Last year, Viacom (NYSE: VIA) appealed its loss in its copyright lawsuit against YouTube (NSDQ: GOOG), and the video-sharing site has now filed a reply (embedded below) to Viacom’s arguments. Many of the arguments in the 107-page brief repeat what was argued in the courts below, but it’s interesting to observe the tone set in the opening pages of the brief. YouTube takes its time before getting to the legal points, showing that it’s really a good corporate citizen of the internet.
The emphasis on YouTube’s social benefits is a probably a smart move. Viacom is trying to paint the early YouTube as another Grokster, a company eagerly piling up a mass of pirated content and then trying to “go legit.” In a technical sense, the amount of non-infringing content really shouldn’t matter that much. But in reality it does influence people’s thinking.
The brief takes time to note the positive and obviously socially beneficial uses of YouTube: videos include “raw video footage taken in war zones or during protests in foreign capitals… video messages sent by U.S. soldiers overseas to their families back home.” Governments, universities, non-profit organizations and celebrities all use YouTube to make themselves heard, the brief notes.
Those facts all give YouTube a certain legitimacy that other services — like the peer-to-peer file-sharing networks that have been shut down by courts — never had. As I asked in a previous story — would Barack Obama have used Grokster to share videos with his supporters?
Other interesting points the brief brings up:
YouTube says it’s gone above and beyond what the law requires in helping copyright owners police their content. That includes the creation of its own video-filtering technology which it installed in 2008. But YouTube says the installation of such technology is not a requirement to benefit from the “safe harbor” provided by the Digital Millennium Copyright Act, and implies that Viacom simply wants YouTube to install its preferred filtering technology, on its preferred timeline. Other courts (including in the UMG v. Veoh case) have rejected that approach, say YouTube lawyers.
— YouTube’s lawyers hit this point hard–even as Viacom was complaining about copyright violations, its own marketers were uploading clips to YouTube. YouTube’s lawyers start hitting this point on the second page of their brief and don’t let up. They note that even Viacom’s lawyers couldn’t always tell which clips were authorized marketing uploads and which weren’t. For example, one Paramount executive advised that clips being posted to YouTube “should definitely not be associated with the studio — should appear as if a fan created and posted it.”
— YouTube claims Viacom used misleading selective quotations to build its case. For example, Viacom quotes former YouTube CTO Steve Chen saying the company should “concentrate all of our efforts in building up our numbes as aggressively as we can through whatever tactics, however evil.” But YouTube lawyers show the full quote: “If I were running the show I’d say we concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil, i.e. scraping myspace.” (emphasis in original). The idea Steve Chen was promoting when he said the quote that Viacom tries to turn into a “smoking gun” actually had nothing to do with copyright infringement, note YouTube’s lawyers. Viacom quotes another of Steve Chen’s email in which he says that the “only reason why our traffic surged was due to a video of this type.” But this quote had nothing to do with Viacom content–it actually referred to a so-called “stupid video” of a person playing the drinking game “quarters.” (p.11-12 of brief)
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YouTube Appeal Brief