Google: Viacom wanted to buy YouTube, uploaded its own clips

Google: Viacom wanted to buy YouTube, uploaded its own clips

Summary: Court documents unsealed today in the Viacom vs. YouTube lawsuit gives a glimpse at what led to legal dispute

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Viacom, which reportedly tried to buy YouTube before Google, seems to want it both ways when it comes to content on YouTube, the video site's chief counsel argued in a blog post today as filings from the legal dispute are unsealed.

As part of its $1 billion copyright infringement lawsuit filed against YouTube, the entertainment giant has suggested in its filings that YouTube looks the other way when it comes to unauthorized videos - such as those owned by Viacom - being uploaded to the video sharing site.

But YouTube argues that Viacom has gone out of its way to upload its content on to the site - sometimes in secretive ways - because it recognizes how valuable the YouTube audience is - and that Viacom has made it difficult, at best, for YouTube to police its content. In his post, YouTube chief counsel Zahavah Levine writes:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

YouTube argues that Viacom's actions make it harder for YouTube to police what's a legitimate upload and what's not. In compliance with the Digital Millennium Copyright Act, YouTube does remove copyrighted material when the copyright holder informs the site of its presence there, Levine said.

So is this just a case of being a sore loser on the part of Viacom for being outbid by Google for the purchase of YouTube? Or did YouTube's founders really look the other way about copyright violations when they launched the site so they to build an audience for it and then sell it, as Viacom has alleged?

CNET's Greg Sandoval, who has been sifting through court documents, found an interesting nugget entered into the record by David King, head of Content Identification System technology that YouTube uses to filter out copyrighted materials. King wrote:

For some of its reference files, Viacom has instructed the site to block, which means take it down and prevent it from going up again. But on others, Viacom has instructed YouTube to leave the clips up and provide the company with information" about how YouTube users are engaging with the matching videos.

YouTube revolutionized online video viewing and, in the process, built an audience that content providers might want to tap into. Plenty of Viacom's content, such as clips from Comedy Central's The Daily Show with Jon Stewart, have appeared on YouTube and received plenty of views. In most cases, a bigger audience would be a good thing for Viacom. But only Viacom should be allowed to decide which clips go up and which don't, the company says.

In Viacom's memorandum, the media company made the following points:

YouTube can't rely on the DMCA as a defense for infringement and the video site took "tens of thousands of videos" from Viacom. The media company relies heavily on MGM vs. Grokster, a case where the Supreme Court found that there was no societal benefit for intentional copyright infringement.

Viacom pushes emails from YouTube and Google executives as proof that there's "a compelling and indisputable record of Defendants' intent to use infringing videos clips to build the YouTube business."

Google turned a blind eye to copyright after a content licensing deal with Viacom fell apart. Viacom said that Google valued such as content license at $590 million. A key excerpt:

Google and YouTube traded off piracy for traffic and in most cases traffic won, said Viacom.

And a post-acquisition "YouTube Content Policy Training" manual even highlighted Viacom's "Daily Show" by name as an example of content to "Approve" when reviewing videos flagged for terms-of-use violations.  Thus, as Google founder Brin had candidly stated during Google's internal debate on this issue a few months earlier, the company was consciously "changing [its] policy to increase traffic knowing beforehand that we'll profit from illegal downloads." This changed only in mid-2008, after Schmidt "shifted his thinking on YouTube's focus," and Google began to use filtering technologies to curtail infringement.

There was a lot of debate about copyright infringement so Google knew what it was doing. From the Viacom memo:

In May 2006, Google held a Google Product Strategy (or "GPS") meeting attended by top executives, including CEO Schmidt. The GPS focused on Google Video. Before the meeting, David Eun, a senior Google executive responsible for negotiating license agreements with content owners, sent an email to Schmidt summarizing the internal "heated debate whether we should relax enforcement of our copyright policies in an effort to stimulate traffic growth" to beat YouTube at its own game.

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  • Should not the owner have the right to decide

    which clips he owns that he wishes to upload?

