Viacom In Denial Over Court Smackdown In YouTube Case
from the common-sense? dept
With Google’s victory over Viacom concerning the applicability of the DMCA’s safe harbors to YouTube, it’s no surprise at all that Viacom quickly announced its intentions to appeal. And, perhaps because of that, it needs to make statements about how wrong the ruling is. But, as with its position statements and filings throughout this lawsuit, much of the rhetoric from Viacom’s General Counsel Michael Fricklas makes no sense at all:
Copyright protection is essential to the survival of creative industries. It is and should be illegal for companies to build their businesses with creative material they have stolen from others. Without this protection, investment in the development of art and entertainment would be discouraged, and the many artists and producers who devote their lives to creating it would be hurt. Copyright protection is also critical to the web — because consumers love professional content and because legitimate websites shouldn?t have to compete with pirates.
This is both misleading and inaccurate. Fricklas, who I actually think understands these things a lot better than many others in his field, is certainly not dumb. But it’s beneath him to mislead with the statement above. Whether or not copyright protection is “essential to the survival of creative industries” (and recent research has shown that statement to be false), the question at play in this lawsuit has nothing to do with whether or not copyright law is allowed to be used. It’s merely a question of liability. Nothing in this ruling says that copyright law doesn’t apply. It just says that Viacom can’t blame Google for the actions of its users. Fricklas tries to mislead by pretending this is about whether or not copyright law applies at all.
It’s also frustrating that some reporters covering this story also seem to be taking the same position, saying that this ruling is “a big blow for traditional copyright laws.” It is not. Not even close. This ruling does not change traditional copyright laws in the slightest, and is entirely consistent with numerous previous rulings (all cited in the case). All this ruling concerns is who is liable for infringement: the user who uploads infringing material, or the platform provider who hosts it. The folks who crafted the DMCA made it clear that liability belonged squarely on the shoulders of those who did the uploading, and the court agreed.
Nothing in this ruling takes away from copyright law or changes copyright law, and even if you believe Fricklas’ unsubstantiated claims that copyright law is essential, nothing in this ruling changes the nature of copyright law. Pretending otherwise is being purposely misleading. Once again, it appears that Viacom is now more interested in fighting this out in the media, rather than the court room.
Before that, however, YouTube and Google stole hundreds of thousands of video clips from artists and content creators, including Viacom, building a substantial business that was sold for billions of dollars. We believe that should not be allowed by law or common sense.
This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.
This is, again, blatantly misleading on so many levels that it really discredits Fricklas. It means that he either does not understand the actual legal issues being discussed in this lawsuit or he’s being blatantly dishonest. You pick which is more likely. YouTube and Google “stole” nothing. If they had stolen anything, then Viacom should have gone to the police and pressed criminal charges. But Fricklas knows the law and knows that laws involving theft and laws involving copyright infringement are entirely different. On top of that, he knows that it was users who uploaded the content, not Google. Implying otherwise is misleading. As for what the case “has always been about,” again, he’s wrong. It’s not about that at all. It has always been about one thing and one thing only: who is liable for infringement done by users on a platform. The fact that Viacom chose to focus on the easy target of the platform provider, rather than those actually responsible (the uses), was simply a bad legal choice that Fricklas apparently does not want to accept blame for making.
I’m all for arguing the merits of whether or not Google or its users should be liable for infringement. But implying that this case is about changing copyright law or “permitting theft” is simply untrue.
Filed Under: content, copyright, michael fricklas
Companies: google, viacom, youtube
Comments on “Viacom In Denial Over Court Smackdown In YouTube Case”
I wish this was the final word
If only this was the final ruling on this matter. Unfortunately, Viacom will appeal this ruling until they find a judge who is willing to buy their BS.
Defamation
I’d like to see a defamation lawsuit against Viacom and other content companies that claim that people are stealing their content. They’ve publicly stated that Google is stealing their content. The court case isn’t even about theft, but rather copyright violation. Since Viacom hasn’t brought evidence that Google is in fact stealing, much less violating copyrights, it’d be nice to see them get a multi-million dollar suit for such blatant lies. It’s not difficult to argue that such claims are threatening to Google’s business reputation.
Re: Defamation
It’s not difficult to argue that such claims are threatening to Google’s business reputation.
Not only that, but it would go a long ways towards educating the general public on the difference between “theft” and “infringement”
Re: Defamation
Never gonna happen. Fricklas is using “stealing” very broadly; he’s not using it to imply that YouTube burglarizes Viacom’s offices. Further, Fricklas has a good faith and reasonable belief that YouTube is taking and using Viacom’s copyrighted content without Viacom’s permission. Just because Fricklas is using the term “stealing” incorrectly does not mean that he’s liable for defamation.
