

ArsonSmith (13997) | about 7 years ago | (#18416593)

But your honor, if I was speeding then the cop had to speed to catch me and pull me over. You should let me off and charge him!!!!

Re:do (1)

wolff000 (447340) | about 7 years ago | (#18416865)

This is a civil case! Your analogy using a speeder is worthless. I am not surprised Viacom has infringed other people's copyright. Any user submitted video site is going to unless you could afford thousands of people to relentlessly research every submission. Even then stuff is going to slip by. The only reason Youtube is a target is because Google has deep pockets. If this was Joe Blow running something out of his basement and not making a dime there would be a fraction of the lawsuits. As usual it is all about the benjamins.

Re:do (1)

voice_of_all_reason (926702) | about 7 years ago | (#18417701)

Your analogy using a speeder is worthless

Pointing out the law may not apply to "some animals more equal than others" is not worthless. It breeds contempt for the law.

Re:do (1)

Fordiman (689627) | about 7 years ago | (#18418099)

Actually, he was making the distinction between civil and criminal offenses. Infringement is a civil offense (no matter how much content owners would like to call it theft), and as a result doesn't fall under criminal laws and rules. For injunctive relief - what Viacom is asking for - you need to show up with 'clean hands', ie: you need to not be doing what your asking to stop the other party from doing.

Re:do (1)

UbuntuDupe (970646) | about 7 years ago | (#18418209)

I find it interesting that, unlike how your parents might have raised you, in the legal world, "he started it!" and "everybody does it!" mix together to form the valid legal defense called estoppel [wikipedia.org].

I dont see this as an issue... (0, Redundant)

Kenja (541830) | about 7 years ago | (#18416165)

I've never been impressed with the "they did it too!" defense. All this realy means is that other peole can in turn sue Viacom under the same terms that they're suing Google.

Re:I dont see this as an issue... (5, Insightful)

FasterthanaWatch (778779) | about 7 years ago | (#18416243)

Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.

Re:I dont see this as an issue... (2, Insightful)

TubeSteak (669689) | about 7 years ago | (#18417453)

Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.
Maybe you're not aware that YouTube already filters uploads, but only for licensees.
http://www.google.com/search?q=youtube+license+fil tering [google.com]

As I've said before, even though I think Viacom is on the wrong side of the DMCA, the fact that YouTube can and does filter may cause Viacom to win some of its civil claims.

Re:I dont see this as an issue... (4, Insightful)

omeomi (675045) | about 7 years ago | (#18416265)

That would be true if they were suing for something that was obviously illegal in the first place. However, it's important because they're trying to argue that something ambiguously legal is actually illegal. The DMCA has a provision that indemnifies companies like Google from lawsuits if users upload copyrighted material. All they're required to do is take it down once they've been notified, which they have been doing. Viacom is arguing that they shouldn't have to police YouTube, and that Google should be pre-screening content. What they're essentially saying is that the "Safe Haven" clause of the DMCA is not legal. But if they're doing the exact same thing, it makes it much harder to argue.

Re:I dont see this as an issue... (5, Interesting)

Anonymous Coward | about 7 years ago | (#18416285)

Your argument would be true if there was some law that would require YouTube to install filters. However, Viacom is asking a court to order GooTube to do this as a matter of public policy. When making considerations about public policy, judges would probably be persuaded by the argument that if it's too burdensome for the plaintiff to do it, why should the defendant do it when there's no law mandating it?

Re:I dont see this as an issue... (0)

Anonymous Coward | about 7 years ago | (#18419105)

When making considerations about public policy, judges would probably be persuaded by the argument that if it's too burdensome for the plaintiff to do it, why should the defendant do it when there's no law mandating it?
Maybe because the defendant (GooTube) already has the ability to filter?

Re:I dont see this as an issue... (3, Insightful)

Jah-Wren Ryel (80510) | about 7 years ago | (#18416351)

I've never been impressed with the "they did it too!" defense.

Good thing you are not the courts then. Because, "they did it too" is one of the primary defenses against assault with a deadly weapon -- if some guy is punching you in the face, then you have justification to hit back with anything you've got. If he was just standing there, doing nothing, then you've got no justification to assault him.

