• by Wendy Davis , Staff Writer @wendyndavis, July 27, 2007

A new twist in the Viacom-YouTube lawsuit came out in a New York federal court this morning.

Viacom complains that users have uploaded "many, many thousands" of its clips to the video-sharing site. But it became clear in court today that Viacom has no idea how many of its clips have been uploaded -- and no good way to obtain a precise count. That's because Viacom isn't just suing over clips that have been uploaded to the public portion of the site. It claims the clips that users uploaded but marked "private" also violate copyright.

The disagreement came to light at a nearly two-hour hearing this morning, during which Viacom lawyer Donald Verrilli and Google lawyer David Kramer disagreed about when Viacom should present Google with a list of allegedly infringing clips. Kramer, who wants such information as soon as possible, argued that Google is in no position to determine which clips violate Viacom's copyright.

"We don't know what works the plaintiffs claim to own," Kramer said, adding that many Viacom clips were originally uploaded by the company itself. He proposed that Viacom go to the site and use its search engine to find the videos.

Verrilli countered that individual users might be uploading clips of Viacom TV shows, but only sharing them with a select group. In such cases, those clips won't appear in the search results. "For all we know, there could be a vast amount of clips ... only available to friends," he argued.

Of course, this argument raises a question: If clips are only uploaded to share with friends, does that constitute the kind of "public performance" necessary for copyright violation?

While that issue hasn't gotten nearly as much attention as the larger unresolved question -- whether the Digital Millennium Copyright Act's "safe harbor" provisions protect Google from copyright infringement -- in some ways, it's even more provocative.

In the pre-YouTube world, it was clear that inviting a few friends over to watch a movie didn't violate copyright. But in the digital era, where people can share movies with hundreds of friends at once, the definition of public performance becomes far murkier.