In a new filing, Google asserts that Viacom's lawsuit poses a danger to the entire online ecosystem. "Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression," Google argues.
Google drafted this brief in response to an amended complaint that Viacom filed late last month. That complaint alleged that YouTube "deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value."
Similar arguments have come up before in the course of this 14-month-old lawsuit. Viacom gripes that it's not fair for YouTube to build its business and brand name on copyrighted clips. Google counters that the Digital Millennium Copyright Act's safe harbor provisions show that Congress places a premium on innovation. Those safe harbor provisions generally protect companies from liability providing they remove infringing content upon request, unless the companies profit from pirated material.
Of course, YouTube didn't exist when the DMCA was passed in the 1990s, so it's not clear how Congress would have handled this precise situation. But in at least one respect, Viacom's arguments are at odds with the tradition of copyright law.
Viacom contends that it shouldn't have to continually ask YouTube to remove the same clips. Copyright law has long put the burden of policing infringement on the owner, but Viacom would like to see this state of affairs change. "Because YouTube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it 'take down' the infringing works," Viacom grouses.
With technological breakthroughs occurring far faster than legislators can enact laws, courts are going to have to sort out a great deal of messiness, including whether it's wise to hold Web companies responsible when users upload pirated clips.
Ultimately, however, it's hard to see what Viacom hopes to gain from this lawsuit. Unlike the situation with the original Napster -- which enabled people to get songs for free instead of purchasing CDs -- it's hard to see how YouTube is eating into Viacom revenues. Much Viacom content already is available for free -- either on TV or online. YouTube makes it easy for people to find and view that content, but that doesn't mean the online clips are cutting into Viacom's ratings.
Theoretically, the YouTube clips could be hurting Viacom's ad revenue, if people who view video on YouTube would otherwise spend time on Viacom's own sites or watching TV. But it's at least equally plausible that YouTube is helping Viacom when viewers who are first exposed to a program on YouTube become fans who watch the show on TV or on the network's Web sites.