Google vs. Viacom: The Summary Judgment Chronicles

I’d like to welcome my friend Jonathan Bailey as today’s guest poster. Jonathan is a copyright and plagiarism consultant. He is the CEO of CopyByte, a copyright and plagiarism consulting firm, and writes the copyright blog Plagiarism Today, where he helps content creators license, track and protect their works.

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Though we all know that the ‘Colbert Report’ is a great show, what is less known is that it is also playing a key role in shaping the future of the Internet, especially for sites like YouTube.

It was in March 2007, almost exactly three years ago today, that Viacom, the parent company of Comedy Central and the ‘Colbert Report’, sued Google over its then-recently-acquired site YouTube. According to Viacom at the time, users had uploaded more than 160,000 clips of their content and those clips had received some 1.5 billion views.

Since the ‘Colbert Report’, along with ‘The Daily Show’, are among Viacom’s most popular shows with YouTube uploaders, it’s easy to imagine that the ‘Colbert Report’ was at the forefront of Viacom’s executives’ minds then they filed suit and remains there today.

However, yesterday this lawsuit took another major step forward as both sides moved for summary judgment and, as part of that, much of the submitted evidence was made available to the public for the first time. This has shed new light on the case and has also revealed some very embarrassing information about both sides.

With a case that is this potentially important to the future of the Internet, it is worthwhile to take a moment and understand how it got to where it is today and what it could mean. So here is a brief rundown of the case so far, what was revealed yesterday and where we go from here.

The Backstory

In March 2007 Viacom, after a lengthy period of threatening Google (both publicly and privately) and sending Google countless takedown notices, Viacom filed suit against Google for $1 billion in damages.

According to Viacom, YouTube had hosted and was hosting hundreds of thousands of clips of Viacom-owned content without their permission. Most of the accusations dealt with the “early days” of YouTube, before the site had been purchased by Google in late 2006.

Google, however, did not deny that there was infringing content on YouTube (though it has claimed some were likely fair uses), but rather said that they were legally protected under the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA provides protection or “safe harbor” for sites that host content at the direction of others, preventing them from being held liable for infringements that take place on their service that was perpetrated by its users.

Viacom, however, believes that the safe harbor protection does not apply in YouTube’s case. The reason is several of YouTube’s actions may have eroded that protection including the fact YouTube earns revenue from the videos (the DMCA forbids sites from “financial benefit” from an infringed work that’s uploaded) and that, again according to Viacom, YouTube employees were aware of infringing material and failed to remove the works, also a violation of the law.

Google has denied this and the case has slowly worked its way through the courts over the past few years, finally coming to something of a potential head yesterday.

The Latest News

For much of the case, the two sides have been locked in a lengthy discovery process where both parties are required to give evidence relevant to the case. Following that, the judge recently set a deadline of March 5, 2010 for filings of summary judgment, which is where one or both sides petition the judge to decide the case based solely upon facts not in dispute, thus preventing the case from ever reaching a full trial.

Both sides filed motions of summary judgment before the deadline and, as part of those petitions, filed what is known as “statements of fact” where both sides lay out elements of the case they claim there is no dispute in order to make a case that the matter should be resolved without a trial. Those documents were unsealed yesterday and. along with them, much of the information that had been submitted into evidence during discovery and then sealed.

However it becomes very clear looking at the two documents that both sides paint a very different picture of the case and the facts at hand.

Viacom’s Filing

To support Viacom’s argument that the DMCA does not apply, the company highlighted dozens of examples of emails where YouTube employees, present and present, were talking about copyright. This includes an email from one of the co-founders to the other two that accuses one of the trio of uploading infringing material themselves. The email says, “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

Other YouTube emails provided by Viacom included those from Google executives during the period they were looking to buy the site. Many expressed concern for the amount of the infringing content on YouTube, including one who employee that performed a survey of the site and found that some 80 percent of the content was infringing.

Still other emails were from YouTube employees who at times even joked about the amount of infringing material on the site and made sarcastic comments about flagging everything though no actual action was taken.

Nearly all of Viacom’s accusations come from the pre-Google era, hinting that, when Google took ownership of YouTube, they made major changes to the site’s approach to copyright. However, according to Viacom, YouTube is still liable for those early days and much of the $1.65 billion dollars paid for ownership of the company are ill-gotten gains.

Google’s Filing

Predictably, Google paints a very different picture of the situation and focuses more on the failings of Viacom.

One example is Viacom’s recent withdrawal of hundreds of videos from the suit after it was discovered that they were clips uploaded by Viacom employees themselves. This is part of what YouTube calls “stealth marketing” where the company has uploaded thousands of clips to different user accounts under names and email addresses not connected to Viacom.

According to YouTube, Viacom has gone so far as to send employees to Kinko’s to upload clips to YouTube just to be sure that the IP addresses could not be connected with the company.

Google also says that Viacom, at one point, looked to buy YouTube as recently as seven months before the lawsuit.

In short, where Viacom tries to paint YouTube as a site that flouted copyright to build traffic and then sell itself for over a billion dollars, YouTube paints Viacom as a jilted suitor who used the site for promotion and then tried to turn around and sue it for infringement, even though Viacom itself can’t be sure which clips are infringing.

It’s a classic case of he said/she said but one without a clear victor.

What the Law Says

Both sides come out of this reveal looking pretty rough, however, it is very difficult to say how the law will apply to this case.

The reason is that the DMCA was passed in 1998, long before sites like YouTube were around. Furthermore, much of the language in the law is inherently vague and many of the questions (including if advertising around infringing works removes safe harbor protection) are largely unanswered.

There has been one especially relevant case, the Universal v. Veoh case, which found that the now-defunct video sharing site Veoh qualified for safe harbor protection.

However, the Veoh case was in a different circuit than the YouTube one, meaning the judge in the YouTube case is free to ignore it (issues where circuits have differing opinions are common in copyright law). More to the point though, the Veoh case was very fact-specific and there were no allegations of Veoh employees uploading videos, etc.

Simply put, the facts and the court are very different in the YouTube case and that could change the outcome.

What’s Next

What’s next for the case is that both sides will have until April 30 to file oppositions to the motions for summary judgment and, hopefully, all the evidence collection and pre-trial wrangling will be over by June.

Then the judge in the case will have to decide which facts are relevant to the case and how those facts fit with the law. If the judge rules that there is no issue worthy of being tried, he will then issue a summary judgment in the case without it heading to a trial. If the judge decides there are issues that need to be resolved in a trial, then he will likely set a trial date for some time later this year.

No matter the outcome or the method by which the case is decided in this court, it is almost a certainty that the other side will appeal, opening up the probability that this case will drag on for years to come.

Bottom Line

It’s very hard to say who comes out ahead in this exchange of documents. Both sides have had a great deal of embarrassing information come out and neither of them look that great because of it. With many of the elements of the case centering in murky legal waters, it remains to be seen who will come out on top.

However, no matter who wins, this case is very likely to set much of the tone for similar ones in the future and that, in turn, could alter the course of the Web in very significant ways.

Just as the DMCA played a major role in trying to update copyright law for the age of the Internet, this case could be what updates the DMCA for the age of YouTube and social media.

The outcome will definitely be one to watch.