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iFilm Infringement Could Blunt Viacom's YouTube Argument

Posted by Zonk on Tue Mar 20, 2007 11:18 AM
from the throwing-stones-glass-houses-you-know-the-drill dept.
The Internet Businesses Media
Radio Silence writes "Infringing videos on iFilm could undermine Viacom's case against YouTube. Although it's arguably not a nest of infringement like YouTube, iFilm appears to host more than a handful of videos for which its corporate parent Viacom does not own the copyright. More importantly, Viacom isn't engaging in the kind of proactive infringement identification practices it expects of YouTube, which may cause problems for them in court. 'if Viacom isn't willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case. "It would have some persuasive value with a judge if YouTube says 'look, they're ranting and raving about all this infringement occurring on my site and they're not doing anything about it themselves,'" said copyright attorney Greg Gabriel.'"
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  • Does it really surprise anyone that Viacom has skeletons in its own closet?
    • Forget the closet, Viacom has skeletons in its boardroom

    • Re: (Score:3, Insightful)

      by Seumas (6865)
      I don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrig

      • Re:Skeletons (Score:5, Insightful)

        by Nwallins (1059978) on Tuesday March 20 2007, @12:02PM (#18416869)

        But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us.
        Interesting form of judgement you've developed there...
      • This is very much about right and wrong. It is wrong to try to prevent competition from people who have analyzed the market and the technological situation better than you have. It is wrong to pretend that something (creative output) is property in order to can prevent this competition. It is wrong to pretend that something (unauthorized copying) is theft in order to prevent this competition. It is wrong to pretend that a technology control measure (the DMCA) is a copyright protection law in order to preven

      • Re: (Score:3, Insightful)

        by arevos (659374)

        don't really even care. Viacom sucks. So does Youtube. I hope they all somehow fail miserably, even though they probably won't. The world is full of idiots that can watch nut-shots all day long and never get tired of it. But really, Youtube is not "the little guy". Youtube started by a rich kid from a rich family (or at least, he married into wealth) and is now owned by google. It's not like there's some deserving indie guy here working hard for us. If it was profitable for Google to crack down on copyrights, they would do so. This isn't about right and wrong or philosophical points. It's about money.

        The case also may set an important legal precedent, and I suspect that's why most people are interested in the case, because it's likely that the result of this decision will later affect smaller content hosting companies and individuals.

      • Re:Skeletons (Score:5, Interesting)

        by Anonymous Coward on Tuesday March 20 2007, @12:42PM (#18417581)
        Youtube makes money by violating copyrights.

        Incorrect. YouTube makes money by providing users with a medium of information exchange. YouTube does not violate the copyrights, the users who upload copyrighted content do.

        YouTube is further protected from claims of copyright violation by the safe harbor laws of the DMCA. They honor all takedown notices, even when there is doubt. So, they actively obey the letter of the law, and as such do not violate copyright.

        "Violate copyright" is a legal term, not a moral term. Legally, they are not guilty of this, as the courts will demonstrate.

        Whether or not you think it is morally wrong for them to allow their users to upload copyrighted content is an entirely different issue, of course, though I am sure you and I would disagree on that one too.

            • Re:Skeletons (Score:4, Insightful)

              by poot_rootbeer (188613) on Tuesday March 20 2007, @04:20PM (#18421339)
              we hold bars accountable if they serve alcohol to patrons who appear to already be intoxicated

              And what we DON'T do is require bartenders to administer a breathalyzer test to every person who places a drink order, which is what Viacom is saying YouTube should have been doing.
      • Why do I care who started YouTube or who owns it? Is it written somewhere in the emo-hipster code that I can only root for the little guy? I'll root for whomever I want to, whether it is the little guy, or a massively rich corporation. Similarly, if I think you're an asshole, I don't take into account your annual income.

      • Re: (Score:3, Insightful)

        by RexRhino (769423)
        The morality of an action has nothing to do with the intent. If someone thinks they are helping you by kicking you in the head, they are still doing you harm. And if they think they are harming you by curing a disease, they are still doing good.

        In this case, YouTube might be acting to maximize its profits, but the way it is doing so benifits the rest of us. Society is benifited by having a place where it can freely exchange video, and it would be harmed by effectively criminalizing such a service. Therefore

  • do (Score:4, Insightful)

    by gEvil (beta) (945888) on Tuesday March 20 2007, @11:23AM (#18416161)
    Do as I say, not as I do...

