• by Wendy Davis  @wendyndavis, October 18, 2011

Viacom on Tuesday asked a federal appellate court to revive a lawsuit accusing Google's YouTube of infringing copyright by allowing users to post infringing clips on the platform.

Paul Smith, the attorney representing Viacom, argued that a decision by U.S. District Corut Judge Louis Stanton dismissing the lawsuit was “practically and legally indefensible.” Smith argued that YouTube should be held responsible for unlawful clips uploaded by users because company executives “welcomed infringement” on the video-sharing site and profited from the large number of people who came to the site to see professional content.

But Google attorney Andrew Schapiro countered at Tuesday's hearing that Stanton correctly decided the company wasn't liable because it removed all infringing clips upon request of the content owners. The case dates to February 2007, when Viacom filed a $1 billion copyright infringement lawsuit against Google's YouTube for allegedly hosting unauthorized clips from shows like South Park and The Colbert Report. (Other content owners, including the U.K. soccer group Football Association Premier League, also unsuccessfully sued YouTube. The appeals in both matters were heard together on Tuesday morning.)

Viacom alleges that the infringement continued through May 2008, when YouTube implemented a new technological system that filters out infringing works. Google argued that it wasn't liable for infringement, based on any clips uploaded by users, because the Digital Millennium Copyright Act gives Web companies “safe harbor” from liability as long as they remove infringing material upon request.

Google said that it removed all clips when the content owner provided the company with a specific URL. But Viacom and the other content owners argued that Google should have proactively removed all material the company had reason to know was infringing.

The entertainment companies argued that they weren't obligated to repeatedly ask YouTube to take down the same material simply because the clips were uploaded by different users and therefore, had different URLs. Viacom and the Football League also argued that YouTube wasn't eligible for the safe harbors because it didn't meet the criteria.

Specifically, the safe harbors have exceptions for companies that profit from infringement, as well as for companies with knowledge of infringement. Smith argued that YouTube profited from infringement by drawing an audience with pirated material, as well as by monetiznig the site with ads. He also argued that company executives' internal emails showed that YouTube knew about piracy on the site and turned a blind eye toward it.

For instance, Smith argued that YouTube removed a “community flagging” service after just two weeks. That service enabled users to flag particular clips as infringing. Smith argued that internal emails showed the company took the feature down, so that it could argue later that it lacked knowledge about infringing clips. But Schapiro said the feature was removed because it wasn't helpful. He said that in the short time it existed, users flagged a total of around 50 clips, many of which appeared to be lawful -- including a clip of someone's hamster.

Schapiro also stressed the difference between clips that are copyrighted -- virtually every clip uploaded to YouTube is protected by copyright law -- and those that are infringing. He argued that it wasn't possible to determine whether clips were infringing without information from the content owner. In fact, it emerged during the litigation that Viacom agents themselves uploaded clips from the entertainment company as part of marketing campaigns.

Viacom originally included those clips in its list of infringing material, but withdrew claims related to them later.

“If they can't tell,” Shapiro asked, “how can we?”

The appellate judges' leanings weren't clear from Tuesday's hearing. But one of the judges on the panel, Jose Cabranes, seemed concerned by the practicalities of the case. He questioned what relief Viacom was seeking, given that Google implemented a technological filter in May of 2008. Smith answered that the company was still seeking damages for prior infringements and an injunction. The other judges on the panel were Debra Ann Livingston and Roger Miner.