Re: Re: Defamation
I have to laugh at that, since a lot of the stuff Viacom wanted to DMCA slap… was uploaded by Viacom themselves.
Google must have ninjas in Viacom’s offices uploading to YouTube from employee terminals.
Re: Re: Defamation
Doesn’t matter how broadly he’s using ‘stealing,’ the US Supreme Court ruled that copyright infringement is not theft, thus not ‘stealing.’ Fricklas also does not imply that YouTube is stealing, he outright states it as fact. Not belief, fact, that they are guilty of criminal action. Theft is criminal, copyright infringement is civil. That, sir, IS libel and defamation such that it could cause harm to YouTube’s and Google’s public images.
Re: Re: Defamation
Youtube is not taking Viacoms material. If they have it at all it is being uploaded to their site by users. Unless you are stating that Youtube employees are uploading the material your statement is as inaccurate as Fricklas’s.
Re: Re: Defamation
“Never gonna happen. Fricklas is using “stealing” very broadly”
IANAL but Fricklas is. Therefore, his use of the word stealing here seems to be defaming. As a copyright lawyer, he sure as shit knows that copyright infringment is not theft. there is no way his use of this word in this context is not deliberate and intentional. That, my friend, is defamation.
Wait a damn minute...
“It is and should be illegal for companies to build their businesses with creative material they have stolen from others.”
Gee, doesn’t Viacom own Spike? (spike.com?) I noticed a lot of Youtube users videos are posted on Spike.com, and most of those users had no idea their videos were posted on there, and Viacom is making money off the ads surrounding them.
So isn’t Viacom stealing from Youtube and its users?
Re: Wait a damn minute...
Well that same statement could be applied to the RIAA and the likes as well.
Re: Wait a damn minute...
those people aren’t real content creators. they are just morons with cameras.
Re: Re: Wait a damn minute...
[quote]those people aren’t real content creators. they are just morons with cameras.[/quote]
You’re right, Viacom apologist. In fact, since they are so poorly done, you shouldn’t sully Spike.com with that nonsense. It lowers your brand reputation.
Delete those videos immediately!
What’s that? You would lose thousands of dollars in revenue? Morons with cameras are very profitable?
Which is it? If the videos are making money for your site, you can’t label them “morons with cameras” who “don’t matter”.
Re: Re: Wait a damn minute...
those people aren’t real content creators. they are just morons with cameras.
problem, officer?
Re: Re: Wait a damn minute...
Is this a serious comment? Did you forget your SarcMark?
What would be the problem with removing the “morons with cameras” videos from the site then? They are covered by copyright as much as anything Viacom owns, by your own logic this is horrible and must be stopped at all costs.
Re: Re: Wait a damn minute...
And you aren’t a real commenter…you are just a moron with an opinion (and a very overpaid shill for the industry.)
“You’re a legend, Bill!”
Just because the material isn’t produced and distributed by the companies you represent or work for doesn’t make them any less of a content creator under the law. Anyone who produces original content, even if they are just morons with a camera, are just as able under the law to produce and distribute their content how they see fit, and if they don’t want Viacom to take their content off Youtube and distribute it on Viacom’s own site, then under the law, they have just as much right to avoid having it done as Viacom has. You may look at content as an “us vs. them” attitude, but for the most part the law does not agree with you (albeit the law isn’t perfect because the morons with cameras probably don’t have the money to go after Viacom for infringement.)
You might not think very highly of the morons, but that is most definitely a judgement call, and “You ain’t got no pancake mix.” Some of us love the morons with cameras.
Re: Re: Wait a damn minute...
“those people aren’t real content creators. they are just morons with cameras.”
Listen up, sparky. In 1976 the copyright law was amended, and greatly expanded, and included the proviso that ANY content created is AUTOMATICALLY copyrighted at the moment of creation. This is a clause that YOUR INDUSTRY (big media, entertainment) lobbied HARD for. You reap what you sow. You cant come along now and whine that it “doesnt count” just because the people have the power and ability to entertain (and create) content themselves. Boo fucking hoo, too bad for you. You wanted it so badly, you got it, now you get to live with its consequences, which cut BOTH ways, not JUST in favor of your industry.
Re: Re: Wait a damn minute...
“those people aren’t real content creators. they are just morons with cameras.”
