Viacom-YouTube Lawsuit: The Case Against Viacom

While things look bad for YouTube and parent company Google in their massive copyright-infringement lawsuit, YouTube also makes a pretty powerful case against Viacom.

Artwork: Chip Taylor
Earlier today, I argued that things look worse for YouTube in the $1 billion copyright-infringement lawsuit against it and Google ("Viacom-YouTube lawsuit: Both sides look bad, YouTube looks worse"). But Viacom looks pretty sleazy too.

Google charges that Viacom was posting its own videos on YouTube even while demanding YouTube take video down. Viacom intentionally obfuscated its own posts, making it difficult for YouTube to determine which videos were intentional Viacom uploads, and which were bootlegs, according to a post on YouTube's own blog. ("Broadcast Yourself"):

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.

I think the arguments so far look bad for Viacom, but worse for YouTube and its parent Google. Michael Masnick, writing at Techdirt, thinks the opposite. He says Viacom fails to make the case that YouTub

e knew which specific videos were infringing and should be taken down. Viacom must prove specific knowledge. Indeed, Google is demonstrating that Viacom intentionally sabotaged YouTube's efforts to do the right thing. "[T]here's a massive difference between saying 'yes, there are infringing videos on the site' and 'we know which videos are infringing.' [It] is a large and important gap -- and Viacom failed to close it," Masnick says. ("Analysis Of Google And Viacom's Arguments Over YouTube: A Lot Of He Said/She Said")

It's still early days in this lawsuit, and the story of YouTube's behavior toward copyrighted video is sure to change as time goes by. For now, both sides look dirty, although YouTube looks dirtier.

Mitch Wagner is a technology journalist, blogger, podcaster, Apple and Second Life enthusiast, and Internet marketing consultant. He hides from the sun in San Diego.

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