Roughly six months before it bought YouTube, did Google actually share the view of the online video site that other copyright owners had — that it was a repository for illegally uploaded content? Does Viacom have a smoking gun against Google/YouTube, and does it come in the form of statements from their own senior executives?
These tantalizing questions are now in the public realm thanks to new court documents filed Thursday in Viacom’s three-year-old copyright infringement case against Google/YouTube, which claims that the video site encouraged users to pirate intellectual property. Viacom says the new documents are evidence that Google tried to use the specter of content theft as a way to get favorable licensing deals from the studios and media companies that owned the content.
Google claims the documents aren’t new or particularly relevant, but a slide presentation from 2006 — before Google’s purchase of YouTube — is getting a lot of attention. Titled “Overall Recommendations,” the slides feature bullet points saying “change terms with premium content providers,” “pressure premium content providers to change their model towards free,” “adopt ‘or else’ stance (regarding) prosecution of copyright infringement elsewhere” and “set up ‘play first, deal later’ around ‘hot content.'”
The slide presentation and other documents were all placed on Viacom’s Web site Thursday. They also include senior Google executives seemingly arguing against a buyout of YouTube and saying that “YouTube’s business model is completely sustained by pirated content” and “we should beat YouTube (with Google Video) by improving feature and user experience, not being a ‘rogue enabler’ of content theft.”
“It’s revealing that Viacom is trying to litigate this case in the press,” Google spokesperson Aaron Zamost told the E-Commerce Times. “These documents aren’t new. They are taken out of context and have nothing to do with this lawsuit.”
Viacom Associate General Counsel Stanley Pierre-Louis begs to differ: “Taken together, these exhibits make clear one of our core claims in the case: that Google made a deliberate, calculated business decision not only to profit from copyright infringement, but also to use the threat of copyright infringement to try to coerce rights owners like Viacom into licensing their content on Google’s terms,” he said.
Google has claimed in the past that Viacom employees were encouraged to upload their content to YouTube as a way to promote its artists and movies. Pierre-Louis responded: “But this is a problem YouTube and Google created, not Viacom. We asked for the ability to identify to YouTube which clips were promotional, but YouTube and Google did nothing because they didn’t want to know. In the law this is called ‘willful blindness.’ Just last week, the U.S. Court of Appeals in New York noted that ‘willful blindness’ is just another form of intentional infringement.”
The Looming Court Battle
The depositions, memos and slide presentations potentially weaken Google’s claims that it is protected by portions of the Digital Millenium Copyright Act, said Robert Gomulkiewicz, professor and director of the intellectual property law program at the University of Washington. “Everything that you can show that they had prior knowledge (of copyright infringement) is helpful,” Gomulkiewicz told the E-Commerce Times. “They’re anticipating that Google will raise the defense that if you’re just an intermediary, an ISP, as long as you don’t know what’s going on and take things down once you are given notice, you can claim a safe harbor from liability.
It’s interesting that Viacom is indeed parading its documents before the media, Gomulkiewicz added. “That leads me to believe that they’re trying to create pressure in the media for some sort of settlement or license negotiation. Otherwise they would just quietly prepare for trial. In this case, I think Google does want to be a good citizen when it comes to copyright law, and Viacom just wants to make sure it gets paid, and when you look at those two positions, it really just comes down to how much.”
The supposedly incriminating statements by senior Google executives can be dealt with in a courtroom, said William Schultz, trademark attorney and partner in the Minneapolis office of IP firm Merchant & Gould. “If there is a reasonable explanation for the statements, the statements will have less impact. If the person making the statement confirms the meaning is that of ‘rogue enabling,’ the documents may be more powerful,” Schultz told the E-Commerce Times. “The ultimate decision will be the weight the judge or jury puts on the documents.”
A Copyright Precedent Forthcoming?
However, which court will ultimately make those determinations? Could it indeed be the Supreme Court? Google CEO Eric Schmidt has vowed to fight the case all the way to that venue, and longtime Washington D.C.-based technology attorney Ray Van Dyke thinks it could indeed end up there because of the possible precedents involved — a much-needed updating (in the eyes of many) of copyright laws that haven’t kept up with the advance of technology.
“Content owners, as befits the copyright laws of our country, want those laws respected. The Internet has created a new paradigm, however — one that greatly facilitates uncontrolled and perhaps uncontrollable sharing of any content,” Van Dyke told the E-Commerce Times.
Some of those modern companies are being proactive about content owners’ rights in new media. “Some companies adopt the approach of ‘take first, and ask forgiveness later’ when you have leverage over the content owners, making the situation a fait accompli in favor of the taker,” he added. “Even though this is manifestly unjust, some companies — and much of the populace that desires free content — operate under this model.”
Viacom v. YouTube touches on these issues, Van Dyke said, which is why with settlement unlikely, the Supreme Court may get to make the final decisions. “Along the way, the Second Circuit and then the Supreme Court will address the proprieties of taking proprietary content in the 21st century, updating our copyright and other laws accordingly.”