Re:I dont see this as an issue... (1)

cdrudge (68377) | about 7 years ago | (#18416469)

There is a significant difference though. In the case when someone is assulting you, there is an expectation that you should be able to defend yourself and any type of assult done in defense would be justifed. With ViaCom/Google, if ViaCom is being "assulted" by Google, it doesn't mean that ViaCom can turn around and "assult" someone else. Your example would be better if ViaCom started to share Google-owned videos. But even then both companies would be found to be violating the other's copyright as neither infringement would be justified.

Re:I dont see this as an issue... (0, Flamebait)

Jah-Wren Ryel (80510) | about 7 years ago | (#18416559)

Thank you Captain Obvious.

Next time the original poster wishes to make a nuanced argument, he should post it instead of resorting to generalized one-liners.

Re:I dont see this as an issue... (1)

EvanED (569694) | about 7 years ago | (#18417435)

In addition to what my sibling poster said, the reason you can act in self defense is because in so doing you prevent injury to yourself. Viacom, by infringing copyright, is not preventing the injury that YouTube is supposedly doing to it, so it wouldn't be justified under the self defense doctrine.

Apart from that, it's also the case that the self defense doctrine, at least in the US, is explicitly spelled out in the statutes. There isn't any similar affirmative defense for copyright infringement.

Re:I dont see this as an issue... (1)

larkost (79011) | about 7 years ago | (#18417785)

To further on what has been said, you also should keep in mind that the law in most districts only allows for a proportionate response as self defense. If someone slaps you you are not justified in taking out a gun and shooting them (and self defense rules don't apply). In a not-so-extreme version: if someone about your size is hitting you with their fists, you are not justified in using a lethal weapon (knife, broken bottle, etc...).

There are lots of funny rules about what the different levels are, and there is a lot of special-case situations (black belts in martial arts have to be very careful about what they do, the training often counts as a lethal weapon and is an excuse to call it premeditated).

Re:I dont see this as an issue... (1)

maddskillz (207500) | about 7 years ago | (#18416357)

It also means, if they win, the are setting good precedence for the people who want to sue them

IANAL, but.. (1)

openaddy (852404) | about 7 years ago | (#18416193)

Viacom is suing YouTube for infringing on Viacom's copyright. Viacom is not infringing on its own rights on iFilm. If other people aren't happy w/ iFilm's infringing contents, let them sue Viacom. Two wrongs don't make a right.

Re:IANAL, but.. (1)

Phil246 (803464) | about 7 years ago | (#18416639)

...except that the videos this article is on about, are those for which viacom does not hold the copyright.
Not the ones that it does

Re:IANAL, but.. (4, Informative)

MsGeek (162936) | about 7 years ago | (#18416967)

IANAL either, but this is the doctrine of unclean hands [lectlaw.com]. It can be used to get the YouTube case laughed out of court. Which it should. Viacom is expecting YouTube to do something Viacom does not do itself on its own, similar website. Buh-bye, Mr. Redstone.

Re:IANAL, but.. (1)

webrunner (108849) | about 7 years ago | (#18417749)

Particularly since I believe the wording here involves making 'reasonable' attempts to make sure you dont have anything infringing, and with this to light, Viacom cannot claim that what they want is reasonable.

Re:IANAL, but.. (2, Informative)

Petey_Alchemist (711672) | about 7 years ago | (#18417905)

Not exactly. However, it goes to underscore the unreasonability of Viacom's request, and to further illustrate the fact that even the most stringent procedures in this arena will let stuff through. I'm telling you, though, that under Grokster and Sony Viacom doesn't have a chance to win.

Re:IANAL, but.. (0)

Anonymous Coward | about 7 years ago | (#18418247)

I could be wrong, but I don't think "unclean hands" applies here. That doctrine only applies to equitable relief - so an injunction (to force youtube to stop posting copyrighted material) may count, but your usual tort lawsuit for money isn't the same situation. It will certainly look bad to the court, but it won't be a foolproof affirmative defense.

Theres just one issue I have with that argument (1)

deft (253558) | about 7 years ago | (#18416197)

I believe the law takes things case by case.

The judge should see if the first has a case, and tell the other "if you want them to do the same thing, you need to sue them".