    • Re:do (Score:5, Insightful)

      by TubeSteak (669689) on Tuesday March 20 2007, @11:37AM (#18416411) Journal
      FTFA:

      Viacom responded with the following statement: "Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site." A search using the term "NBA Brawl," however, returns a number of clips of televised footage of both NBA and college football fights and it is not clear that Viacom owns the copyrights on those clips
      Wow... what damning evidence of Viacom's infringement.

      In fact, it looks a lot like what one would find on YouTube.
      Right Ars, a small fraction of YouTube involves sports brawls.
      Now show me on iFilm where I can watch a season of [TV show].
      If Ars can't do that, they're just being asinine.
      • How do you figure? The way I see it, it's not about what's on the sight, it's about the procedures used to determine what goes on the site. If Viacom is asking Youtube to do something that they themselves are unwilling to do, it absolutely will have an impact on the trial. Viacom is claiming they are screening, yet there is proof that their screening is not working.

      • Re: (Score:3, Insightful)

        by Red Flayer (890720)

        Right Ars, a small fraction of YouTube involves sports brawls.
        Now show me on iFilm where I can watch a season of [TV show].
        If Ars can't do that, they're just being asinine.

        Why? Substantive infringement is substantive infringement, regardless of scope.

        And as for a small fraction of iFilm video being copyrighted sports brawls, it's only a small fraction of Youtube that's a full season of copyrighted television shows.

        In a civil suit such as this, Viacom definitely has a problem if it can be demonstrated

      • Re:do (Score:5, Funny)

        by Fordiman (689627) <{fordiman} {at} {gmail.com}> on Tuesday March 20 2007, @01:03PM (#18417959) Homepage Journal
        Where on YouTube can I watch a season of [TV show]?

        'cos seriously, I've been using this bit torrent thing, and it's just too damned much trouble. All this uncut high quality fullscreen video scares me. Give me five hundered blurry ten-minute clips in a tiny little subscreen any day; that I understand.

    • Re:do (Score:4, Interesting)

      by crankyspice (63953) on Tuesday March 20 2007, @11:37AM (#18416421)
      I imagine Viacom is seeking injunctive relief against YouTube (i.e., "don't do that anymore, that's an order!"), which is an equitable remedy. One of the main tenants of equity is "he who seeks equity must do equity," that is, you have to show up with "clean hands." Could be interesting.
        • Your analogy using a speeder is worthless

          Pointing out the law may not apply to "some animals more equal than others" is not worthless. It breeds contempt for the law.
  • I believe the law takes things case by case.

    The judge should see if the first has a case, and tell the other "if you want them to do the same thing, you need to sue them".

    If I hit someones car with mine, and then they hit my car, I can certainly file a claim. If they want damages, they need to file back. They can't just say "we both hit eachother so theres no claim at all". Sure the damages might be equal, but most likely not... for instance, comparing YouTube to Ifilm are not equal at all in infringement.

    • Re: (Score:3, Informative)

      by Dorceon (928997)
      The key thing here is Judicial Estoppel. Anything Viacom says in court in their case against YouTube, they cannot contradict when they are the defendant in someone else's suit against Ifilm.
  • Is it reall a valid argument to say "See, the guys that are suing us for breaking the law are breaking the law too?" Doesn't that make both of them guilty, rather than let You Tube off the hook? Personally I think the whole suit thing is more than a little bogus, but it doesn't make sense to me that this argument hold true...

    • Re: (Score:2, Insightful)

      by chalkyj (927554)
      YouTube can, however, say "What you're asking for is unreasonable. Sure, you claim it's reasonable, but you're not even willing to do it on your own site and yet you expect us to?" - which does seem to be a valid argument.

    • Re:I'm confused (Score:5, Informative)

      by j00r0m4nc3r (959816) on Tuesday March 20 2007, @11:38AM (#18416427)
      I think it's more like, "Your honor, the industry standard is to not self-police your sites. It's a public site and people can upload copyrighted material. All Viacom has to do is tell us which items are infringing and we can remove them. See, even Viacom doesn't self-police themselves on iFilm..."
      There's sort of a fine line between the two...

  • This just in... (Score:4, Funny)

    by rizzo320 (911761) on Tuesday March 20 2007, @11:31AM (#18416299)
    iFilm has been purchased by Google, and is now being sued for $1 billion by Viacom. Film at 11... (oh wait its copyrighted by Viacom, never mind!).

  • I don't agree (Score:3, Insightful)

    by hey! (33014) on Tuesday March 20 2007, @11:32AM (#18416327) Homepage Journal
    I'm not sure the judge will or should accept a tu quoque ("you're one too") argument. If A steal's B's car, and B steal's C's car, A is not off the hook for car theft.

