Internal YouTube e-mails indicate that YouTube managers knew and discussed the existence of unauthorized content on the site with employees but chose not to remove the material, three sources with knowledge of the case told CNET. The e-mails, according to the sources who asked for anonymity because of the ongoing litigation, surfaced during an exchange of information between the two sides of the legal dispute. They are one of the cornerstones of Viacom's case, as well as that of a separate class action lawsuit filed against Google and YouTube by a group of content owners, the sources said.
The entertainment industry was quick to call the revelations a "smoking gun." For instance, here is a quote from entertainment lawyer Roger Goff:
The facts you described could very well be the smoking gun that puts a hole through Google's case. ... Google will have a very difficult time claiming that (its staff members) don't undermine its protection.
This is because the DMCA safe harbors don't apply if YouTube had actual knowledge of infringement, or failed to act to remove content or disable access. As U.S. District Judge A. Howard Matz said in the industry's case against P2P video firm Veoh: "The issue is whether Veoh takes appropriate steps to deal with copyright infringement." This evidence appears to
YouTube denied the claims that there is anything quite so serious being revealed here.
"The characterizations of the supposed evidence, made in violation of a court order, are wrong, misleading, or lack important context and notably come on the heels of a series of significant setbacks for the plaintiffs," Aaron Zamost, a YouTube spokesman, said Monday evening. "The evidence will show that we go above and beyond our legal obligations to protect the rights of content owners."
But Viacom's own actions could undercut their claims. Viacom employees themselves may have uploaded content to YouTube.
Court documents show that on August 25, Viacom agreed to turn over records that shed light on "Viacom's decisions to upload or authorize the uploading of videos to YouTube" and on the company's policies "for allowing videos to remain on YouTube for marketing promotional or other business reasons."