If I hit someones car with mine, and then they hit my car, I can certainly file a claim. If they want damages, they need to file back. They can't just say "we both hit eachother so theres no claim at all". Sure the damages might be equal, but most likely not... for instance, comparing YouTube to Ifilm are not equal at all in infringement. The article aknowledges YouTube has many more infringing content.

Re:Theres just one issue I have with that argument (2, Informative)

Dorceon (928997) | about 7 years ago | (#18416765)

The key thing here is Judicial Estoppel. Anything Viacom says in court in their case against YouTube, they cannot contradict when they are the defendant in someone else's suit against Ifilm.

one could argue (0)

Anonymous Coward | about 7 years ago | (#18416211)


being that Viacom has a competing business (ifilm) that its not about enforcing copyright but crushing competition

I'm confused (1)

phoenixwade (997892) | about 7 years ago | (#18416223)

Is it reall a valid argument to say "See, the guys that are suing us for breaking the law are breaking the law too?" Doesn't that make both of them guilty, rather than let You Tube off the hook? Personally I think the whole suit thing is more than a little bogus, but it doesn't make sense to me that this argument hold true...

Re:I'm confused (2, Insightful)

chalkyj (927554) | about 7 years ago | (#18416335)

YouTube can, however, say "What you're asking for is unreasonable. Sure, you claim it's reasonable, but you're not even willing to do it on your own site and yet you expect us to?" - which does seem to be a valid argument.

Re:I'm confused (4, Informative)

j00r0m4nc3r (959816) | about 7 years ago | (#18416427)

I think it's more like, "Your honor, the industry standard is to not self-police your sites. It's a public site and people can upload copyrighted material. All Viacom has to do is tell us which items are infringing and we can remove them. See, even Viacom doesn't self-police themselves on iFilm..."
There's sort of a fine line between the two...

Re:I'm confused (1)

Fordiman (689627) | about 7 years ago | (#18418211)

Nothing to see here, folks. Just another dude who doesn't know the difference between civil and criminal law.

wisful thinking (0, Flamebait)

Jah Shaka (562375) | about 7 years ago | (#18416227)

the law is the law and you cant jack other peoples stuff... just because someone else is doing it. someone else can sue viacom is all it means and the lawsuit will set the price google is screwing everyone wiht content out there just because the pOwn search - it will be good for them to get whats coming to them i cant wait for my quantum computing laptop so i can host the web on my own and control my own searchwithout having to see all those fricking addwords

This just in... (3, Funny)

rizzo320 (911761) | about 7 years ago | (#18416299)

iFilm has been purchased by Google, and is now being sued for $1 billion by Viacom. Film at 11... (oh wait its copyrighted by Viacom, never mind!).

I don't agree (2, Insightful)

hey! (33014) | about 7 years ago | (#18416327)

I'm not sure the judge will or should accept a tu quoque ("you're one too") argument. If A steal's B's car, and B steal's C's car, A is not off the hook for car theft.

I think more to the point is the question of when Viacom became aware of YouTube, and what steps they took when they found out. Even if Google is found guilty of violating DMCA, if Viacom didn't take reasonable looking steps (e.g. using DMCA takedowns), Viacom is going to have a hard time arguing astronomical damages.

I'm not saying Viacom has to defend its IP to keep its rights. I'm saying that if their actions look like they weren't all that concerned, it makes the notion they lost a billion dollars worth of revenue a bit hard to swallow. If Viacom was issuing takedowns like made, and just couldn't keep up with the new postings, it might be credible.

Re:I don't agree (1)

Spamalope (91802) | about 7 years ago | (#18416443)

Competition. Viacom's Ifilm property has less of the market, and hopes to block popular activity on Gootube while allowing that same activity on Ifilm to boost market share. That strengthens the arguement a bit.

I'm not sure the judge will or should accept a tu quoque ("you're one too")

Re:I don't agree (0)

Anonymous Coward | about 7 years ago | (#18416853)

"If A steal's B's car, and B steal's C's car, A is not off the hook for car theft."

Wouldn't it be more like "A steal's B's car so A sues GM for not providing better locks on the car"?

No! A would have to make cars with the same locks as GM for that to be the same.

How about "B and C both have lots where people can give away their cars. A steal's B's car and gives it away on C's lot. B sues C for allowing this to happen even though D stole E's car and gave it away on B's lot."?

I don't the analogy.

