Google denies Viacom copyright charges

Search giant says it is protected by the 1998 Digital Millennium Copyright Act and says Viacom suit threatens video-sharing sites.
Written by Elinor Mills, Contributor
MOUNTAIN VIEW, Calif.--Google responded to Viacom's $1 billion copyright lawsuit on Monday, arguing that it has not infringed on the rights of the media company and that the lawsuit threatens the viability of its popular YouTube video-sharing Web site as well as others like it.

"We think YouTube offers the world's leading platform for entertainment, education and free speech," Michael Kwun, managing counsel for litigation at Google, said in a briefing with reporters at Google's headquarters here. "We're not going to let this lawsuit distract us."

In an official response (PDF) filed with U.S. District Court in the Southern District of New York, Google said: "By seeking to make carriers and hosting providers liable for Internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression."

Handling Google's defense in the lawsuit are Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif., and Bartlit Beck Herman Palenchar & Scott in Chicago, which represented President Bush in his appeal before the U.S. Supreme Court that stopped the recount of ballots in Florida from the 2000 presidential election. That decision handed the victory to Bush instead of former Vice President Al Gore.

YouTube, which Google acquired last year for $1.65 billion in stock, is protected from charges of copyright violation under the Hosting Safe Harbor of the 1998 Digital Millennium Copyright Act, Kwun said. Under the provision, service providers that host other people's content are "safe" from liability if they quickly remove material a content owner alleges infringes on their copyright.

"There is a certain irony to the lawsuit. Viacom and others...were at the table when the DMCA was adopted. These are the very people who helped design this law," Kwun said. "They are getting material taken down quickly and yet, suddenly, they don't want to live with the other end of the deal."

Viacom denied Monday that YouTube qualifies for protection under the DMCA, arguing that the company has prior knowledge of infringing material and is also profiting from pirated works.

"It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it," Viacom said in a statement. "It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube."

YouTube provides copyright protection tools to help copyright owners find uploaded clips that may infringe on the content creator's rights, Google said. The tools can prevent the reloading of copies of the same video clip after it has been removed from YouTube, the filing said.

Google offers "best of class tools" for protecting copyright owners, primarily for identifying content on the site that copyright owners have complained about, Kwun said. Google can't identify allegedly infringing content and block it or prevent it from being posted, he said.

"We already have in place a digital hash blocking system" that identifies the digital "fingerprint" of content that has been removed for copyright reasons, he said. In addition, YouTube prevents the uploading of any video longer than 10 minutes, a function designed to prevent pirating of full-length TV shows, movies and other copyrighted content, he said.

"We're trying to make it as simple as possible for content owners to be able to find their content on our system and (to) decide what they want to do about that," said Kwun. "We're always going to need their help in looking at the material."

Google Chief Executive Eric Schmidt said at the National Broadcasters Association conference this spring that the company was nearly ready to turn on a tool called "Claim Your Content" that will automatically identify copyright material so that it can be removed.

Comparisons to peer-to-peer file sharing networks Napster and Grokster, which found themselves defendants in copyright lawsuits and lost, are not valid, Kwun said. In those cases, "neither made any attempt to quality for the Hosting Safe Harbor (protection) of the DMCA," he said.

Viacom sued Google for copyright infringement in mid-March. The companies have not had formal settlement talks, he said.

A case management conference is scheduled for July 27 and the judge may set the initial case schedule at that time, Kwun said.

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