Google’s trademark Googley super confidence is no where to be seen in its in-house litigation counsel’s blustery quid pro quo Washington Post retort to Viacom general counsel Michael Fricklas’s prior op-ed.
While defiant, Michael Kwun is pithy, to a fault. It is ironic that his indignant “reply” to Viacom reads more like snack-size text-culture, than a lawyerly, fact-based argument. If he will be heading up Google’s $1 billion “massive copyright infringement” defense, Viacom may benefit.
Kwun: “Viacom's lawsuit is an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own.”
NO, Viacom’s action is a civil action business as usual solicitation of the United States District Court for the Southern District of New York to order Google to cease directly or indirectly infringing, or causing, enabling, facilitating, encouraging, promoting and inducing or participating in the infringement of any of Viacom’s exclusive rights protected by the Copyright Act.
The DMCA, in fact, states a right of “injured persons” to bring civil actions to obtain civil remedies in appropriate United States district courts.
Kwun: “In the Digital Millennium Copyright Act, Congress struck a careful balance between the rights of the copyright holder and the need to protect the Internet as an innovative communication frontier, not as another venue for litigation.”
NO, “Congress recognized the only thing that remains constant is change. The enactment of the DMCA was only the beginning of an ongoing evaluation by Congress on the relationship between technological change and U.S. copyright law,” Statement of Mary Beth Peters, The Register of Copyrights, before the Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary, United States House of Representatives 107th Congress, 1st Session, December 12-13, 2001.
Kwun: “Content-hosting sites such as YouTube, Craigslist and MySpace that want to take advantage of the DMCA's safe harbors must promptly remove infringing content if the copyright owner so requests, giving owners a quick remedy that doesn't require going to court. Copyright owners, in return, have the responsibility to identify infringing material they want removed. Viacom's lawyers helped craft this law but apparently don't like it, after all. They want to shirk the responsibility Congress gave them. Placing that burden on hosting platforms would turn the DMCA on its head.”
NO, Elements of notification required by the DMCA are not absolute:
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
The DMCA, in fact, puts the onus on “content hosting sites such as YouTube” to promptly attempt to:
contact the person making the notification or take other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions.
I debunk Kwun’s wishful thinking “Fortunately, the law is clear, and on our side,” not so rousing conclusion in “Google vs. Viacom: Will Michael Kwun eat his DMCA words?”
The United States District Court for the Southern District of New York will not be swayed by Kwun’s not so Googley “he said, she said” anti Viacom emotional diatribe.