Re:I don't agree (1)

elrous0 (869638) | about 7 years ago | (#18417053)

The "Nuh uh! He did it too!" defense usually only works if the judge is an 10-year-old boy.

Re:I don't agree (4, Interesting)

gurps_npc (621217) | about 7 years ago | (#18417819)

Your claim is not fair.

The argument is not "You're one too".

Instead it is:

This is a new technology. What is legal and illegal has not yet been clearly declared.

You yourself are doing the same activity that you are claiming is illegal.

If you REALLY thought it was illegal, you would not do it yourself.

You are just trying to get us to stop competeing against your own legal actions, not actually claiming we are breaking the law.

Re:I don't agree (1)

terrymr (316118) | about 7 years ago | (#18418129)

Equitable relief requires that you come before the court with clean hands.

Remember the napster case when an argument broke out over who's hands were the dirtiest ?

Re:I don't agree (2, Insightful)

gnuASM (825066) | about 7 years ago | (#18418451)

I'm not sure the judge will or should accept a tu quoque ("you're one too") argument.

Although the fact that Viacom's iFilm also has others' copyrighted material on it, there are other ways of using that information in court. Google could use this information to strengthen their position of the safe harbor provisions by pointing out the "fact" that Viacom currently uses such provisions on its own competing service. I very seriously doubt that Viacom would admit on record that it intentionally violated another's copyright, as this could be used in criminal charges against Viacom, could it not?

And, if Viacom claimed that the presence of such material on their service was not known to them, and that their policy would be to remove it when the fact of infringement has been verified, then Google could use the same argument in the court that they uphold similar policies and that Viacom did not utilize due diligence in notifying Google/YouTube of the existence of such material on their service.

I'm not saying Viacom has to defend its IP to keep its rights.

I believe my above statement touches upon this. Google is protected under the safe harbor provisions provided that they do three things. The safe harbor requirements are and provisions, not or provisions. Thus, Google/YouTube must meet all three requirements of the safe harbor provision to be protected. These provisions are:

`(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

`(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

`(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

`(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

`(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

C. if Viacom did not issue a take down notice, then Google/YouTube has met with the DMCA requirements and Viacom did not conduct due diligence in protecting its IP under the safe harbor provisions of the DMCA. If Viacom did send the takedown and it met with the requirements in paragraph 3 of section 512, then Google is doomed.

A. if Viacom, again, did not send a take down notice, then Google is in the clear through their non-policing policy, thus they would not be aware of such activity without due diligence on behalf of the copyright owner.

Here is where Viacom is evidently making its claim:

B. Google/YouTube has in fact received financial gain through its service. I believe that this fact will not be disputed. However, the provision requires that the service provider must have the right to control the infringement (which they do). This may be defended, however, by the lack of due diligence of Viacom with regards to provision A. But, there is a second AND requirement to fall outside the safe harbor provision. The service provider must also have the ability to control the infringing activity. Because of Google's policies of non-policing the users' uploads, Google/YouTube is reliant upon Viacom's due diligence in policing it's own copyrighted works. The DMCA already contains the legal provisions for a rights holder to protect and police its works. However, again, Viacom seems to show a lack of due diligence.

I believe this is where the case will ride: whether or not an OSP is required to police its users' activities. As far as I know, the DMCA only requires logging of the users' activities, but there is no provision requiring the policing of its users. Without this requirement in the written law, I think Viacom will have a hard time landmarking this kind of legislative decision through the courts.

But, then again, this is the USA, and any kind of BS is possible within our government.

Unclean hands is well-settled law. (0)

Anonymous Coward | about 7 years ago | (#18419051)

> I'm not sure the judge will or should accept a tu quoque ("you're one too") argument. If A steal's B's car, and B steal's C's car, A is not off the hook for car theft.

Err, "steals" isn't possessive (i.e. drop the apostrophe).

Anyhow, for one, no one is stealing anything. The users might be infringing upon copyrights, but the site owners are complying with the DMCA's Safe Harbor provisions and taking it down when properly notified.

Furthermore, because the letter of the law says this is legal conduct, the only theory upon which it can be judged illegal is by common law. In other words, matters of equity (fairness). So we have on one hand Viacom saying "this conduct is unfair!" even while they engage in it like hypocrites. Thus, the legal doctrine of "unclean hands" may well apply. While you might see that as an illogical "tu quoque" argument, "unclean hands" is a valid legal principle and the hypocrisy of their complaint may very well work against Viacom.

