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Summary:

The release of court filings in the three-year old copyright infringement suit between Viacom and YouTube has opened a whole new can of worms. To grow, Viacom says that YouTube’s founders and later executives at Google turned a blind eye to copyrighted material.

With the release of court filings in the three-year old copyright infringement suit between Viacom and YouTube, we’ve seen the video share site argue that it is not liable for infringing videos uploaded to its site, as it claims protection under the safe harbor provision of the Digital Milennium Copyright Act (DMCA).

But in Viacom’s filing for a partial summary judgment, it makes the case that the site’s founders — and later executives of acquirer Google — turned a blind eye to copyrighted material in an effort to drastically grow the site’s user base. And since YouTube’s founders were aware of infringement and chose to do nothing about it, Viacom argues that the company is liable under the Supreme Court’s Grokster decision, which found that a site operating with the intent of infringing should not be protected by the DMCA.

Using internal emails that were passed between YouTube founders Chad Hurley, Steve Chen, and Jawed Karim, Viacom paints the picture of YouTube as a young company whose leaders were willing to grow its user base at any cost. For instance, the filing states that Chen urged his associates in one email to “concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil.” The comment notably contrasts with future purchaser Google’s “don’t be evil” mantra — but more importantly, that attitude set the stage for a number of decisions that the YouTube founders made to grow at the expense of rights holders that it was infringing on.

YouTube didn’t always ignore the sensitive copyright issue. At one point during the summer of 2005, for instance, the site’s founders removed “some of the most obvious infringing video from YouTube to give the impression of copyright compliance,” the Viacom filing claims. However, they also chose to leave a good deal of infringing content up, believing that enabling users to search for less high-profile content was worth the risk. According to the filing, Chen wrote in an email, “That way, the perception is that we are concerned about this type of material and we’re actively monitoring it. [But the] actual removal of this content will be in varying degrees. That way . . . you can find truckloads of . . . copyrighted content . . . [if] you [are] actively searching for it.”

And at one point, YouTube founder Jawed Karim even uploaded infringing content to the site himself, which drew some criticism from Chen. In an email, Chen acknowledged, “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.”

But for the most part, Viacom argues that the founders mainly did nothing about the copyright issue, even though internally they knew it was driving a large portion of their traffic. In an email exchange between the founders, Chen estimated that 80 percent of the site’s traffic was driven by pirated videos, and opposed taking them down proactively because, “if you remove the potential copyright infringements . . . site traffic and virality will drop to maybe 20% of what it is.”

While Viacom tries to make the case that YouTube’s founders knew the extent of the infringement taking place and chose to do nothing about it, it argues that Google was also well aware of the site’s infringement issues at purchase. As part of Google’s due diligence into YouTube, financial advisor Credit Suisse analyzed the site’s content and estimated that more than 60 percent of video views appeared on premium content, but YouTube only had a license for about 10 percent of those videos, according to Viacom.

Furthermore, Viacom claims that Google not only acquired YouTube despite those problems, but it chose initially to take the same approach as YouTube’s founders by ignoring copyright issues. Rather than screen videos prior to putting them on the site, as Google had done with its own video site, Google Video, it allowed YouTube to continue operating without any pre-emptive enforcement policies in place.

All this, Viacom argues, suggests that YouTube and Google should not be protected by the DMCA. Like Grokster, the company argues, “Google and YouTube were not just innocent and unwitting accomplices to infringement perpetrated by YouTube users. Defendants operated YouTube with the unlawful objective of using infringing material to explosively build their user base and become the dominant video website on the Internet.”

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  1. Hi,

    It doesn’t need Viacom’s arguments.

    Those of us interested and involved in web-video back then remember some of the same policies and attitudes; Youtubes investors banked out within 20 months, it was always meant as a quick-flip (as was the “new web 2.0″ fashion then) as its actions and run-rate at the time indicated.

    Youtube didn’t come out of no where, there were many other similar sites then, but it was the most aggressive with the permissive culture and tools, and backed by a high-end VC, that also coincidentally had a board-seat on Google!

    Kind regards,

    Shakir Razak

  2. YouTube seems to be the biggest entertainment site in the world. But the copyright infringement is the biggest issue in entertainment world. Youtube should always abide by the copyrights.

    Congrats to Viacom.

  3. George Riddick Thursday, March 18, 2010

    Dear Ryan,

    Forget this civil case for a moment. PLEASE.

    Are you familiar with the criminal statutes of this country as they relate to willful copyright infringement?

    If just a small fraction of your reporting is true, how is it that ALL of these referenced YouTube co-founders and key employees are not behind bars … along with the entire executive team and Board of Directors of Google?

    The PRO IP Act of 2008 allocated money to put these kinds of people in jail. I will find out in my scheduled meetings up in D.C. in late March and April why the money given to the DOJ, Copyright Czar, and others is not being used as intended.

    How can anyone in this country expect for China, Russia, and Brazil to clean up their piracy acts when we turn our heads away from behavior such as this and allow piracy to turn three spoiled and obviously crooked teenagers into billionaires?

    I have never been as disgusted with anything in this country (Wall Street scandal included) in my entire life, and I’ve been at this technology game for over 30 years now.

    I think the honest business people and taxpayers of the United States of America deserve some answers … and NOW!

    What about you?

    George Riddick
    Chairman/CEO
    Imageline, Inc.

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  7. Michael Koby Friday, March 19, 2010

    There are a couple of questions at stake here. One is that of fair use. One could argue (and probably successfully) that uploading small 30-90 second clips of a 30 minute program might constitute fair use. You’re not uploading the entire show, only a piece that you found amusing, interesting, or informative.

    So with that in mind, one has to also ask, “what constitutes as infringement?”

    I mean if a small clip can’t be uploaded (and I will note that Viacom DID upload content to YouTube, they pulled it all off right before they sued), what can? Also, they use the Groakster ruling as a basis, but wasn’t the Groakster ruling about sharing music (ie complete songs/works)? So how does that fit into this case exactly since most clips on YouTube are around 1 minute and half in length?

    I think it’s funny that people are all like “Yay Viacom” but really, Viacom is trying to hold on to an old business model, and not adapting to a changing market.

    Also, U.S. Copyright law is seriously outdated and needs to be adjusted to account for new technologies.

  8. Without doubt youtube is the biggest video-sharing site.It should abide by the copyrights

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  10. why are so many people so woried about youtube and their”copyright infringements” when the whole purpous of a copyright is to keep people from PROFITING off of other people’s work, when NO money comes in from the video clips, which are apearently being infringed upon, ALL of the money that they make comes from the companies that PAY them hundreds of dolars for a small add to advertisethier product.
    So my question is, how is it wrong to use only PART of a finished “product” for free access to anyone who may be interested,out of all technicality youtube is advertising for the companies that make the full length videos (or finished “product.”)does anyone know how hard it is to find a full length video of any thing on youtube.
    maby people need to lay off they can’t help it that they make more money than everyone else!

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