2.25.10 GOOTUBE

This article originally appeared in the 2.25.10 issue of Metroland.

The YouTube / Viacom lawsuit, which has going on for so long I’d forgotten about it, bubbled up again last week when both sides filed summary judgment papers in federal court in San Francisco. Viacom (the media giant that owns cable networks like Comedy Central, MTV and BET along with movie studios, etc.) is suing the bejesus out of YouTube for, in Viacom’s words, operating “as a haven for massive copyright infringement. The lawsuit was brought, curiously or not, just a few months after Google bought YouTube for 1.7 billion smackeroos. Viacom is seeking a billion dollars in damages.

The filings reveal a lot of the kind of litigational nonsense one would expect from corporate behemoths going the scorched earth route. For example, YouTube seems to have “lost” a great deal of internal emails that would otherwise be relevant in the case. One reason they gave is “computer crashes.” Whoopsy! Viacom, on the other hand, has included in its briefs a bunch of quotes of YouTube bigwigs that look incredibly damning, but YouTube has responded by providing the entire communications from which the quotes were taken; time after time it’s clear that Viacom has wildly and deliberately misrepresented what the bigwigs were saying.

The practice of taking words totally out of context is something I see in litigation all the time, and I’ve never been able to get my brain around why lawyers do it, or why courts tolerate it. It’s usually simply a matter of the other side jumping through a few hoops to prove the deception, and the side responsible for stretching the truth to the breaking point runs the risk of looking bad. But they rarely do, as judges typically consider these kinds of shenanigans fair game. I suppose the offending lawyer figures there’s some chance the misquote will not be challenged, or that maybe some judge or juror will get duped into buying the lie, or at the very least that the making of the deceptive argument will burn up the other side’s resources in having to counter the lies with facts. As far as I’m concerned it’s a hideous practice that advances neither the truth nor justice, it wastes all kinds of time and money, and it’s one of the justifiable reasons why people hate lawyers.

Anyway, what all these court papers also show is that Viacom really doesn’t have much of a case. Web portals like YouTube are protected by the “safe harbor” provisions of a law called the Digital Millenium Copyright Act, which says that YouTube generally doesn’t have to actively monitor what’s being posted on its site. Once the portal is informed that there’s infringing stuff posted, it has a duty to investigate and take down offending material. This merely reaffirms that it’s the copyright owners’ duty to police its copyright, not someone else’s. In other words, it’s Viacom’s job, not YouTube’s.

This makes perfect sense. Because often the copyright owner is fine that their stuff has been posted without permission. A few years ago I noticed that folks had posted Blotto’s old videos on YouTube. My reaction was “great, now I don’t have to do it.” I’d been meaning to do it myself but was too lazy to figure out how. We wanted the videos up, for whatever promotional value they might bring. Somebody even posted “Lifeguard” under the heading “Worst 80’s Video Ever.” It’s closing in on a quarter-million hits, and the comments are amazing. And I ain’t touchin’ it.

And I’m certainly not alone here. Lots of copyright owners turn a blind eye to “unauthorized” posts. In fact, Court papers filed by YouTube show that Viacom, while screaming bloody murder about “massive infringement” on YouTube, was at the same time surreptitiously putting up thousands of its own programs for promotional purposes. Or maybe it was trying to set up YouTube for a disingenuous infringement rap.

Several times a day someone sends me a YouTube link, usually of some old music video that’s brilliant, funny, or revealing, often all three at once. Does somebody own the copyrights to these things? Undoubtedly. Did they put them up themselves? Maybe, maybe not. And are they mad that their stuff’s on the internet? Probably not. They’re probably delighted.

In any event, in the lawsuit Viacom is trying to create an affirmative duty on the part of YouTube, and every other internet portal to actively monitor everything that comes its way and to block “obviously copyrighted” material posted by a non-owner, basically eviscerating the safe harbor protections that allow all kinds of cool stuff to get put on the internet. If they win, there will be a lot less stuff to enjoy on the internet, and a lot fewer places to enjoy them.