Google (NSDQ: GOOG) attorneys argue in the trove of documents unsealed in the long-running legal battle between YouTube and Viacom (NYSE: VIA) that while Viacom “now insists that YouTube is liable because it should have recognized that their content was not authorized, plaintiffs’ own actions defeat that claim.” Specifically, Google charges that Viacom not only “overtly and covertly” uploaded its own clips onto the site but also at one point tried to purchase it — negating its argument that the site was “some kind of ‘pirate’ site.” (The full PDF can be downloaded here; for a summary of Viacom’s arguments, see David Kaplan’s piece here)
— The secret trips to Kinko’s: Viacom uploaded “thousands” of its own clips to YouTube in order to market its content, using its own employees and as well as an “army of third-party marketing agents” to do so, Google says. In order not to be linked back to Viacom, the “agents” used YouTube usernames like MysticalGirl8, Demansr, GossipGirl40 and Snackboard. Viacom employees, meanwhile, went to non-company locations — like Kinko’s — to upload clips in order to avoid detection. Google says that “Viacom’s efforts to hide the source of the content it caused to be posted on YouTube were too good” and in fact some of the clips Viacom is now suing YouTube for hosting were actually uploaded by the company.
— Back turning: Viacom also purposefully decided not to take down “thousands upon thousands” of clips from the site, even when it would have been easy to do so, Google says. For instance, when at one point Viacom found 316 clips from South Park on the site, it decided to take down only one and “pass” on the others.
— Viacom tried to buy a “pirate” site: Google also says that while Viacom has described YouTube as a ‘pirate’ site, it in fact tried, unsuccessfully, to buy it in July 2006 because the company’s “best minds” decided that it would be a “transformative acquisition.” The company also tried to negotiate a content-partnership agreement with YouTube but was unable to do so.