Viacom and Google’s YouTube subsidiary will move out of their corners and into the ring on July 27th, when initial arguments begin. As a preview, spoke with YouTube product counsel Glenn Brown and Viacom General Counsel Michael Fricklas. Surprisingly, they had different opinions about the case. Brown’s key points for YouTube:

  1. The DMCA safe harbor was put in place by Congress explicitly to protect companies like YouTube
  2. The onus for policing copyright lies with the copyright holder
  3. Determining which content is owned by a big media company isn’t always easy, particularly given the high production values of many user-produced videos

Fricklas’ key points for Viacom:

  1. The DMCA safe harbor is actually not intended to cover companies like YouTube, because YouTube is not a storage company in the eyes of the law
  2. The safe harbor doesn’t protect companies that induce infringement
  3. It’s easy to find obviously infringing content such as TV shows and movies

I can’t help but think about how the perspectives of the two companies are a natural outgrowth of their relationship to technology. YouTube/Google is a company built and run by software engineers. One of the paramount rules of software development is to never do the same manual task twice. Write a program to do it instead! My guess is that YouTube is simply not happy with the state of their filtering software, and they don’t want to be legally obligated to spend money on human filtering of content. Content, after all, is merely the stuff that runs through the distribution network. Figuring out how to filter it is far less important than making the network itself work properly. The network brings revenue. Viacom, on the other hand, is used to fighting technological change tooth and nail. The music and movie industries have greeted every new distribution technology with anguish, and have successfully pushed for legislation to control content distribution. Getting the content distributed as broadly as possible is far less important than making sure the distribution can be filtered. After all, Viacom already has radio, television, movie theaters, and retail outlets. They’ll still be able to get the content distributed if Google’s pipes get clogged. The content brings revenue. It will be interesting to see whether the parties hew closely to their publicly-articulated arguments. Will this really hinge on interpretation of the DMCA safe harbor provisions, or will the Court focus on another aspect of the case? I still believe there may be life left in the Betamax non-infringing use analysis, but that’s probably wishful thinking.