On March 13th, Viacom filed suit against YouTube, Google’s immensely popular online video site, claiming that YouTube’s business model is based on infringement of copyrighted works. Since then nothing has happened with the case, but there has been plenty of analysis by observers, as well as some business activity hinting at how this may all play out.

There’s plenty for law professors to chew on:

Starting with the complaint, Professor Edward Lee of the Moritz College of Law at The Ohio State University calls attention to Viacom’s theatrical language. He notes that in a 27 page complaint, Viacom “uses the word ‘massive’ 9 times, ‘rampant’ 4 times, and ‘brazen’ twice.” According to Prof. Lee, Viacom is going to have a tough time backing up these claims, most notably because YouTube’s traffic figures don’t seem to support a claim that the site is dependent on infringing uses of copyrighted content. Professor Bruce Boyden, a Visiting Professor of Law at Washington and Lee, looks at the viability of a Safe Harbor affirmative defense for YouTube. Section 512(c)(1) of the DMCA requires that YouTube clear several hurdles. In particular, the fact that YouTube provides filtering technology to some but not all copyright holders could create difficulties:

YouTube’s failure to implement filtering technology that it is offering others, after receiving a list of infringing works posted on YouTube, could arguably violate (A)(iii), (B), and (C). Such withholding of technology could (if true) constitute a failure to “act[ ] expeditiously to remove, or disable access to, the material,” and could also translate into an effective “right and ability to control” the activity from which the ISP receives a direct financial benefit.

He then goes on to point out that Section 512(m) cuts in a different direction:

In any event, even if a service provider is under no duty to filter, that may not imply that the ISP is immune from liability if it discriminatorily filters only the content from providers it likes.

Google’s attorneys are telling the world they’re covered by the DMCA Safe Harbor:

Alexander Macgillivray, Google’s associate general counsel for products and intellectual property told Reuters in a March 14 interview that the DMCA Safe Harbor protects YouTube: “This is an area of law where there are a bunch of really clear precedents, so Amazon and eBay have both been found to qualify for the safe harbor and there are a whole bunch more.”

Meanwhile, the CEO is characterizing Viacom’s complaint as negotiation by other means:

In an interview with Wired Magazine, Google CEO Eric Schmidt seems confident about Google’s position. When asked, “What made Viacom go to court?” he answers:

“It’s a business negotiation. We’ve been negotiating with them, and I’m sure at some point we’ll negotiate with them some more.”

He also takes care not to criticize the DMCA:

“The balance that was struck in the DMCA has worked pretty well, and I think it may be better for all of us to work within that framework for a while as we develop these new businesses.”

And what does Viacom Chairman Sumner Redstone really think about YouTube?

While Viacom is suing YouTube, its CBS subsidiary entered into a March Madness content distribution deal with YouTube. Perhaps Viacom is embarking on a multipronged online content strategy. As this Bloomberg article notes, while CBS is working with YouTube, Viacom has upgraded its iFilm property to make it more YouTube-like. Viacom has also signed on with Joost, a copyright-friendly online TV company. By trying multiple approaches and hitting YouTube with a lawsuit, Viacom may be trying to obtain better leverage with Google in a future content distribution deal.

How about that iFilm?

Google may have an ace up its sleeve in that Viacom’s own iFilm site isn’t infringement-free. A March 19 article in Ars Technica revealed that many potentially infringing videos could be found on iFilm. I just ran the same search (“NBA brawl”) that Eric Bangeman used in the Ars Technica article, and came across several suspicious results, including one Michael Jordan clip taken from an NBC telecast. It seems YouTube isn’t the only site having a difficult time policing user-uploaded content.

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