Google Litigators

Viacom v. Google, YouTube:
The Battle between Copyrights & Public Interest

In the contemporary era of information technology, as borders and boundaries between people across nations are ever decreasing, whilst the rapid global dissemination of knowledge, self-expression, and entertainment, Viacom has chosen to pursue the path of obstructing the advancement of society by diminishing the modern prime venue for individual self-expression, namely YouTube.com. Viacom alleges copyright infringement on the part of Google, Inc. through the YouTube.com website relating to some 150,000.00 clips, thereby attempting to persuade the world that this dispute revolves around alleged undue acts of Google with respect to copyrights. Aside of the conceptual realm of statutory theories and case law, the reality depicts that this epic battle is not truly about whether copyrights subsist in Viacom’s works, but rather whether the courts are going to allow the diminishment of the public interest over Viacom’s undue exploitation as well as expansion of IP rights, resting on the collapse of an entire industry and ultimately on the crumbling shoulders of individuals’ rights to express themselves.

In a similar yet humble manner to our forefathers’ democratic principles, YouTube.com has successfully created a platform of self-expression “from the people, for the people.” Its simple purpose of creating an environment, in which people can freely express themselves in an artistic, creative, commenting, and criticizing manner, generated an unprecedented attendance of the public. Meanwhile, Google was very cautious and intensely thoughtful in its preservation of other party’s intellectual property rights, implementing filters and constituting restrictions that both expressly prohibit the uploading of copyrighted works and oftentimes even disable such uploads.

Indeed, Google has been acting in good faith and accordingly has been striving for cooperation with intellectual property holders across the spectrum of artists and corporations in the pursuit of solving the issues at hand. However, Viacom aims at a monetary benefit from this lawsuit and plainly disregards the social benefits of the YouTube technology. They oversee the insignificance of the alleged 150,000.00 clips over the YouTube library of 70 million clips, encompassing substantially and almost exclusively original works of users. Their dispute is antagonistic to societal advancement and represents an obstacle to a thriving industry and above all the freedom of most users, who do not infringe any IP rights. YouTube does not embody harm towards Viacom. Instead, Viacom’s IP exploitation embodies the commencement of precedents aiming at halting the progress of technology and thereby the advancement of society.

The Silicon Valley Business Coalition op-ed

Thomas Jefferson once dreamed of having a library in every county in America: "Nothing would do more extensive good at small expense," wrote the author of the Declaration of Independence, than to make available "a few well-chosen books to be lent to the people."

Today, the advent of the Internet and the rapid growth in Americans' access to it allows us to surpass even Jefferson's vision of the democratic ideal. Instead of a library in every county, we have the possibility of a library in every home, stocked not just with a few well-chosen books but with a nearly limitless supply of content across every form of media imaginable.

What a shame it would be to squander such an opportunity. Yet that is exactly what we risk when government regulation and acrimonious litigation stifle and strangle the technological innovation that makes such far-reaching content delivery possible in the first place. Lawsuits like Viacom's action against YouTube, coupled with increasingly shrill calls from content owners to increase the regulatory burden on content deliverers represent a grave threat to both the new economy and people's newfound ease of access to information (no small problem now that we are officially living in the Information Age).

Perhaps none of our nation's founders understood the need for adequate intellectual property protection better than Jefferson – a prolific writer, thinker and inventor in his own right. But his understanding was shaped by a belief, reflected in the Constitution itself, that the point of such protection was to promote ideas and innovation with the aim of diffusing them throughout the public as widely as possible.

Similarly, those of us who strive to broaden everyday Americans' access to content have tremendous respect for the rights of the content owners. But when those rights are asserted not to promote innovation but to block it then we have strayed too far afield from the intent of the framers in granting those rights in the first place.

Our experiences with past government interventions into new technologies shows, that laws and amendments created to govern the new are bound to fail. Unclear and undefinable laws stifle innovation and discourage the development of new business methods. And in a constantly-changing business environment, laws and regulations that make their way through lengthy approval processes often lag behind the curve and govern situations that do not exist any more.

Instead of relying on the government to solve our problems for us, we urge content owners and content deliverers to work together do what we do best – innovate a solution. Specifically, we should be working to create an industry-wide filtering standard that allows easy recognition of protected content. Armed with such a tool, content owners and providers would find it much easier to navigate the presently murky waters of the Safe Harbor provisions provided for in current law.
Once protected content can be reliably identified, the invisible hand of the market will fashion several solutions. One approach would be to give the content owner a choice between removal of the infringing material from the content delivery site or a split of revenues earned from having that content on the page. For low-revenue sites, another possibility could be the grant of free advertisement space for the content owner.