    Why does Google believe they, or their users, have the right to other's content?
    GuidingLight
    • its not Google's fault

      it is the users' and Viacom's that uploaded the videos there, not the hosting company.
      Linux Geek
      • Yes, it is their fault

        Sorry, but it is their fault. It is their responsibility to police and control the content that is on their site.

        Just because they let people upload content to their site freely, that does not absolve them of the responsibility of that content.
        jrepine1
        • That's highly debatable...

          if it's true the Viacom was surreptitiously uploading files. While Google/YouTube may have some responsibility (likely), the media company's alleged tactics would make it difficult to tell when content is infringing and when it isn't. Since their whole case seems to rest on the idea that YouTube should be doing a better job of determining when copyright is being violated, that is a critical point.

          If I were Google, I'd block ALL Viacom content and make it very clear why. I suspect that Viacom has much more to lose.
          mdsock@...
    • Yes; but the owner can't have it both ways

      If the reports of emails and meeting minutes are correct, then, once Google & YouTube started enforcing the rules they apparently also decided to fiddle with how they enforced them.

      They, then, failed on two fronts. One, the rules are the rules. They could have stayed out as a "news stand" but once they started enforcing then they had to stick with it.

      The other front -- as in war -- that they missed on is that once the started blocking the Viacom content then they should have kept at it with an iron fist until Viacom was forced by it's own idiocy to give in to the reality of the market.

      As it is, Google allowed Viacom to play it both ways and in doing that, also gave Viacom the stick with which to beat them.
      XXP
    • Not so simple...at all

      Policing a site like You Tube isn't child's play. First consider the very nature of the site, its free to use and free to post to. A pile of stuff gets posted from around the world 24 hours a day 7 days a week. Its hard enough to police what is and is not available for consumption on an hour to hour basis with out any further complexities then that.

      Then along comes Viacom. They say their content is protected content and should not be allowed to stay on You Tube. That makes things a little tricky in that one would now expect the goal is to remove the Viacom content from You Tube as fast as possible. But things get a little more complex then that once you realize that Viacom dosnt nessesarily want all their content off of You Tube. And as Viacom is always producing new content all the time there isnt some kind of simple list that can be referred to, even Viacoms position on specific older content may change from time to time.

      Lets get real tricky now, how about Viacom secretly puts some segments of their content on You Tube themselves, and apparently they do! Lets further consider, for even a further layer of complexity, that Viacom requests certain things do get taken down and sometimes in error they request things be taken down they want left up! Once you reach this stage of confusion its more then a little unfair to simply say Viacom owns the content and they should be allowed to say what can be posted and what cannot.

      Its more then a little beyond the beyond. Its a mess. You have to keep in mind as well that while setting up and operating a website like You Tube isnt so hard once you have the capitol and the expertise, the model its based on, that is unfettered random public posting of whatever the public feels like posting around the clock, it can get insanely hard to police because the site becomes a bit of a monster something like the hydra. Cut off one head and a couple more could grow right back.

      The only real resolution to a situation like this means some serious decisions have to be made, perhaps on at least a couple of fronts. First of all, it has to be decided by the powers that be, should a website like You Tube be allowed to exist knowing full well that the chance of copyright infringement isnt simply likely, its an absolute given that it will be rampant. You would have to have an army of overseers just to have a hope of cleaning it up in an ongoing timely basis.

      You simply could not operate a website of the sheer size of You Tube without some continuous and repeated infringement even if each case was relatively brief. It has to be decided if such a thing can be allowed.

      If it can be allowed to continue to operate in much the same way it has in the past Viacom should bite the bullet here and decide if they don't want to be on You Tube at all or if they do want their content on You Tube then to back off a bit and take a pill and relax and live with it. At least to the degree that it all can remain workable.

      I have been saying for a very long time now that it truly appears the media just dosnt get it. Everything and anything that can be digitized has now had its value drastically and forever altered. The first approach all these media outlets have taken is to approach the problem in the standard way; litigation to save the day. They just don't get it. This is not a standard problem for the media and in the long run litigation isnt going to accomplish much of anything. Not where litigation is just like the sword that cuts off the hydras head, we know how that works.

