14 DAY TRIAL // The three-year-old legal battle between media giants Google-owned YouTube and Viacom is heating up, as the lawsuit is about to get underway after all the preliminary hearings have been completed. In the meantime, a number of court documents from all parties involved have been released, the first time we've been able to get a clear look at the arguments coming from both sides.
The claims are all pretty strong, with Viacom accusing YouTube of knowingly keeping infringing videos on the site and producing a number of emails between the top three people at the then-independent YouTube indicating that they knew about copyrighted videos being on the site, how could they not, and were concerned about it but they were more concerned about getting traffic than about removing copyrighted material. The emails aren't as bad as Viacom would have you believe, but, no matter how Google tries to spin it, they're not helping YouTube's case to say the least.
But Google also has some pretty interesting claims, which, if proven true, should sabotage Viacom's case incriminating emails or not. Google's main defense is that it can't know for sure if a video is infringing because it can't be sure that the person who uploaded it was authorized to do so or not. This makes it practically impossible for Google to actively police the content on YouTube.
Making this even harder is the fact that Viacom allegedly uploaded its own content to the site, using various tactics without disclosing that it was doing this. Google says Viacom hired as many as 18 different marketing agencies to upload clips. The videos were deliberately modified so that they would look 'stolen.' The argument is that Viacom recognized the promotional potential of YouTube, but it chose not to go through the 'official channels.'
Google said that this led to situations where the company would ask for certain videos to be taken down only later to realize that it uploaded them itself. Helping Google's case even further is that some of the videos over which Viacom is suing were actually uploaded by employees of the media giant. In the end, Google says that YouTube should be protected by the DMCA and, precisely because it can be so hard to determine if an uploader is authorized, that the task of monitoring for infringing videos should be left to the content owners.
There should be more details like these coming as the lawsuit gets underway and it should be very interesting to see who wins in the end. Most likely, the truth is somewhere in the middle. It's hard to believe that YouTube owners didn't know about infringing videos on the site and that they also didn't realize that they were a great source of traffic. However, Viacom's actions show that, even if YouTube wanted, it would be close to impossible to know which videos were infringing and which weren't. We'll have to wait and see what the judge thinks about this but that is going to be a while from now.