    I think more to the point is the question of when Viacom became aware of YouTube, and what steps they took when they found out. Even if Google is found guilty of violating DMCA, if Viacom didn't take reasonable looking steps (e.g. using DMCA takedowns), Viacom is going to have a hard time arguing astronomical damages.

    I'm not saying Viacom has to defend its IP to keep its rights. I'm saying that if their actions look like they weren't all that concerned, it makes the notion they lost a billion dollars worth of revenue a bit hard to swallow. If Viacom was issuing takedowns like made, and just couldn't keep up with the new postings, it might be credible.
    • The "Nuh uh! He did it too!" defense usually only works if the judge is an 10-year-old boy.

    • Re:I don't agree (Score:5, Interesting)

      by gurps_npc (621217) on Tuesday March 20 2007, @12:55PM (#18417819)
      Your claim is not fair.

      The argument is not "You're one too".

      Instead it is:

      This is a new technology. What is legal and illegal has not yet been clearly declared.

      You yourself are doing the same activity that you are claiming is illegal.

      If you REALLY thought it was illegal, you would not do it yourself.

      You are just trying to get us to stop competeing against your own legal actions, not actually claiming we are breaking the law.

  • It would be better (Score:3, Informative)

    by teflaime (738532) on Tuesday March 20 2007, @11:38AM (#18416423)
    if YouTube could say, "We take proactive steps to limit infringment, and respond within our stated guidelines to complaints of infringement. Viacom does neither." YouTube could be seen as coming up short on the limit side...They do, however, as far as I can tell, jerk videos pretty quickly upon a claim of infringement.
  • Our own government prosecutes pornographers while overseeing the sale and rental of porn [theagitator.com]. Consistency was never a virtue of any standing government in modern times.
  • You can be both a "thief" and a victim of "theft". I am not saying that YouTube is engaging in theft. I am simply saying that the fact that Viacom is engaging in behavior more egregeous than the one of which it is accusing YouTube does not in any way change the fact of whether or not YouTube is stealing or even harming Viacom. Just so we are clear, harming someone who is harming someone else is still harmful and unlawful.

  • Being someone who uses neither YouTube or iFilm for his viewing pleasure, it amazes me how much consternation the idea of copyright infringement causes in the marketplace. Remember the VCR? That was supposed to spell doom for television -- people would now tape their favorite shows and watch them endlessly, and wouldn't watch re-runs on TV. Duh!!! It then dawned on the networks that this could be turned to their advantage, because fans of shows would gladly buy merchandise, special video mixes, and eventual

  • Daily Show RSS Feeds for iFilm Site (Score:3, Interesting)

    by reifman (786887) * on Tuesday March 20 2007, @11:57AM (#18416767) Homepage
    iFilm doesn't have RSS feeds for Daily Show episodes or Colbert Report. I've put together these two feeds using Dapper and Feedburner: Daily Show Clips on iFilm (http://feeds.feedburner.com/DailyShowiFilm) [feedburner.com] Colbert Report Clips on iFilm (http://feeds.feedburner.com/ColbertReportiFilm) [feedburner.com] Link to blog entry on this [idealog.us]

  • One wonders why, but only for a short time. (Score:5, Interesting)

    by The-Bus (138060) on Tuesday March 20 2007, @12:04PM (#18416915) Homepage
    I always wonder why companies rail against this "pirating" on YouTube which is predy ridiculous since YouTube is not and, in its current format, will never be a replacement for mass-market television. The problem is that if YouTube gets away with it, so can others. So they have to squash YouTube infringers, even if it's not really a threat.

    The media companies themselves aren't stupid. Look at the All-Time Most Viewed on YouTube [youtube.com]. We've got OK! Go (a band signed with Capitol Records/EMI, an RIAA member), Nike, SNL (NBC), My Chemical Romance (a band with Reprise, a Warner Bros. label, also an RIAA member). Record labels are on it, production companies/ film studios, and a heck of a lot of networks. Here's a short list of partners [youtube.com].