Marmaduke … nuff said
HERE FIXED IT FOR YOU
Copyright protection is essential to the survival of GREEDY industries. It is and should be illegal for companies to build their businesses with creative material From anyone that industry don’t want to compete with. Without this protection racket, investment in the development of Yachts and HUGE mansions would be discouraged, and the many lawyers and labels who devote their SOULS to GREED would be POORER. Copyright protection racket is also critical to the CONTROLLING THE web — because consumers love BEING MANIPULATED AND CONTROLLED and because illegitimate GREED shouldn’t have to compete with competition.
Re: HERE FIXED IT FOR YOU
your caps lock key keeps getting stuck, ranting dude.
river in egypt
denial is a river in Egypt
“It’s not murder, it’s manslaughter!”
Re: Re:
Manslaughter: The unlawful killing of a human being without malice or premeditation, either express or implied; distinguished from murder, which requires malicious intent.
There be a difference, my dear.
Re: Re: Re:
Not to the victims.
Re: Re: Re: Re:
The victims would be dead, so how is their opinion on the matter relevant?
Not that I want to side with Viacom, they are absolutely correct that YouTube knowingly permitted copyrighted content to exist on their site in order to drive up the selling price.
The emails that were published during the trial proved that; YouTube brass flat out said they knew that without the copyrighted clips, their site would be deflated, and internally condoned the strategy of leaving those clips up as long as possible.
This would significantly increase site traffic which, in turn, would drive up the value of the company.
YouTube SAID ALL THIS.
Re: Re:
Uh…
1) All content is copyrighted. Hence, ALL content on Youtube is copyrighted.
2) Leaving content up until notified is in compliance with the law. You can’t be charged with breaking nonexistent laws.
3) The YouTube emails also said that user-created content was what separated them from all the other video streaming sites.
Re: Re:
In addition to what was already said, Viacom brought up the email you reference, and the courts replied with:
Not to mention, the court ruling just says that it is the copyright holder’s responsibility to alert service providers that something was uploaded without their permission, versus the service provider magically knowing what is authorized and what is not. Which, apparently, Viacom can’t even keep track of.
Re: Re:
Not that I want to side with Viacom, they are absolutely correct that YouTube knowingly permitted copyrighted content to exist on their site in order to drive up the selling price.
The emails that were published during the trial proved that; YouTube brass flat out said they knew that without the copyrighted clips, their site would be deflated, and internally condoned the strategy of leaving those clips up as long as possible.
This would significantly increase site traffic which, in turn, would drive up the value of the company.
YouTube SAID ALL THIS.
You’re absolutely correct in that it was proven that YouTube management were generally aware of infringement. However, the decision the other day clearly stated that knowledge of general infringement on the site didn’t factor into the DMCA safe harbors. Since YouTube continued to respond appropriately (and within the law) to takedown requests as specified in the DMCA, the judge’s decision yesterday declared that they were still not liable.
So I guess in other words… I’m not really sure what your point is? The entire purpose of the DMCA is so that if users put content on your site that infringes copyrights, even if you know that there’s probably a lot of infringing content on your site… you’re still not liable, the users are.
The industry fought tooth and nail to be able to sue entities who post infringing content, assuming (incorrectly) that it would be large-pocketed entities posting infringing content–they never imagined the explosion of user-generated content that we have now.
I feel bad… but not that bad.
Re: Re: Re:
I don’t feel bad at all. I actually feel kind of good.
Not about changing the laws.
Sorry Mike but I disagree with you, this is completely about changing the law, it just isn’t Google that is doing the changing. Viacom is simply trying to change the law so that safe harbor protections wont exist, so saying that this case isn’t about changing the law is completely off.
I just can’t get over the name “Fricklas” XD
What I really like about this case ....
What I really like about this case, and why the content industry is more than likely going to keep loosing. Publicity and friend of the court briefs. The judges are now being held to a higher standard by the public and are being scrutinized, and various groups are filing and publishing friend of the court briefs.
Maybe I remember wrong,but thought Google at one time during this lawsuit stated the Viacom was the one who uploaded the videos, or had someone upload them?
A major point is missing from the story . . . .
As mentioned, as far as I could find, once above, a good portion of the “illicit” content was actually uploaded by Viacom via elaborate schemes through their employees. Although, not saying that content did not make it up there otherwise, Viacom tried to set up YouTube and got caught [sic]. Large media companies for decades have seen themselves as all being and doing without repercussion. That is what needs to change and I pray that this decision is a firm beginning. But that does not seem to be a discussed factor in this story or the case. As in an unrelated story where Mick Jagger talks about making money from records. The large media companies have an unnatural strangle hold on the industry. This has been a note of contention for decades. But never really addressed to meaningful conclusion.
wrong again, as usual
Mike,
You’re wrong on copyright issues… once again.
