• by Wendy Davis  @wendyndavis, December 29, 2009

The judge presiding over the Viacom-YouTube copyright lawsuit has allowed Viacom to withdraw infringement claims for around 250 clips -- including approximately 100 that were uploaded to the site by Viacom employees or agents.

The ruling does not significantly affect the amount of damages YouTube could face if it is found liable because Viacom still claims that more than 63,000 of its clips were unlawfully available on the video-sharing site. But Google argues that the move supports its argument that it didn't know whether particular clips were infringing because Viacom employees themselves uploaded some clips as part of the company's marketing strategy.

"Perhaps better than any other evidence, this series of events belies Viacom's assertion that 'knowing that a clip is infringing is easy given the readily identifiable nature of Viacom's movies and television programs,'" an attorney for Google wrote in a letter to U.S. District Court Judge Louis Stanton in New York. "And it certainly undermines any argument that YouTube has the responsibility to determine, on pain of liability, whether a particular clip out of the hundreds of thousands uploaded each day is or is not authorized to be on the YouTube service."

Viacom sued Google's YouTube for copyright infringement in 2007, arguing that the site had built its audience by offering unlawful clips. Google argues that it's protected by the Digital Millennium Copyright Act's safe harbor provisions, which generally state that sites are not liable for copyright infringement based on material uploaded by users, provided that the sites remove the material upon request.

But those safe harbors only apply if Web sites don't know they have infringing material. For that reason, what Google knew about infringing clips and when the company knew it have become central to the case.

Santa Clara University law professor Eric Goldman says that Viacom's request to withdraw claims about some videos provides a "powerful testament to the difficulty of telling what's permissible online and what isn't." In that sense, he says, the move bolsters Google's assertions that it should have the benefit of the safe harbors.

Viacom and Google wrote to Stanton about this issue last month, but their letters were not made public until last week. Stanton ruled that Viacom could withdraw the clips and declined to grant Google partial judgment.

Google took the position that Viacom should not be allowed to withdraw claims without agreeing to a partial judgment on them. Google also wanted Viacom to agree that YouTube could use the withdrawn claims as evidence, arguing that Viacom shouldn't be able to "simply make these claims disappear" without a consequence.

Viacom successfully countered that its move was "part of the normal process of the scope of claims being narrowed in the course of discovery" and that there was no reason to give Google "a blank check to use the withdrawal of a handful of clips as evidence in the case."

Google and Viacom declined to comment for this article.