What is likely to be final set of briefs in the Viacom-YouTube (NSDQ: GOOG) appeal has been filed, and the argument is becoming more focused. The case comes down to what kind of copyright-policing system we want. Should it be one where copyright owners need to send notices with specific URLs, or one where internet companies must take additional actions, including installing software filters?
There aren’t a whole lot of new arguments in these briefs, which represent a sort of parting shot by Viacom (NYSE: VIA) and the class-action plaintiffs who are suing YouTube over the same allegations. But two main arguments made by Viacom here are worth noting-and both have serious problems.
Viacom says that YouTube should have taken additional measures to protect copyright, including the installation of a software filter. Such technology “was commercially available at a reasonable cost when YouTube launched.” Viacom is bitter that Google didn’t offer the one filtering tool it did have, called “Claim Your Content,” to any companies that weren’t revenue-sharing partners with them. YouTube’s attitude towards copyrighted material was one of “willful blindness,” argue Viacom lawyers.
Content owners and website operators have to reach some kind of balance of responsibility when it comes to policing against piracy, and with this argument, Viacom hopes to tip that responsibility more towards internet companies. But the new balance Viacom would want to see lacks clarity. If takedown notices with specific URLs aren’t the standard, what should be the standard? Viacom says filtering should be part of the solution-but that argument is technology-specific. It doesn’t age well. What happens when filtering software is upgraded to the next generation-which it inevitably will? If Viacom were to win on this argument, the rules around handling user-generated content would be dangerously vague. Content owners who don’t like the terms of a particular website could always argue that the filter isn’t good enough. The rule if YouTube wins-that it’s content owners who are responsible for sending in notices with complete URLs-is simple and more “timeless.” (Although there is certainly a fair argument to be made that the notice-and-takedown process isn’t effective-and the industry has made that point to Congress.)
Viacom also responds to YouTube’s point that Viacom was uploading large amounts of its own content to YouTube-some of it even made to look “pirated.” If even Viacom’s own officers couldn’t tell whether the content was authorized or not, how could YouTube? Even if YouTube had difficulty identifying which clips are infringing, that’s “completely beside the point,” write Viacom lawyers, because the service knew at least some clips weren’t authorized. That seems like an awfully weak rebuttal of YouTube’s point here, which is that it can’t know which clips to take down without help from copyright owners.
Viacom’s reply brief was filed along with a brief from the class-action copyright lawsuit that’s being litigated together with the Viacom case. Both briefs are available at Michael Barclay’s law blog, IP Duck. Oral arguments for this appeal haven’t yet been scheduled.
There’s one big copyright case involving online video that’s going to be decided well before this one, though. Universal Music Group v. Veoh, is scheduled to be argued this Friday, May 6. If the two cases have similar outcomes, it would establish a strong precedent one way or the other; if they vary greatly, it might encourage the U.S. Supreme Court to take up the issue.