Viacom Versus Google's YouTube: Dueling Documentation From Deceptive Rubes

The motivation for me a week-plus ago to finally put into action my longstanding plans to analyze the Viacom-vs-YouTube lawsuit was a report from Maximum PC indicating that Google was striving to delay publication of documentation regarding the case. Apparently, Google was unsuccessful, because the release happened yesterday, and there are innumerable gold nuggets amid the dross. First off, here they are (all PDFs):

• YouTube Summary Judgment Motion
• Viacom Summary Judgement Motion
• Viacom Statement of Undisputed Facts

Commensurate with the release, Google drew first blood in the court of public opinion, with an inflammatory post to a corporate blog. Check out these particularly tasty bits:

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

YouTube’s chief counsel Zahavah Levine also points out that "Viacom tried repeatedly to buy YouTube", and that "Viacom’s brief misconstrues isolated lines from a handful of emails produced in this case to try to show that YouTube was founded with bad intentions." About those emails…Ars Technica offers a consise summary:

• "In a July 19, 2005 e-mail to YouTube co-founders Chad Hurley and Jawed Karim, YouTube co-founder Steve Chen wrote: ‘jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.’"
• "Chen twice wrote that 80 percent of user traffic depended on pirated videos. 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 percent of what it is.’ Karim proposed they ‘just remove the obviously copyright infringing stuff.’ But Chen again insisted that even if they removed only such obviously infringing clips, site traffic would drop at least 80 percent. (’if [we] remove all that content[,] we go from 100,000 views a day down to about 20,000 views or maybe even lower’)."
• "In response to YouTube co-founder Chad Hurley’s August 9, 2005 e-mail, YouTube co-founder Steve Chen stated: ‘but we should just keep that stuff on the site. I really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down.’"
• "A true smoking gun is a memorandum personally distributed by founder Karim to YouTube’s entire board of directors at a March 22, 2006 board meeting. Its words are pointed, powerful, and unambiguous. Karim told the YouTube board point-blank: ‘As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.’"
• "A month later, [YouTube manager Maryrose] Dunton told another senior YouTube employee in an instant message that ‘the truth of the matter is probably 75-80 percent of our views come from copyrighted material.’ She agreed with the other employee that YouTube has some ‘good original content’ but ‘it’s just such a small percentage.’"
• "In a September 1, 2005 email to YouTube co-founder Steve Chen and all YouTube employees, YouTube co-founder Jawed Karim stated, ‘well, we SHOULD take down any: 1) movies 2) TV shows. we should KEEP: 1) news clips 2) comedy clips (Conan, Leno, etc) 3) music videos. In the future, I’d also reject these last three but not yet.’"

Here’s another choice tidbit found by VentureBeat, one particularly ironic given Google’s ‘Don’t Be Evil’ mission statement mantra:

“In a January 25, 2006 instant message exchange, YouTUbe co-founder Steve Chem (IM user name tunawarrior) told his colleague YouTube product manager Maryrose Dunton (IM user name maryrosedunton) that he wanted top “concentrate all of our efforts in building up [YouTube’s] numbers as aggressively as we can through whatever tactics, however evil,” including “user metrics” and “views” and “then 3 months, sell it with 20m views per day and like 2m users or something … I think we can sell for somewhere between $250m – $500m …”

And shortly after Google posted its blog statement, Viacom responded with one of its own. Here’s the wrap-up:

These facts are undisputed. The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case.

Who’s right? Who’s wrong? Either? Neither? Both? That’s for the court to decide, but this’ll undoubtedly be an interesting defense-of-DMCA-Safe-Harbor case to watch.

Happy weekend, all.