After all, I know that were I on a jury, I wouldn't demand that YouTube put in expensive controls that were highly unlikely to actually work when the company complaining about their refusal had also refused to do the exact same thing.

That's not the argument (0)

Anonymous Coward | about 7 years ago | (#18420317)

The argument is that what Google is doing is legal under DMCA. If Viacom want to say that Google are required to do MORE than the law then what IS "acceptable" for the plaintiff? Whatever Viacom would do in the same situation (which they are with IFilm).

PS Isn't iFilm trademarked by Apple's i$word trademark?

It would be better (2, Informative)

teflaime (738532) | about 7 years ago | (#18416423)

if YouTube could say, "We take proactive steps to limit infringment, and respond within our stated guidelines to complaints of infringement. Viacom does neither." YouTube could be seen as coming up short on the limit side...They do, however, as far as I can tell, jerk videos pretty quickly upon a claim of infringement.

Re:It would be better (1)

Achromatic1978 (916097) | about 7 years ago | (#18419993)

Problem is, iFilm also lets you report videos and cleans them up accordingly. So neither part of that hypothetical statement can really be applied.

So what are they really after? (1)

jusDfaqs (997794) | about 7 years ago | (#18416611)

Citing the $1.65 billion that Google paid for YouTube, the complaint said that "YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value." The complaint was filed in United States District Court in New York. The lawsuit is the clearest sign yet of the tension between Google and major media companies. With its acquisition of YouTube, Google had high hopes of becoming a central distribution point for online video, dominating the field just as Apple's iTunes Store leads the market for digital music.

Shouldn't this be against the two that created YouTube? Seems all of the parties involved are violating another patent by having websites period

United States Patent 7191189
Abstract:
A method or apparatus of organizing data in a storage device includes receiving data in the storage device, and transforming the received data into a first data object. The first data object is stored in a hierarchical data structure, the hierarchical data structure containing plural levels of data objects.
http://www.freepatentsonline.com/7191189.html [freepatentsonline.com]
Viacom should get over the fact that Google bought YouTube and think of another way to strangle the masses for a buck.!

irrelevant (1, Redundant)

superwiz (655733) | about 7 years ago | (#18416697)

You can be both a "thief" and a victim of "theft". I am not saying that YouTube is engaging in theft. I am simply saying that the fact that Viacom is engaging in behavior more egregeous than the one of which it is accusing YouTube does not in any way change the fact of whether or not YouTube is stealing or even harming Viacom. Just so we are clear, harming someone who is harming someone else is still harmful and unlawful.

Re:irrelevant (1)

iainl (136759) | about 7 years ago | (#18417341)

The argument is not "look Viacom break the law too", but rather "What we're doing is a reasonable level of policing to meet DMCA requirements. Let's take another popular video hosting site to compare. See, same policing, same failure to catch every single one. Oh, look, it's owned by Viacom, and so we suggest that they themselves consider the attempts reasonable there".

So it's not so much two wrongs making a right, but an argument that neither is a wrong in the first place.

Boggles the mind (1)

Billosaur (927319) | about 7 years ago | (#18416739)

Being someone who uses neither YouTube or iFilm for his viewing pleasure, it amazes me how much consternation the idea of copyright infringement causes in the marketplace. Remember the VCR? That was supposed to spell doom for television -- people would now tape their favorite shows and watch them endlessly, and wouldn't watch re-runs on TV. Duh!!! It then dawned on the networks that this could be turned to their advantage, because fans of shows would gladly buy merchandise, special video mixes, and eventually DVDs of their favorite shows.

Now everyone's up in arms over copyright infringement on the Internet. They need to get with the program. If you don't want people posting these things to YouTube/iFilms, then post it yourself! Make it easily accessible and readily available. Charge a subscription and then over subscribers video clips from their shows they've never seen, or short video pieces that were made for the Internet. And get over it! Once you're product goes out into the market, that's it. You can scream "copyright infringement" all you like, but people are going to record, copy, and share your material whether you like it or not. So find a way to cash or shut up.