Fricklas (whom I do not know personally) is neither dishonest nor naive. On the contrary, he is acting both savvy and truthful in stating that Viacom’s objective lies at the appeals court level (or above), where a judge has more latitude to change the law instead of merely applying facts of the case to the existing law. The judge in this case simply found that there was no dispute on the facts, and therefore the existing law should apply.
Changing the law is what Viacom really wants. Being found right on the facts of this case at the lower court level would take away Viacom’s opportunity to try for changes in the law that would require service providers to be more proactive about policing copyright. I am neither agreeing nor disagreeing with this intention; I am simply calling it out for what it is. See http://copyrightandtechnology.com/2010/06/23/google-wins-summary-judgment-against-viacom/ for more details.
Re: wrong again, as usual
You’re wrong on copyright issues… once again.
Funny then, that the courts seem to agree with me.
But, Bill, you and I have our differences, and if I remember correctly, you posted a blog post insisting that Viacom would obviously win this case.
Perhaps you are in denial too?
Fricklas (whom I do not know personally) is neither dishonest nor naive. On the contrary, he is acting both savvy and truthful in stating that Viacom’s objective lies at the appeals court level (or above), where a judge has more latitude to change the law instead of merely applying facts of the case to the existing law. The judge in this case simply found that there was no dispute on the facts, and therefore the existing law should apply.
In other words, you are admitting that I was right. Fascinating.
Changing the law is what Viacom really wants. Being found right on the facts of this case at the lower court level would take away Viacom’s opportunity to try for changes in the law that would require service providers to be more proactive about policing copyright. I am neither agreeing nor disagreeing with this intention; I am simply calling it out for what it is.
Wait, you’re suggesting that Viacom lost on purpose? No offense, Bill, but that’s the dumbest suggestion I’ve heard so far.
Re: Re: wrong again, as usual
1. Show me where I ever posted anything that said Viacom would “obviously win this case”. I posted no such thing anywhere. I would never say any such thing.
2. You were right on the outcome of the case but wrong on the implications.
3. No. They can’t “lose on purpose,” otherwise they run into legal problems that fall outside of the area of copyright. It’s also possible that they would not have minded collecting substantial monetary damages from Google, but that would not have been their preferred outcome.
Listen, Mike, you’re an eloquent writer, which is why you get the traffic you do. But you just don’t know what you are talking about when it comes to copyright law. You do your readers a disservice. It really saddens me to see your readers deluded by your lack of knowledge.
Ask anyone you like – someone at the EFF, Public Knowledge, Larry Lessig, pick your favorite copyleft icon. They will most likely disagree with Viacom’s strategy or find it reprehensible, but they will acknowledge that what I have described is most likely Viacom’s strategy.
Furthermore, would you really expect Viacom to issue a press release saying “We are saddened by the court decision. We’ve obviously lost, so we’ll just pack up and go home”?
Re: Re: Re: wrong again, as usual
Bill,
First of all, despite your assertions, I do talk to copyright lawyers all the timed they seem to agree with my general take on this. If you look at the various discussions on this there are many who feel these way I do.
Second, we actually do agree that Viacom *wants* to change the law, but it is a ridiculous assertion that the best way to do so is at the Appeals court. The court interprets the law, not makes it.
This case was going to the Appeals court one way or the other, but in no world does that make Fricklas’ statement any less misleading.
Re: Re: Re:2 wrong again, as usual
“The court interprets the law, not makes it.” Nope, that’s an idealistic and naive view of what happens. Supreme Court: Betamax, Grokster. Appeals court: Napster, Reimerdes, Aimster, etc., etc. Viacom has decided that it isn’t going to get its desired result through direct lobbying of congress, so it’s going this route of litigation.
Re: Re: Re:3 wrong again, as usual
Nope, that’s an idealistic and naive view of what happens. Supreme Court: Betamax, Grokster. Appeals court: Napster, Reimerdes, Aimster, etc., etc. Viacom has decided that it isn’t going to get its desired result through direct lobbying of congress, so it’s going this route of litigation.
Funny. Whenever I complain about court rulings like those, people on your side of the debate say something along the lines of “the courts just interpret the law — if you have a problem with it take it up with Congress.”
Re: Re: Re:4 wrong again, as usual
You keep implying that I am on a “side” in this debate, in particular that I am an apologist for Viacom. I am not, except possibly to the extent that I assume that a company like Viacom acts in its shareholders’ interests, unless I see evidence otherwise. I see no such evidence here. If anything, I am on the “side” of trying to explain what Viacom’s actual strategy is, as opposed to what you and a few others ignorantly impute it to be.