In any event, a focus on finding a technological solution will keep us truer to Jefferson's spirit and bring us closer to achieving (and surpassing) his utopic vision than any lawsuit or bureaucratic rule ever could.

The Silicon Valley Business Coalition is a group of companies involved in development of internet-technology and internet based businesses. We experiment with new ways to create, distribute and market content on the internet. We respect reasonable copyright protection, but we seek to avoid overly strict regulations and copyright policies that threaten innovation and new ideas.

The Artists' Coalition Speaks Out on YouTube

As Viacom and Google wage war in the courtroom over YouTube, we ask that they each stop to consider the true source of their respective fortunes. At the end of the day, it's about content. Without it, Viacom would have nothing to sell through its massive distribution channels. Google would have nothing to search, and more importantly in this context, nothing to play on its most intriguing and controversial acquisition—YouTube.

Where does this content come from? Simple. The artists.

The controversy, at its core, is about our creations and performances. As such, one would think we'd have a large financial stake in the outcome. However, this is not the case. The race to bring audiovisual content to the internet has left us behind and overlooked our role in creating value.

The large media companies, like Viacom, place our works online and pay us lower royalty rates—if at all—claiming that internet broadcasting is promotional. To make matters worse, YouTube pays us nothing unless it is through a license deal with a major media company—a deal in which we would likely not fully participate.

Importantly, YouTube creates new opportunities for young artists. It allows them to display their own creations online to a global audience without the financial backing and distribution power of record labels and film studios. Let's not forget the voice it has given to our striking writers, as they fight for their fair share of online revenues. YouTube may even support business models for direct-to-online productions.

Some users have begun to create their own "art" by remixing and modifying ours works, with many showing our works in an unsavory light. Unauthorized mashups and remixes, despite their popularity, take away our ability to control the integrity of our creations. Some argue these represent a new art form; we hold that they are theft and distortion of our works.

YouTube will always have some degree of infringing material. As such, it has an obligation to give portions of its profits back to the artist community. While not a perfect solution, it would be a great first step.

Op/Ed Assignment: Statement by the Digital Millennium Copyright Act Revision Committee

The Internet and online technologies have grown so quickly that the Digital Millennium Copyright Act (DMCA) was arguably out of date before its October 28, 1998 signing. Hence, nearly 10 years after its enactment, it is necessary to revisit the provisions of the DMCA. We limit the scope of our revisionary proposals to two areas within 17 U.S.C. § 512.

One major flaw in the act is an inadequate handling of the term “service provider”. The DMCA defines “service provider” near the end of § 512 at (k) in two different ways. “Service providers” are then broken into categories by provisions (a) through (e). This convoluted verbiage is not only confusing, it fails to account for emerging technologies that, though worthy of safe harbor protection, might fall outside of the listed categories. We propose that “service provider” be redefined in a single simpler and more robust way that would not only account for the current categories but also for service providers that might now be beyond the imaginative grasp of legislators.

A second major flaw is the untenable burden placed on IP owners who try to police misuse of their works. We acknowledge that redefining “service provider” as suggested above could lead to an even greater burden for IP owners. Hence, we would require service providers to make use of technology in order to combat the problems that technology has caused. Current take-down notices are ineffective; service subscribers repost infringing works as soon as they are removed. Therefore, we propose a revision such that when IP owners provide sufficient identification of a work (e.g. digital signature, the work in its entirety, etc.) with the initial notice, no further notice will be required. The burden then shifts to the service provider to ensure that works so identified are not reposted. Section § 512(g)(2), which allows the subscriber to oppose take-down of noninfringing material, will stay in place in some form. Since the level of service provider might range from an amateur, noncommercial user to a major corporation, we further propose a reasonability standard for protective measures. This will allow for effective, one-time notices without overburdening low level service providers.

In my family's case

My family enjoy YouTube, especially old TV programs and kid programs. Of course, they are probably copyrighted. However, I think they do not harm the copyright owners by the potential infringement.

Old TV programs on YouTube recall our childhood, and we can enjoy reminiscing about the old days. I guess somebody uploaded them from his old video tapes. Without his effort to upload, nobody can enjoy them because the copyright owners are not interested in selling them as DVD or other media. Since the old TV program market is small, it may be difficult to profit from them. Therefore, they not only harm nothing but also bring us a lot of fun.

Kid programs, especially Japanese ones, are enjoyable because my kids can understand only Japanese. In addition, it is hard to watch kid programs on DVDs in the U.S. because of their region code. A DVD player in the U.S. can not play Japanese DVD unless the player is a region free one. We can enjoy the kid programs as well as the old TV ones.