Google kicks Viacom in the nadgers

THE US MEDIA CARTELS are reeling after Viacom lost a high profile copyright infringement lawsuit it had filed against Google's Youtube service.

For years now entertainment industry lawyers have been showing up in court claiming that people are so-called 'pirates' and winning.

It was only a matter of time before one of the media companies decided to chance their arm and take on the search engine giant Google. If Viacom won, it would not only get huge amounts of cash but it would also mean that the entertainment industries would effectively take control of the Internet.

They could then scare the willies out of all the Internet service providers (ISPs), search engines and website operators to ban everything that might lead to filesharing.

Unfortunately Google proved to be a very difficult 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 online, to protect ISPs and website owners from the misbehaviour of Internet users. Specifically, the question turned on the 'safe harbour' provision of the DMCA, which is designed to allow service providers like Youtube the freedom to host content uploaded by users without fearing that they will be held liable for whatever potentially copyright-infringing material users 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.

Looking through the ruling it appears that it does not matter if you know you're hosting infringing content. Google might have understood in general that there might be copyright infringing files on Youtube, but only if it knew that something specific infringed copyright did it have to remove the file.

Judge Stanton interpreted the DMCA to mean that Google could only be expected to identify those specific clips with Viacom's help. 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, after three instances of removing their uploads for copyright infringement, banning them from the website. Viacom claimed that Youtube's three strikes policy let copyright infringing users off too easy.

You can read the court's decision here, and there's a less lengthy summary and analysis of the ruling at Groklaw.

Viacom has of course said that it will appeal the judge's ruling against it, but that will likely take years. µ