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Viacom Sues YouTube for Copyright Infringement

March 14, 2007 at 6:40 PM EDT

JEFFREY BROWN: It’s a case of old media taking new media to court. Yesterday, Viacom filed a $1 billion copyright lawsuit against Google, owner of the wildly popular Internet video-sharing Web site YouTube.

Viacom, the parent company of Nickelodeon, MTV, Comedy Central, and much else, says YouTube has profited by illegally allowing nearly 160,000 clips of Viacom content to appear on YouTube, including programs such as “The Daily Show” and “The Colbert Report.”

Google responded that YouTube, home to both amateur and professionally produced video, has procedures in place to remove copyrighted material. It also says that the law, the 1998 Digital Millennium Copyright Act, shields YouTube in this case.

The stakes are high: billions in advertising dollars and millions of viewers, who are increasingly going online for video.

Old media companies, like Viacom, NBC-Universal, CBS Corporation, and News Corp. are watching the exploding online video industry with great interest, and wariness. NBC and CBS have struck promotional and advertising deals with YouTube that allow certain content to be posted on the site while protecting other video from distribution.

Last month, Viacom itself struck a content-sharing deal with Joost, an upstart rival to YouTube.

Digital Millennium Copyright Act

And joining me now to discuss the case is Susan Crawford, professor of cyber law and communications law at Cardozo Law School.

Well, Professor Crawford, first, is it right to think of all this as part of a large cultural shift in people's viewing habits, the rise of so-called video-sharing?

SUSAN CRAWFORD, Cardozo Law School: Oh, absolutely. The founders of YouTube, three guys at a college dinner party, wanted to create a social networking site to allow people to share, mix, blend content together, rank it, share it with their friends.

This has grown into an enormous place where 100,000 videos are uploaded every single day and a million people go to visit. That's new media. The old media says, "Boy, we'd like a chunk of that. How could this all be going on without us being paid for it?" So this is a clash of cultures under a pretty interesting legal regime.

JEFFREY BROWN: So now you have Viacom saying, "Hey, our material is going on your site without our permission. We're not getting anything for it"?

SUSAN CRAWFORD: Well, what's going on is that we have a deal that was struck back in 1998 under the Digital Millennium Copyright Act.

The Internet does nothing but copy. It's a giant copying machine. So the deal we struck was that hosts of content uploaded by third-party users would get the ability to respond to specific notices, take it down, if there were infringing content on their sites, and then have their ships sail into a safe harbor, protected from the winds of copyright liability.

Copyright liability otherwise is a strict liability offense. If you copy something, you're stuck with liability. This would create nothing but an enormous pile of liability all over the Internet.

So because monitoring is so difficult, we have this safe harbor for hosts of user-generated content. It was a good deal for content providers, too. They get an automatic takedown. They send a notice to someone like YouTube, and the material goes down without any trial, without any statement to a judge.

JEFFREY BROWN: So what does YouTube now say regarding that law, that it is doing the best it can, that it can't look at everything that comes on its site? What's its response?

SUSAN CRAWFORD: Well, in a sense, it's surprising that this suit was filed. Google and YouTube have been quite active in responding to notices from Viacom and others and in making it relatively easy for copyright owners to get to them, send notices, and they're responding expeditiously.

They're saying, "We're complying with the statute." It's a place of security in an area of law that is otherwise quite uncertain. So investment has flowed into YouTube because it's a certain place shielded from liability.

A 'negotiating chip'

JEFFREY BROWN: You said it's a little surprising that this was brought. A lot of people will remember what happened in the recording industry with Napster and other sites. Does it look here like Viacom is being aggressive and kind of getting out in front of this early on?

SUSAN CRAWFORD: Well, many people are saying that this is actually just a negotiating chip being used by Viacom in its talks with Google and YouTube. It's clear to me that what's going on here is a real absence of attention to the growing cultural change in video.

JEFFREY BROWN: You mentioned the controlling law here. And the people we talked to today said that it is a little bit iffy, because, in part, it was written before so much of this technology changed, right?

SUSAN CRAWFORD: Well, but it anticipated exactly the situation where it would be impossible to monitor in advance, to ask for permission for a hundred thousand videos a day. So the response was, instead, this deal. Let's have content taken down as quickly as possibly. The word is "expeditiously" in the statute. And Google is doing that. They're being quite responsive.

JEFFREY BROWN: So is the question now how that law would be interpreted, if this goes to court?

SUSAN CRAWFORD: Yes, the question is whether the DMCA needs to be changed in some way to fit the situation here. I don't think it does. I think what YouTube is doing is exactly consonant with the statute.

Future for old media

JEFFREY BROWN: Now, in the meantime, as we mentioned, there are all kinds of deals being made, including Viacom itself. Tell us a little bit about how companies are trying to position themselves looking to this future.

SUSAN CRAWFORD: Well, these 10-minute clips being uploaded by users are fueling enormous appetite for the brands, and the characters, and the people in these shows. So it's a wonderful thing to harness.

BBC just did an enormous deal with Google, saying, "We want to make sure that we have channels for our users so they can see this stuff and so that we can have better information about what users are viewing and what they care about."

So other companies are seeing the opportunity to partner with YouTube and similar companies to bring themselves into the digital age.

JEFFREY BROWN: This was pretty clear when Google purchased YouTube that it wanted to create a space to attract these kind of mainstream programming, correct?

SUSAN CRAWFORD: Well, I don't think that's exactly what's going on here. If you spend any time on YouTube, most of what's going on there is user-generated content. People are commenting on these little 10-minute clips that they've created, sharing them with their friends, ranking them, and really having a great time.

I don't think you'll see a lot of "Colbert Report" and other copyrighted kinds of materials there. The majority of the material is user-generated.

So Google was trying to harness that enormous energy and use it for their own revenue-generating purposes, but this is not a pirate site. The comparison to Napster is actually quite inapposite.

JEFFREY BROWN: So how do you define the stakes as we go forward here, so people can understand? These are two behemoths, after all. What are the stakes?

SUSAN CRAWFORD: Well, I think that's the wrong way to frame this. This case is really about innovation.

Those three kids got together and started a new business, relying on this deal that had been struck in Congress. It's a balance between the owners of content and innovators.

If the suit is successful, this doesn't harm Google as much as it harms a lot of other sites that will want to depend on this same safe harbor. And look at eBay. Look at Amazon. Look at Yahoo. Lots of user-generated material going on; it would be extremely destructive to weaken the nature of this safe harbor.

JEFFREY BROWN: And you said that you think this might be a negotiating chip or ploy. Is that what happens next in all this, we watch to see if there is some deal cut? Or, indeed, if other mainstream big companies, old companies, that is, come in and file their own lawsuits?

SUSAN CRAWFORD: I can't read Viacom's mind here. I don't know what they're going for, and so I think we'll just have to watch the news. I think a close reading of the statute will show that Viacom's lawsuit is not well-stated.

JEFFREY BROWN: All right, Susan Crawford, thanks very much.