THE US MEDIA CARTELS are reeling after Viacom lost a high profile copyright infringement lawsuit it had filed against Google's Youtube support.
For years now entertainment industry lawyers have been showing up in court claiming that individuals are so-called 'pirates' and winning.
It was only a matter of time before one of the media businesses decided to chance their arm and take on the lookup engine giant Google. If Viacom won, it would not just get large amounts of cash but it would also imply that the entertainment industries would successfully take control of the web.
They could then scare the willies out of all the web support providers (ISPs), search engines and web site operators to ban everything that might lead to filesharing.
Unfortunately Google proved to be a very hard nut to crack, and it prevailed, dashing the media cartels' hopes.
Judge Louis Stanton squashed three years of legal work by Viacom, which had sued Google for a billion dollars. It claimed that Google had posted copyright-infringing clips on Youtube.
At issue was the strength of the Digital Millenium Copyright Act (DMCA), the US federal law governing copyright infringement on the internet, to protect ISPs and web site owners through the misbehaviour of Internet users. Specifically, the question turned about the 'safe harbour' provision from the DMCA, which is created to allow service providers like Youtube the freedom to host content uploaded by customers without fearing that they will probably be held liable for whatever potentially copyright-infringing material customers might post.
The 'safe harbour' exception only applies if the ISP or website follows three rules: that it wasn't aware that the content was infringing, it wasn't profiting from the content, and it removed the content when asked.
Judge Stanton's ruling establishes, apparently for the first time, how the 'safe harbour' provision of the DMCA applies to a service like Youtube.
Searching through the ruling it appears that it does not matter if you know you're hosting infringing content. Google may have understood in general that there might be copyright infringing files on Youtube, but only if it knew that something particular infringed copyright did it need to remove the file.
Judge Stanton interpreted the DMCA to imply that Google could only be expected to identify those particular clips with Viacom's assist. He observed that in some cases Viacom had uploaded its copyrighted content to Youtube itself. He also noted that in one instance Viacom identified 100,000 clips in a single day in February, 2007. By the end of the next business day Youtube had removed "virtually all of them".
Unlike self-proclaimed 'pirate' websites that advertise hosting copyright infringing content or making it available, Google did not brag about doing so or promote Youtube as a 'pirate' operation.
The judge praised Google's Youtube service for tracking which users upload copyrighted content and, following three instances of removing their uploads for copyright infringement, banning them from the web site. Viacom claimed that Youtube's three strikes policy let copyright infringing customers off too easy.
You can read the court's choice here, and there's a less lengthy summary and analysis of the ruling at Groklaw.
Viacom has obviously said that it will appeal the judge's ruling against it, but that will likely take years.
Source: The Inquirer