Re:Boggles the mind (1)

Todd Knarr (15451) | about 7 years ago | (#18420005)

Because it's not piracy that's the threat to the RIAA/MPAA. It's legitimate electronic distribution.

Yes, I said legitimate.

With VHS tapes and DVDs, you need a big checkbook to finance physical duplication and packaging. You need connections to retailers to have shelf space for the product. You need a big operation to move physical objects from the duplication plant to the retail outlets, and to warehouse them while awaiting distribution. You need conventional advertisement and PR to get consumers to notice the product. That's where the labels come in. They don't produce the material, they just provide the conduit to get it from the people who do create it to the people who want to buy it (while taking a nice hefty cut of the profit in the process).

Electronic distribution over the Internet simply destroys that niche. You need absolutely nothing to make as many copies of a data file as you need. Setting up a Web site and on-line store is easy and relatively cheap (at least compared to physical outlets) and there's companies that specialize in doing it for you. Google and other on-line resources make it easy to get yourself noticed by people who might be interested in your product. So, if I'm an artist producing music and I'm doing legitimate on-line distribution myself, exactly why again do I need to give 95% of my revenue to a label? That is what has the labels terrified of on-line distribution, and why they seem to go out of their way to make even legitimate distribution as cumbersome and unusable as possible: because legitimate on-line distribution is a lethal threat to their business model.

That's also why the RIAA's first target way back when wasn't the pirate FTP sites. It was MyMP3.com, the only site in operation that made any attempt to limit downloads to people who already had legitimate copies.

If Google bites, it's good for Viacom... (1)

Excelcia (906188) | about 7 years ago | (#18416809)

While this is embarassing for Viacom, the unfortunate (for Google) reality is that if Google bites on this and points it out, it's bad for Google.

Google's big defense right now is the safe harbour provisions in the DMCA. Their legal argument is, they aren't required to put in safeguards so they can't be held liable for not doing so. If they, in some motion brief, go and point out that Viacom isn't safeguarding and how hypocritical that is, then Viacom in their reply can say "Oooops, you know, you're right, we're not, our bad, we're sorry, we'll pay reparations. And now, Google, since you've agreed it's a bad thing we've both done, you can pay reparations to us for your infraction too".

Re:If Google bites, it's good for Viacom... (1)

rhizome (115711) | about 7 years ago | (#18417087)

then Viacom in their reply can say "Oooops, you know, you're right, we're not, our bad, we're sorry, we'll pay reparations. And now, Google, since you've agreed it's a bad thing we've both done, you can pay reparations to us for your infraction too".

How is it bad for Google if they point out that iFilm became compliant in a way that Viacom did not allow YouTube?

Re:If Google bites, it's good for Viacom... (4, Insightful)

Overzeetop (214511) | about 7 years ago | (#18417663)

Actually, this can still be played in favor of Google.

Rather than pointing out that "Viacom is breaking the law, too," they will note that Viacom, via iFilm, is also practicing the industry standard which relys upon the safe harbor provisions of the DMCA. Even if iFilm changes its stance, Google can point out that they were all operating under the same expectation of safe harbor, and the Viacom has only recently changed their policies in order to try and unilaterally change the industry standards. The damage is done. iFilm can try and change their operating procedure, but it can be made to look like a political move by a good defense team.

One wonders why, but only for a short time. (5, Interesting)

The-Bus (138060) | about 7 years ago | (#18416915)

I always wonder why companies rail against this "pirating" on YouTube which is predy ridiculous since YouTube is not and, in its current format, will never be a replacement for mass-market television. The problem is that if YouTube gets away with it, so can others. So they have to squash YouTube infringers, even if it's not really a threat.

The media companies themselves aren't stupid. Look at the All-Time Most Viewed on YouTube [youtube.com]. We've got OK! Go (a band signed with Capitol Records/EMI, an RIAA member), Nike, SNL (NBC), My Chemical Romance (a band with Reprise, a Warner Bros. label, also an RIAA member). Record labels are on it, production companies/ film studios, and a heck of a lot of networks. Here's a short list of partners [youtube.com].

