Commentary: Google/YouTube sued by Viacom

It’s often been said that when Google, Inc. bought the YouTube service, it bought a lawsuit. There have been several, but the biggest one yet was filed on March 13, 2007. There are six counts, the first three are for infringements of the exclusive rights granted to copyright holders, and the remaining three are for various theories of indirect infringement.

The counts are:
Count I – (Direct Copyright Infringement – Public Performance)
Count II – (Direct Copyright Infringement – Public Display)
Count III – (Direct Copyright Infringement – Reproduction)
Count IV – (Inducement of Copyright Infringement)
Count V – (Contributory Copyright Infringement)
Count VI – (Vicarious Copyright Infringement)

This filing is obviously intended as more of a statement; the introduction reads like a brief, not a complaint. The meat of the complaint doesn’t start until Page 5, and even that’s just the jurisdictional statement.

Google/YouTube’s business strategy has been to comply with takedown notices given under the provisions granted under the DMCA, see my discussion of the 100,000 notices that Viacom issued in February here.

While the Defendants can prevail on Counts I, II and III under the Section 230 immunity granted to publishers under theories of direct liability, they could lose on Counts IV through VI, the indirect liability theories.

Paragraph 66 of Count IV alleges “…by their clear expression and other affirmative steps, Defendants are unlawfully fostering copyright infringement by YouTube users.” Loose lips sink ships, like what happened with Grokster. Discovery in the case will certainly be focused on this element, if there is a smoking gun/letter/email out there Viacom can afford to find it.

Count V alleges that Defendants are vicariously liable for the infringement of its users. In particular, it alleges they have actual or constructive knowledge of the infringments, which they then “enable, facilitate, and materially contribute” to. Essentially, Viacom is claiming that the infringement is so widespread, how could the defendants not know it was going on? To be fair, I believe this count is a stretch, as Google has been consistently taking clips down when notified of the infringement.

Count VI alleges that Defendants are vicariously liable because they have both the right and ability to stop the infringement by its users. Paragraph 84 is particularly interesting: “Upon information and belief, YouTube currently engages in practices to enforce content restrictions and protect the copyrighted works of its business partners, but withholds these same protections for the copyrights of persons, including Plaintiffs, who have not granted licenses to YouTube.” If true, it casts doubt on the oft repeated allegations that systems such as those alleged to exist here are impracticable.

We’ll see how this case pans out. I expect to see it fully litigated, not settled, but you never know.



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