Google asks court to dismiss Viacom suit

Floats 'safe harbour' defence

By OUT-LAW.COM, 3rd May 2007

Google has said it will defend itself against a $1bn lawsuit filed by media conglomerate Viacom and has asked a judge to throw the case out without a full trial.

Viacom is suing Google for copyright infringement over the posting of video clips on YouTube, which is owned by Google. Viacom owns television stations MTV, Comedy Central, and Nickelodeon and says in its suit that YouTube's business is built on copyright infringement.

Viacom filed the lawsuit in March and Google has just lodged its response. The search giant has demanded that the case be dismissed without a trial.

Google's defence rests on the "safe harbour" provisions of the Digital Millennium Copyright Act, which protect a company from liability for copyright infringement if it is just the medium by which others post unlawful content.

The safe harbour rules protect a company as long as it takes down offending material "expeditiously" when it is notified about it. Google takes down infringing material from YouTube when contacted by copyright owners.

In its filing, Google says removing that protection would be disastrous for many internet companies. "By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression," the filing said.

Google's managing counsel for litigation told the New York Times newspaper that it had not discussed a settlement with Viacom and was not likely to. "We feel pretty confident about the case and are ready to take it to court," he said.

The case makes similar claims to a European newspaper case taken by Belgian trade body Copiepresse. Both cases allege that Google profits from making use of copyright material without permission as a matter of course, only taking material down when asked on a specific basis.

Both Copiepresse and Viacom believe the company should be made to ask permission ahead of using material and not wait to be told to stop after the fact. Copiepresse recently won a case in a Belgian court relating to the Google News service.

Viacom has said it believes that safe harbour protection is not available to YouTube, and that the site does not qualify for that protection. It says the company has knowledge of infringing material on its site and is profiting from it.

Content owners have called for YouTube and other sites on which copyrighted material is posted to develop filters to weed out copyright-protected content. Google has said in recent weeks that it has developed tools to help copyright owners to identify their material so that they can request that it be taken off of the site.

OUT-LAW.COM is part of international law firm Pinsent Masons.

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Posted Thursday 3rd May 2007 13:37 GMT

Ian Michael Gumby

Two different cases dealing with two different issues.

There are two different cases. One deals with Google itself taking and making available copyrighted material without its permission and selling its own ad space on those articles.

The second case deals with users of a service provided by Google that allows them to post copyrighted material, which Google when notified needs to have the material removed.

The first deals with the issue of Google knowingly posting copyrighted material. A simple test would be if the Belgian newspaper embeds a copyright tag. Then Google should have known that it was copyrighted as it scanded and cached the article.

The second deals with Google allowing the material to be posted, then only removing the material when faced with a complaint. The only problem is that as soon as one poster's upload is removed, another one is posted.

The simple fact that google could ban a user from posting if he/she posts copyrighted material (by user id, MAC address or IP address),it would reduce the number of posters who are putting up copyrighted material. There are also other things that Google could do as well.

If it were Microsoft doing this, I'm sure the public would be reacting differently.