YouTube (and sites like it) should be treated a bit different than the Napster of old. It holds a lof of other advantages over "old piracy", all of which is extremely useful to owners of the copyright:
  • Not a worthwhile copy of the real thing. YouTube (as it is now) could never replicate seeing a movie in theatres, or on DVD, or even on cable. The quality is acceptable enough for its free price, but that's about it. Unlike pirated software copies or (to most people) MP3s, this is not a true "copy" of the product you sell.
  • Tracking, tracking, tracking. YouTube collects age and sex information. I don't know if they record this for each video being viewed, but what if CBS suddenly learned that one of its shows seemed extremely popular with females over 50? Let's say it was a show they didn't expect to fit that demographic (like the military drama The Unit). Maybe this will help them sell more advertising.
  • YouTube is soft DRM. It's easier to distribute a link to a file on YouTube than it is to distribute the file itself.


There's a lot more to this, of course. But networks (finally!) aren't being total idiots. As far as I know, the three major networks (ABC, CBS, NBC) all let you stream shows for free through their sites. Other networks may be doing the same thing (to some extent, Cartoon Network's Adult Swim, Comedy Central, and the Sci-Fi channel do this). I don't think YouTube is the be-all and end-all in matters of online media. I'm speaking alot about them just because they're referenced in the article and they're the 'Video_blog Portal 2.0' (or whatever) that I'm most familiar with.

It gives me some hope that user response seems about as positive as Napster and the media conglomerate's response has been a hell of a lot more tempered; consumers get content for free, media creators/owners/distributors lose less control. Sure, crazy DRM schemes still pop-up, but this gives me hope that we're progressing positively. I'll take non-intrusive DRM as long as it does no harm and I get content for less (or free), not for the same price or more.

Again... (2, Funny)

fluch (126140) | about 7 years ago | (#18417387)

...all are equal, just some are more equal than others. At least a variant of it. :)

The real reason for the suit (1, Interesting)

Anonymous Coward | about 7 years ago | (#18417651)

Viacom's iFilm is a direct competetitor to Google's YouTube. And I thought Microsoft was evil! This is a case of a company suing its competetitor for legal ("safe harbor") standard industry practices that they use themselves. Pretty damned sleazy. Worse than Microsoft (not as bad as Sony, at least they didn't root my box!)

Unlike most here, I read the above comments and must say that most of you guys are so full of crap it's coming out of your ears. I'm getting pretty damned tired of hearing copyright infringement referred to as "thieft". It is NOT thieft; not in the US, any way. The idea of "intellectual property" is, in the US, unconstitutional [cornell.edu] (Article 2 section 8). Nobody owns a creative work, not even its creator. You own NOTHING. What you posess (not "own") is is a limited time monopoly on copying, NOT the work itself. I do not own the song I just wrote this morning, I only own the right to copy it.

Intellectual "property" is a damned lie. It is not property in any sense of the word.

Unauthorized reproduction of a copyright work is illegal, but it is not theift any more than smoking pot is thieft (unless you stole the dope). Shoplifting a CD is thieft; posting it to Kazaa is not.

The (foreign owned) multinational corporations like Sony and Viacom want you to believe that freedom is slavery and war is peace. Orwell's 25 years late. Smile, you're on corporate-sponsored candid CCTV camera! Big corporation is watching you! And you fucking morons defend the evil Satan-worshiping sons of bitches. WTF is wrong with you????

This lawsuit doesn't matter (1)

tooslickvan (1061814) | about 7 years ago | (#18419065)

This lawsuit will not set any legal precedent because it will be settled out of court. Why? Because it's simply a negotiation tactic by Viacom to get more from Google. The other content companies have already signed revenue sharing agreements; Viacom wants the same but more with more money. Viacom thinks that this lawsuit a way to convince Google that YouTube needs to pay more.

Re:This lawsuit doesn't matter (1)

Todd Knarr (15451) | about 7 years ago | (#18419627)

Except that it may backfire on Viacom. One of the things Google/YouTube depend on to control legal exposure is the DMCA's safe-harbor provision. By attacking that directly, Viacom may force Google to conclude it can't afford not to fight simply to insure it retains that protection. And it's not necessarily just about YouTube, any weakening of the safe-harbor protection impacts almost all of Google's other business. Google may decide this is one fight they can't afford not to fight, and they've surely got the money to do it.

And then there's the iFilm matter. That also weighs into it, and may make Google more confident that they can win.

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