• by Wendy Davis  @wendyndavis, March 18, 2010

YouTube co-founder Steve Chen allegedly urged associates to "concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil.'"

Viacom allegedly secretly uploaded its own clips to YouTube in stealth marketing campaigns, dispatching employees to Kinko's and other off-premises locales so that the material couldn't be traced back to the network.

Chen allegedly claimed that 80% of the the site's traffic "depended on pirated videos."

Viacom allegedly "altered its own videos to make them appear stolen, like 'footage from the cutting room floor, so users feel they have found something unique.'"

These are among the accusations flung by Viacom and Google in court documents released Thursday. Each side is asking U.S. District Court Judge Louis Stanton in New York to award it summary judgment in the copyright infringement case.

Viacom, which sued YouTube in March of 2007, argues that the video-sharing site built its business by inducing copyright infringement. Therefore, Viacom argues, YouTube should be liable for infringement. The company argues that U.S. Supreme Court ruled in 2005 that companies who deliberately induce piracy are liable for copyright infringement.

Google counters that it's protected by the Digital Millennium Copyright Act's safe harbor provisions, which generally provide that sites aren't liable for copyright infringement based on material uploaded by users, provided the material is removed upon request. Those safe harbors only apply if Web sites don't know they have infringing material.

Google says it had no way of knowing which Viacom clips were infringing and which were legitimate because the company itself uploaded many of them. In December Viacom withdrew infringement claims for around 250 clips -- including around 100 that were uploaded to the site by its agents. Last week, infringement claims for more than 100 additional clips were dropped from the case.

"Both before and during this litigation, Viacom has been unable to readily or consistently discren which clips on YouTube containing its material were authorized and which were not," the company argues. "And if Viacom cannot effectively distinguish what it authored from what it did not, YouTube has no chance of doing so."

Each company appears to have some legal precedent on its side. In Viacom's favor, the U.S. Supreme Court decided in the 2005 Grokster case that the peer-to-peer service was liable for copyright violations because it deliberately induced infringement. Additionally, late last year a federal judge in Los Angeles ruled that the BitTorrent search engine IsoHunt couldn't get the benefit of the DMCA safe harbors because it induced infringement.

Yet some courts have also issued rulings that would seem to favor Google. Last September, a different federal judge in Los Angeles dismissed a lawsuit by Universal Music Group against video-sharing site Veoh, ruling that the site qualified for the DMCA safe harbors. That judge ruled that the DMCA doesn't require sites to proactively police for piracy; rather sites need only remove infringing clips upon owners' requests.

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, says that one of the unanswered questions posed by the case is whether companies who might have once engaged in questionable behavior would then always be liable for copyright infringement.

The Supreme Court didnt' address that issue in the Grokster case because in 2005, when the court decided the case, the service was still generally seen as a vehicle for piracy.

But YouTube today is largely viewed as a mainstream, legitimate site -- which, Goldman says, could lead courts to come to a different conclusion than in the Grokster case. "No presidential candidates were using Grokster for campaigning in 2004, but they were all using YouTube in 2008," Goldman says.