      Somewhere down the line, and I don't mean tomorrow or next week some media company is going to wake up and realize they are sending good money after bad with litigation and they will readjust their thinking to a new and clever approach which is reasonable and works, but profits may never be quite the same. In any event its way past too simple in this case to just say the content belongs to them so they should have the say, and the reason is that they way things exist right now; that will never ever work, its simply treading water.
      Cayble
  • ViaCom's dirty tricks brigade!!!!

    Kick viaCom back to where they belong, the Refuse tip!!!!
    chaz15
  • RE: Court docs: Viacom wanted to buy YouTube, uploaded its own clips

    I think it's Viacom's right to ask YouTube to remove copyrighted material. It is YouTube's right to remove ALL copyrighted material, even if Viacom wants it to stay up there. Viacom can't have it both ways, and YouTube has no right to leave Viacom copyrighted material up. I'd guess that YouTube owes Viacom money, and Viacom may have cut its own throat.
    Jim from Indy
  • If Viacom loaded clips under false ID's

    I think basically they screwed up.
    Really they have committed a type of fraud.

    Its akin to having a security guard slip something into your girlfriend's purse then stop her for
    "stealing".

    What they need to do is remove ALL of Viacom's
    material. While Viacom has the right to say something
    does not belong on the site, youtube has the right to
    not allow it be there also.
    richard233
    • Viacom seems bipolar

      If it is true that Viacom uploaded ANYTHING that they are suing for then Google should be awarded the whole Viacom company. That's right Google should own Viacom if they are suing fraudulently.
      Time the defendants get something rather then just lawyers getting rich!
      sfaid
      • Now you are talking some sense ! (nt)

        nt
        hkommedal
  • RE: Court docs: Viacom wanted to buy YouTube, uploaded its own clips

    Viacom gave up their rights to any such material they uploaded. If YouTube can prove it they win
    rolnmrbl@...
  • Hey Via-Con!

    I know of this nice lady in Denver who walks through plate glass windows in stores for a living (she's got it down to an art, never gets cut, and most retailers/chains now just settle rather than pursue the Pyrrhic victories of proving she's a flim-flam artist in court). I think you two would be very happy together...
    egads@...
  • RE: Court docs: Viacom wanted to buy YouTube, uploaded its own clips

    Kids, we're living in the land of the lawyers and Viacom recognizes that Google has deep pockets. In order for the Viacom attorney to earn his $billion, he has to get a $3 Billion settlement out of Google. A great payday for a few years part time work.

    Since there is evidently little that makes sense in this, Viacom has probably a coin toss (50%) chance of winning. Forget Vegas, this is the highest paying craps table in the world.

    And don't forget that it is based on the principle that the ISP cannot be held responsible contained in the Digital Millenium Copyright Act. You're wondering why the first judge that read the title of the first page of the law suit didn't cite the 1998 Act and dismiss the case out of hand. Me too.
    TomMariner
    • A good end result would be :

      As this obviously is a rather malisious lawsuit, YouTube (Google) should be rewarded damages and tort to be 50.01% of Viacoms shares !

      That would have been a [b]strong precedense.[/b]
      hkommedal
  • RE: Court docs: Viacom wanted to buy YouTube, uploaded its own clips

    Under the "clean hands" doctrine, Viacom is going to lose,
    david@...
    • And they should be losing 50% of their shares to YouTube. (nt)

      N (o) T(ext).
      hkommedal
  • Let them fight it out, won't make me a dime either way.

    Mildly entertaining but doesn't mean anything to the average person.
    No_Ax_to_Grind
    • But it is

      Further evidence of the general "dumbing down" of the world. I think instead of investigating Global Warming we should be investigating Global Increased Stupidity.
      medezark@...
      • half full/half empty

        You are more optimistic than I if you think there's been an increase in stupidity. Humans have always been ignorant, the difference is that we are losing what intelligence we once had.
        trefire