Opening salvos by both sides in the Viacom-Google copyright lawsuit make both Viacom and Google look sleazy. But YouTube comes out worse, with Viacom painting a picture of the video company as having a business model built on bootlegging.
In court papers unsealed last week in the $1 billion lawsuit between Viacom and YouTube, Viacom makes a case that YouTube deliberately profited from 62,637 Viacom clips watched more than 507 million times on YouTube; that Google was aware of the copyright infringement problems when it purchased YouTube in 2006, and that YouTube's own founders were involved in uploading unauthorized materials, according to Ars Technica. "Smoking guns, dark secrets aplenty in YouTube-Viacom filings".
If true, this is a big deal, and potentially catastrophic for Google. It's one thing to have an open platform, and accept a certain amount of bootlegging as the price of that freedom. It's quite another to do as Viacom says YouTube and Google did, and willfully build a business based on facilitating bootlegging.
But before jumping to conclusions against Google and YouTube, keep in mind that Viacom is telling only one side of the story here. It's easy to go through megabytes of other people's e-mail and cherry-pick quotes that make the other guy look awful. Piece together a few off-the-cuff remarks made in the heat of passion and forgotten when better judgment returns, add in a few tongue-in-cheek comments never meant to be taken seriously, and you can easily make your opponent look like a villain and scoundrel. It may turn out that's what Viacom is doing here.
Ars Technica quotes from e-mails obtained from YouTube:
"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. Were going to have a tough time defending the fact that were not liable for the copyrighted material on the site because we didnt put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.'" "Chen twice wrote that 80 percent of user traffic depended on pirated videos. He opposed removing infringing videos on the ground that 'if you remove the potential copyright infringements... site traffic and virality will drop to maybe 20 percent of what it is.'....
The basic argument here is a simple one. 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.
That's important because the Digital Millennium Copyright Act protects service providers that engage in "storage at the direction of the user." It has been a huge boon to user-generated content sites, and it is YouTube's key defense. But the DMCA puts limits on the generous safe harbors it provides: operators cannot have actual knowledge of infringement, they must take down infringing materials when asked, and they cannot profit from the infringement.
Viacom makes a powerful case against YouTube. But YouTube scores some points of its own. For more about that, read my next blog post: "Viacom-YouTube lawsuit: The case against Viacom"