Viacom Files Complaint Against Google and YouTube Alleging Violation of Copyright Law
March 12, 2007. Viacom and others filed a complaint [PDF] in U.S. District Court (SDNY) against Google and YouTube alleging violation of copyright law in connection with the operation of a commercial web site that permits users to publish copies of copyrighted works, without license.
The six count complaint alleges direct infringement by public performance, direct infringement by public display, direct infringement by reproduction, inducement of copyright infringement, contributory copyright infringement, vicarious copyright infringement.
Google owns YouTube. Viacom International Inc. is a content company. The plaintiffs are Viacom, and its affiliates, Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black Entertainment Television, LLC.
The plaintiffs are represented by Donald Verrilli and other attorneys at the law firm of Jenner & Block. Verrilli also represented content providers before the Supreme Court in the landmark case of MGM v. Grokster.
On June 27, 2005, the Supreme Court issued its unanimous opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.
The complaint states that broadband networks and digital technologies have "been misused to fuel an explosion of copyright infringement by exploiting the inexpensive duplication and distribution made possible by digital technology. Some entities, rather than taking the lawful path of building businesses that respect intellectual property rights on the Internet, have sought their fortunes by brazenly exploiting the infringing potential of digital technology."
It continues that "YouTube is one such entity. YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America's creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit without payment or license. YouTube’s brazen disregard of the intellectual property laws fundamentally threatens not just Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy."
The complaint states that "YouTube’s website purports to be a forum for users to share their own original" content, but in reality "a vast amount of that content consists of infringing copies of Plaintiffs' copyrighted works".
The complaint alleges that the plaintiffs "have identified more than 150,000 unauthorized clips of their copyrighted programming on YouTube that had been viewed an astounding 1.5 billion times".
The complaint also alleges that "YouTube prevents copyright owners from finding on the YouTube site all of the infringing works", and that "YouTube has also implemented features that prevent copyright owners from finding infringing videos by searching the YouTube site."
The complaint asserts that the "Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site."
"Defendants know and intend that a substantial amount of the content on the YouTube site consists of unlicensed infringing copies of copyrighted works and have done little or nothing to prevent this massive infringement. To the contrary, the availability on the YouTube site of a vast library of the copyrighted works of Plaintiffs and others is the cornerstone of Defendants’ business plan. YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value."
The complaint also states that "YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site", and that "YouTube has deliberately withheld the application of available copyright protection measures in order to coerce rights holders to grant it licenses on favorable terms."
Viacom stated in a release that "After a great deal of unproductive negotiation, and remedial efforts by ourselves and other copyright holders, YouTube continues in its unlawful business model. Therefore, we must turn to the courts to prevent Google and YouTube from continuing to steal value from artists and to obtain compensation for the significant damage they have caused."
On March 6, 2007, Thomas Rubin, Microsoft's Associate General Counsel for Copyright, Trademark and Trade Secrets, gave a speech in which he stated that Google systematically violates copyright. See, story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.
He primarily addressed Google's copying of books. However, he also said that Google's YouTube "follows a similar cavalier approach to copyright". He said that "television companies, movie studios and record labels have all complained that the site knowingly tolerates piracy. In the face of YouTube’s refusal to take any effective action, copyright owners have now been forced to resort to litigation. And Google has yet to come up with a plan to restrain the massive infringements on YouTube".
Gigi Sohn, head of the Public Knowledge, stated in a release that "Without commenting on the specific allegations involved, we note that simply because material is ``unauthorized´´ does not make its use illegal. There are limitations to copyright law, known as fair use, that do not require the copyright owner’s permission before use of a work. Many of the users of YouTube who have posted short clips of main-stream media’s works have done so using their fair use rights, for reasons of criticism, comment, education, and news reporting. We are confident YouTube and Google will continue to take appropriate actions in accordance with the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA). By a previous request of Viacom, YouTube has already removed some 100,000 clips."
Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This lawsuit represents another attack on balanced copyright by rightsholder interests who mistakenly believe they are the sole gatekeepers for how copyrighted works may be used. The fair use doctrine says otherwise. Much of the content on YouTube represents news, commentary, and criticism -- these represent the heart of our fair use doctrine."
Black continued that "for any content that is not protected by fair use, processes exist to resolve copyright concerns that do not involve firing off lawsuits. These disputes should be addressed under the carefully balanced notice-and-takedown system provided for in the Digital Millennium Copyright Act. That system relieves service providers of the impossible obligation to affirmatively monitor the Internet."
Black accuses "some
mega-content companies" of seeking "to undo their deal and pressure innovative
internet companies through specious litigation."