If you have really been following this issue, you would know that the media industry as a whole has decided not to lobby Congress for the changes in the law that would require ISPs and website operators to take a more proactive role in policing copyright infringement, because – presumably – they do not find enough receptive members of Congress, Congress is too busy with (let’s face it) more important matters to want to pay attention, or whatever. The media industry is not pushing for legislation in the US that is analogous to the “three strikes” legislation passed in France, South Korea, and a few other countries (and possibly the UK soon). (I know this to be true because people like Fritz Attaway of the MPAA said so on a panel on this subject at my conference two weeks ago.)
Instead, Viacom is hoping for a result tantamount to Grokster, which established a new class of infringement liability (inducement), which in turn was just invoked against LimeWire. The other side of the issue, in contrast, is hoping simply to reaffirm DMCA 512 as it is, which is a safer bet at the lower court level than it is at the appeals or Supreme Court levels.
You’re right – this case would have ended up being appealed no matter who won – if only because of the money at stake and the legal fees already spent. But in this case, Viacom would not have embarked on this enormous litigation in the first place if they weren’t hoping for a result that changes the legal landscape instead of just a large number of shekels from Google.
Re: Re: Re:5 wrong again, as usual
If you have really been following this issue, you would know that the media industry as a whole has decided not to lobby Congress for the changes in the law that would require ISPs and website operators to take a more proactive role in policing copyright infringement, because – presumably – they do not find enough receptive members of Congress, Congress is too busy with (let’s face it) more important matters to want to pay attention, or whatever. The media industry is not pushing for legislation in the US that is analogous to the “three strikes” legislation passed in France, South Korea, and a few other countries (and possibly the UK soon). (I know this to be true because people like Fritz Attaway of the MPAA said so on a panel on this subject at my conference two weeks ago.)
We agree on that. In fact, I’ve written that very point multiple times right on this blog.
Instead, Viacom is hoping for a result tantamount to Grokster, which established a new class of infringement liability (inducement), which in turn was just invoked against LimeWire. The other side of the issue, in contrast, is hoping simply to reaffirm DMCA 512 as it is, which is a safer bet at the lower court level than it is at the appeals or Supreme Court levels.
Again, something we have written about multiple times and are quite familiar with.
You’re right – this case would have ended up being appealed no matter who won – if only because of the money at stake and the legal fees already spent. But in this case, Viacom would not have embarked on this enormous litigation in the first place if they weren’t hoping for a result that changes the legal landscape instead of just a large number of shekels from Google.
None of which makes what Fricklas said any more misleading or incorrect.
I’m sort of at a loss at what you’re arguing here. You’re claiming that Fricklas is being misleading because he’s hoping that Viacom can win, despite what the law says. We agree on that. But it doesn’t change that what he’s saying is misleading and incorrect under the law.
Re: Re: Re:6 wrong again, as usual
Mike,
I give up. Everything you say in the above belies things you have said earlier in this exchange.
If you climb several levels out of the rathole, you find that my original argument was very simple: Viacom is not “in denial;” Fricklas is not “dishonest;” nor is he “naive.” I’ve shown all three. That’s it.
Re: Re: Re:7 wrong again, as usual
If you climb several levels out of the rathole, you find that my original argument was very simple: Viacom is not “in denial;” Fricklas is not “dishonest;” nor is he “naive.” I’ve shown all three. That’s it.
I still don’t see that given his statements. His claims that this is about copyright law or about Google/YouTube “stealing” videos are simply wrong. It was about the proper application of liability.
Even if he wants to change the law, his statements are still misleading.
Re: Re: wrong again, as usual
Mike,
P.S. Here are two more reasons why I know Viacom’s strategy is as I describe. Don’t take my word for it:
1. The lead outside litigator for Viacom (Don Verrilli of Jenner & Block, now working in the Obama administration) implied this in his remarks on a panel in March 2007, about a week after the litigation was filed. If you want to go look it up, it was the Progress and Freedom Foundation (pff.org) “What Goes Up Must Come Down” panel in Washington. I was on this panel as well.
2. Jonathan Zittrain of Harvard Law School gave a speech at a New York Bar Assoc. conference in Oct 2008, after the Google publishing settlement was announced, saying the same thing. As he put it, the “gravamen” in these cases is who has to pay for the technology that does the policing of content on these networks. Under current 512 law, the copyright owner has to pay antipiracy services like BayTSP millions of dollars to identify content and send takedown notices. The media industry would prefer that sites like YouTube adopt technology that is not only proactive but that they have to pay for themselves. Mandating this would require the change in the law that media companies like Viacom seek. Viacom can’t get this under current law; hence they want the law changed, which they can’t achieve at the district court level.
wrong again, as usual
So you had a side, then?