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Summary:

Court filings in the three-year old copyright infringement suit between Viacom and YouTube have finally been made public, which should make some interesting reading and take over the rest of my afternoon. But in the meantime, YouTube Chief Counsel Zahavah Levine has written a pretty damning […]

Court filings in the three-year old copyright infringement suit between Viacom and YouTube have finally been made public, which should make some interesting reading and take over the rest of my afternoon. But in the meantime, YouTube Chief Counsel Zahavah Levine has written a pretty damning post on the YouTube blog, condemning Viacom for having its employees pose as normal users to upload promotional content to the video-sharing site.

Asking for a summary judgment in the case, YouTube argues that it should be protected by safe harbor provisions in the Digital Millennium Copyright Act (DMCA), which state that Internet hosts should not be found liable for content that is uploaded to their sites, so long as they respond to takedown notices issued by copyright owners within a reasonable period of time. In the blog post, Levine writes that the DMCA “recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service.”

Viacom might believe otherwise, arguing that YouTube should have done a better job of keeping copyrighted material off the site. But Levine argues that even if YouTube were tasked with doing so, Viacom’s actions would have made policing its content impossible. YouTube accuses Viacom of uploading its own content, and doing so in a way that made it difficult for YouTube to distinguish between its employees and common users. If true, the accusation is pretty damning. Levine writes:

“Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users.

The results were so effective, Levin writes, that Viacom couldn’t tell if a piece of content was uploaded by its employees or not, which resulted in Viacom demanding that some clips be taken down — and then later asking for them to be reinstated. “Given Viacom’s own actions,” Levine writes, “there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site.”

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