Letter from AmeriKat I - Viacom v YouTube (Viacom)

Last week the AmeriKat experienced one of those weeks that could only be described as chaotic. Presentations to prepare for, client work deadlines to meet and a flurry of unexpected issues raining down on her like cats, and unfortunately, dogs. When suffering through a week that buries you in a stack of to-do lists and deadlines, it can become easy to lose perspective - especially in a city where one can never see the horizon. (left - the AmeriKat's face after being caught in last week's rain of deadlines and weather) So when Friday evening finally managed to appear the AmeriKat prowled to the Thames, climbed the Golden Jubilee Bridges, and gazed at the horizon featuring a glowing St.Pauls and the flashing towers of Canary Wharf. Seeing the horizon for the first time in weeks put the AmeriKat's worrisome "to-do" list in perspective.

Heated summary judgment motions enliven Viacom v YouTube battle

Two parties that seem not to have gained in perspective during the course of their three year litigation are Viacom and YouTube (and parent company Google - both defendants in this action so terms have been used interchangeably) (previously reported here and here). The AmeriKat spent her weekend lovingly reading the almost 200 pages of their motions to glean idea of whether this battle is looking likely to be determined prior to a full hearing - although not a betting Kat, it seems highly unlikely given the fervour of finger-pointing raised in these filings. YouTube's summary judgment motion also covered the sister action fo the Premier League v YouTube (reported here).

Arguing a summary judgment motion in the US is somewhat similar to that in England. A summary judgment should be granted where "there is no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law" (Federal Rule of Civil Procedure 56(c)). The moving party (applicant) must demonstrate an "'absence of a genuine issue of material fact. . . The burden is then on the non-moving party (respondent) to set forth specific facts raising a genuine issue of fact for trial.'" (US ex Rel. Romano v NY Presbyterian (2006)).

In brief, this dispute arose in 2007 when Viacom (owner of Paramount movies and the MTV music networks) brought copyright infringement proceedings against YouTube (a subsidiary of Google) for the copying, display, broadcast and performance of their copyright videos and sound recordings on YouTube. Once notified of the infringing content on their site, YouTube allegedly did not do enough to remove the content or prevent future infringements. YouTube argued that they were protected by the Safe Harbor provisions of the DMCA, stating that they did not know of the infringement and that they had done enough to protect the claimants' copyright. At the end of December, Viacom informed the New York district judge, Judge Stanton, of their intention to file a motion for summary judgment. Google followed suit a couple of days later. For a breakdown of the parties' letters and DMCA Safe Harbor provisions see this AmeriKat article (which the AmeriKat recommends as prerequisite reading for this article). This post is split into two each dedicated to parties' arguments respectively.

VIACOM

Viacom's summary judgment argument focused primarily on the knowledge and knowing intent of YouTube and Google in uploading knowingly infringing content. Citing Grokster (2005), Viacom argued that YouTube operated with a specific and "unlawful objective of profiting from (to use their phrase) "truckloads" of infringing videos." The filing states that the defendants had "actual knowledge" of the infringing activity, but failed to do anything. Such Grokster intent, they argue, fails any DMCA Safe Harbor defence which is and should only be available to innocent service providers. In support of this contention Viacom referenced several internal e-mails and memos that allegedly show that the defendant's founders and employees intended to increase site traffic by the intentional inclusion of infringing videos. One such email allegedly from one of YouTube's founders Steve Chen

"urged his associates to "concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil."

Another e-mail referenced in the filing stated that the defendants were groping for ways "to avoid the copyright ba****ds" - a term Viacom alleges referred to copyright owners whose works were being infringed. Another email allegedly from Chen stated showed "he opposed removing infringing videos on the ground that 'if you remove the potential copyright infringements....site traffic and virality will drop to maybe 20% of what it is." Viacom claim that the defendants would "benefit form a policy of wilful blindness and toleration of infringement" - basically operating a "take down and notice" policy under the DMCA, despite potentially having the knowledge not to afford them the Safe Harbor protection.

Viacom's filing also argued that Google had shared the requisite knowledge with that of YouTube. In May 2006, Google held a Google Product Strategy (GPS) meeting attended by top executives including CEO Schmidt. At the meeting a final internal memo allegedly recognized that "YouTube is "a 'rogue enabler' of content theft" and its "business model is completely sustained by pirated content." Viacom allege that despite Google's "keen awareness that infringement was the linchpin in YouTube's success" they purchased the company in October 2006 for $1.8 billion. As part of that purchase Credit Suisee prepared a due diligence report for Google that estimated that, according to Viacom's filing, "54% of the video views in the due diligence sample were of premium copyrighted content that was admittedly unauthorized by the content owner." From pages 21-23 Viacom speak briefly about the importance of these internal documents which were never

"produced by Google or YouTube, which claims they were all lost... Fortunately, [Jawed] Karem (one of YouTube's founders) who left YouTube in 2006 and preserved these materials on his own personal computer, discharged his duties to this Court..."

Viacom argue that, as under Grokster at paragraph 938, these internal communications show "unequivocal indications of an unlawful purpose" and it is therefore established that the defendants "are liable for the infringement they intentionally made possible" beyond a question.

Viacom's motion also argued that the defendants are unable to benefit from the DMCA defence because they directly financially benefited from the infringement and that Congress did not intend to "immunize the kind of extremely culpable conduct at issue" in this case which is evidenced by the clear language of section 512(c)(1)(A). The defendants allege that they benefit from the DMCA provisions because they take down specific infringing videos identified to them. Viacom states that if that position was correct, "then the DMCA would just be a takedown notice statute, and all else meaningless surplusage." (Yes..surplusage....) Viacom argues that to benefit from the DMCA defence a service provider has to satisfy one of several preconditions - only one of those is responding to takedown notices. In particular they again reiterate that the defendants benefited directly from the infringements and had knowledge of the infringements. Viacom argues that the defendants' defence that they did not have 'specific' knowledge that a 'particular' clip was infringing takes them nowhere because such an argument of the absence of 'specific knowledge' does not negate wilful blindness on their part - there is not even a requirement of "specific knowledge" in the DMCA. Indeed, Viacom argues and as Judge Posner explained in the 7th Circuit, it intensifies it. (In re Aimster Copyright Litigation (2003)). Viacom also states that the defendants fall outside the DMCA because their activities, specifically their infringement of their copyright, are not those specified as core Internet activities of service providers meriting protection because "the infringement results not from web hosting, but from operating YouTube as a "consumer media company"".