Google honks Segway horn back at Viacom

'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. ®