Viacom (s VIA.B) has been allowed to withdraw some 250 of the more than 60,000 video clips it’s suing YouTube (s GOOG) over for copyright infringement, including around 100 that were uploaded to YouTube by Viacom employees or agents, reports MediaPost based on a recently released court filing.
The move makes the Google-owned YouTube look good by showing that it takes more than just glancing at a clip to screen if it infringes copyright because it was an unauthorized upload. That’s exactly how YouTube is trying to defend itself for hosting the tens of thousands of Daily Show and other copyrighted Viacom clips back when the lawsuit was filed in 2007. Viacom claims that YouTube should know when clips are infringing and remove them, but the withdrawn clips show that even Viacom itself doesn’t always know when clips are infringing. A Google lawyer wrote in a letter to U.S. District Court Judge Louis Stanton,
“Perhaps better than any other evidence, this series of events belies Viacom’s assertion that ‘knowing that a clip is infringing is easy given the readily identifiable nature of Viacom’s movies and television programs.”
However, Judge Stanton seemingly allowed Viacom to make the clips disappear from the case without consequence. He declined to grant Google partial judgment alongside the withdrawal of the 250 clips.
It’s long been common practice for content creators to upload their work to YouTube in the hopes it will go viral; for instance, we wrote last year about writers for Jimmy Kimmel Live posting clips before ABC had a deal with YouTube. Viacom has also made a big deal in the case about whether or not YouTube employees uploaded copyrighted videos to the site themselves to help it grow an audience.
Update: We obtained Viacom’s letter to Judge Stanton, which suggests Google was trying to set up a “trap” or a “blank check” by identifying the clips which had been included in error.
“As we will show when we move
for summary judgment, Defendants’ massive infringement was intentional. Given the massive scope of their infringement, Defendants can hardly be heard to complain that in responding to
discovery requests, Viacom included roughly 250 clips (0.39% of the total) that it later withdrew.”
Earlier this month YouTube lost a separate copyright case in Italy, though it may appeal.