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Proto- YouTube copyright suit lives on to darken another Google day

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You win some, you lose some - and sometimes simultaneously.

YouTube suffered a setback last week when a judge refused to grant it pre-trial judgment in the first copyright lawsuit directed against the video-sharing site, but it dodged a bullet when the judge also declined to grant the plaintiff's similar motion seeking to destroy YouTube's primary legal defense in the case.

And considering that YouTube has asserted the same defense in the Viacom infringement suit, that could have been one expensive bullet.

The plaintiff in the current case, Robert Tur, has, in addition to an award-winning career as a video journalist in Los Angeles, the dubious distinction of being the first person to sue YouTube for copyright infringement. Tur alleges that YouTube became liable for infringement after its users posted clips of Tur's well-known footage showing OJ Simpson's white Bronco ride, as well as Tur's shots of rioters during the Rodney King uproar bashing truck driver Reginald Denny on the head with a brick.

Both sides of the suit argued that the facts were so clearly on their side that they deserved early judgment. A federal district court judge in California disagreed, however, and struck down both parties' motions, holding that neither side had presented sufficient evidence to show that they were clearly entitled to victory.

Tur claimed that YouTube could not enjoy the protection of a Digital Millennium Copyright Act provision that protects websites from monetary liability for infringing activities by their users. Websites must meet some fairly rigid requirements to qualify for the DMCA protection, and Tur based his motion on the argument that, because YouTube displays banner ads during the playback of the allegedly infringing posts, it receives a direct financial benefit from the supposed infringement and cannot enjoy the DMCA's safe harbor.

The judge stated in her opinion that Tur had presented no evidence, despite numerous opportunities, showing that YouTube had the right and ability to control the allegedly infringing activity - a necessary prerequisite for a finding of a direct financial benefit.

Conversely, the judge also ruled that the evidence concerning YouTube's management of the material on its site was insufficiently developed for the court to make a determination that YouTube did not have the right and ability to control the allegedly infringing activity. Thus, the judge could not definitely declare that YouTube did in fact qualify for the DMCA safe harbor.

Now the litigation will shift into an evidence discovery phase, and YouTube has two main options: it can either make the discovery process nice and simple so it can battle over the legal points in court with little delay or expense . . . or it can make the discovery contentious, expensive and painful for the plaintiff in the hope that he will break and agree to a settlement whereby YouTube avoids anything even slightly resembling an admission of liability.

Taking the former approach would give YouTube a chance to iron out its legal strategies for fighting infringement suits; taking the latter approach would get rid of a relatively small lawsuit and allow YouTube to focus its legal resources on the 800-pound gorilla named Viacom that's sitting in a federal court in New York.

Either way, the fight now enters the second round. And either way, it's going to get bloody. ®

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