Original URL: http://www.theregister.co.uk/2011/04/04/google_viacom_appeal_defence_filed/

Google honks Segway horn back at Viacom

Copyright law is terribly complicated – can't we just ignore it?

By Andrew Orlowski

Posted in Media, 4th April 2011 15:35 GMT

Copyright scofflaw Google and the creative industries are locking horns once again, in a billion dollar legal case with implications for what internet companies can and can't do – or at least, American internet companies. Essentially, the case boils down to how much a service provider is allowed to "know" about infringement before it becomes part of the problem, and therefore liable.

Viacom and a clutch of other companies including the Premier League, filed suits against YouTube in 2007, which Google had acquired the previous year. Nobody disputes that most of YouTube's content infringes copyright; it's there without a licence. Viacom asked for $1bn in damages, but a judge ruled last year that Google was shielded from liability under provisions in the Digital Millennium Copyright Act (DMCA), and had shown good faith by responding to takedown requests from Viacom.

Viacom is appealing, arguing the intent of Congress (and the letter of the law) in designing such shields was not to permit such wholesale infringement. Google's defence has just been published. But first, some background is useful.

In the 1990s, lawmakers around the world gave broad legal protection to internet service companies, who could argue that they weren't liable for damages from infringement that took place on their networks, or through their services. Politicians did this in the hope that the new businesses would grow and expand, and not be strangled at birth by costly litigation from fearful copyright holders. The policy makers did so in the expectation that creative industries and internet companies would strike a mutually beneficial arrangement, cash would rain down from heaven, and everyone would live happily ever after. The DMCA was the US Congress's attempt to strike some kind of balance.

A dozen years later, nobody would regard the way things have turned out as ideal. The internet has turned out to be a basket-case for revenue generation, with even the officially-blessed Hulu video site – co-owned by Disney, NBC and News International – bringing in a paltry $263m in revenue last year. And with very little money around, nobody is prepared to invest in innovative service delivery. Service providers and hosters (such as Google) hold fast to their get-out clauses, which they argue permit them to look the other way, and copyright holders focus on policing infringement rather than innovation. The results of the policing are often absurd, but without them precedents would be set for take-without-asking uses. Although creators' rights are upheld by international treaty – it is a basic human right – loosening the law in each state would turn each territory into a Pirate Utopia, so the rights would become meaningless.

Viacom's appeal focuses on three main points. The Act, it argues, obliges the provider to act on "actual" knowledge of infringement, rather than "red flag" (ie, specific takedown requests). The provider must not benefit financially from infringement, and it must limit itself to storing material at the user's direction only. You can see why it wants to shift from actual to general. While the DMCA gives a copyright-holder the power to take down a piece of material, they must make an individual request for each infringement – leading to a hugely costly burden. Individual filmmakers, for example, as we can see here, must play whack-a-mole with the YouTubes and other sites.

'Broadcast yourself...or um, someone else's copyrighted content...'

Viacom also contends that it is looking at YouTube's actions in the early days of the service, before and after its acquisition. When YouTube began life, it billed itself as a hoster of user-generated content service under the slogan 'Broadcast Yourself'. But it changed its policy in ways that made it more attractive to popular, copyright-infringing material. Co-founder Steve Chen described in emails how the company should "concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil".

The appeal filing is here (72-page PDF/285 KB) and the arguments summarised in reasonably plain English here (12-page PDF/569 KB) .

Viacom argues Google "intentionally blinded itself" to infringement and "intentionally facilitated" infringement, and only a narrow interpretation of the DMCA was applied by the Judge. It also wants the service provider to take greater responsibility, and not wait for individual DMCA requests. According to the lawyers, the safe harbour shield is not appropriate if the service provider profits from the infringement, or fails to act on specific instances, to name but two situations which the shield does not prevent. It argues that the Aimster case proved that "wilful blindness" to infringement taking place can "usually prove constructive knowledge, actual knowledge and criminal intent".

Nonsense, argues Google.

The Judge clearly rejected parallels with P2P cases, such as Grokster, it says. YouTube responded like a model citizen to takedown requests, it adds. The Court also believed that YouTube lacked "the right and ability to control" what was stored on its servers – a decision met with dismay (and disbelief) by rights-holders. It also maintains it didn't "directly" profit from hosting infringing material – even though it sold ads alongside the infringing clips.

For good measure, Google adds that Viacom only sued after it had failed to obtain a commercial deal with YouTube; and points out that while the case ran through the legal mill, Viacom employees were uploading clips of content to YouTube for promotional purposes. That's embarrassing for Viacom, but in legal terms, it is neither here nor there. A rights-holder is allowed to do anything with their legal bundle of rights – even put the material under a GPL licence, or dump it into the public domain... Because it's their stuff.

Interestingly, Google goes further, arguing that it shouldn't be burdened even by the "red flag" takedown requests.

"Congress crafted such a 'high bar for finding "red flag" knowledge' because it recognized that it is challenging for service providers to distinguish infringing and non-infringing material... No red flag exists, therefore, where circumstances leave uncertain whether the material is protected by copyright at all, or whether a particular use is licensed or, if unlicensed, a fair use," it said in its answer.

That wins the prize for brass neck, since "the law is horribly complicated, we should be allowed to take no responsibility at all". It's unlikely to get very far in court.

But with Judges, you never know.

More on the defence here, via The Hollywood Reporter. ®