    YouTube (and sites like it) should be treated a bit different than the Napster of old. It holds a lof of other advantages over "old piracy", all of which is extremely useful to owners of the copyright:
    • Not a worthwhile copy of the real thing. YouTube (as it is now) could never replicate seeing a movie in theatres, or on DVD, or even on cable. The quality is acceptable enough for its free price, but that's about it. Unlike pirated software copies or (to most people) MP3s, this is not a true "copy" of the product you sell.
    • Tracking, tracking, tracking. YouTube collects age and sex information. I don't know if they record this for each video being viewed, but what if CBS suddenly learned that one of its shows seemed extremely popular with females over 50? Let's say it was a show they didn't expect to fit that demographic (like the military drama The Unit). Maybe this will help them sell more advertising.
    • YouTube is soft DRM. It's easier to distribute a link to a file on YouTube than it is to distribute the file itself.


    There's a lot more to this, of course. But networks (finally!) aren't being total idiots. As far as I know, the three major networks (ABC, CBS, NBC) all let you stream shows for free through their sites. Other networks may be doing the same thing (to some extent, Cartoon Network's Adult Swim, Comedy Central, and the Sci-Fi channel do this). I don't think YouTube is the be-all and end-all in matters of online media. I'm speaking alot about them just because they're referenced in the article and they're the 'Video_blog Portal 2.0' (or whatever) that I'm most familiar with.

    It gives me some hope that user response seems about as positive as Napster and the media conglomerate's response has been a hell of a lot more tempered; consumers get content for free, media creators/owners/distributors lose less control. Sure, crazy DRM schemes still pop-up, but this gives me hope that we're progressing positively. I'll take non-intrusive DRM as long as it does no harm and I get content for less (or free), not for the same price or more.

  • ...all are equal, just some are more equal than others. At least a variant of it. :)

    • Re:I dont see this as an issue... (Score:5, Insightful)

      by FasterthanaWatch (778779) on Tuesday March 20 2007, @11:28AM (#18416243)
      Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.

      • Re: (Score:3, Insightful)

        by TubeSteak (669689)

        Keep in mind this is not the "they did it too!" defense. This is the "What you're asking is unreasonable, see even your own company can't comply!" defense.

        Maybe you're not aware that YouTube already filters uploads, but only for licensees.
        http://www.google.com/search?q=youtube+license+fil tering [google.com]

        As I've said before, even though I think Viacom is on the wrong side of the DMCA, the fact that YouTube can and does filter may cause Viacom to win some of its civil claims.

    • Re:I dont see this as an issue... (Score:5, Insightful)

      by omeomi (675045) on Tuesday March 20 2007, @11:29AM (#18416265) Homepage
      That would be true if they were suing for something that was obviously illegal in the first place. However, it's important because they're trying to argue that something ambiguously legal is actually illegal. The DMCA has a provision that indemnifies companies like Google from lawsuits if users upload copyrighted material. All they're required to do is take it down once they've been notified, which they have been doing. Viacom is arguing that they shouldn't have to police YouTube, and that Google should be pre-screening content. What they're essentially saying is that the "Safe Haven" clause of the DMCA is not legal. But if they're doing the exact same thing, it makes it much harder to argue.

    • Re:I dont see this as an issue... (Score:5, Interesting)

      by Anonymous Coward on Tuesday March 20 2007, @11:30AM (#18416285)
      Your argument would be true if there was some law that would require YouTube to install filters. However, Viacom is asking a court to order GooTube to do this as a matter of public policy. When making considerations about public policy, judges would probably be persuaded by the argument that if it's too burdensome for the plaintiff to do it, why should the defendant do it when there's no law mandating it?

    • Re:I dont see this as an issue... (Score:4, Insightful)

      by Jah-Wren Ryel (80510) on Tuesday March 20 2007, @11:33AM (#18416351)

      I've never been impressed with the "they did it too!" defense.

      Good thing you are not the courts then. Because, "they did it too" is one of the primary defenses against assault with a deadly weapon -- if some guy is punching you in the face, then you have justification to hit back with anything you've got. If he was just standing there, doing nothing, then you've got no justification to assault him.
      • There is a significant difference though. In the case when someone is assulting you, there is an expectation that you should be able to defend yourself and any type of assult done in defense would be justifed. With ViaCom/Google, if ViaCom is being "assulted" by Google, it doesn't mean that ViaCom can turn around and "assult" someone else. Your example would be better if ViaCom started to share Google-owned videos. But even then both companies would be found to be violating the other's copyright as neit
      • To further on what has been said, you also should keep in mind that the law in most districts only allows for a proportionate response as self defense. If someone slaps you you are not justified in taking out a gun and shooting them (and self defense rules don't apply). In a not-so-extreme version: if someone about your size is hitting you with their fists, you are not justified in using a lethal weapon (knife, broken bottle, etc...).

        There are lots of funny rules about what the different levels are, and the
    • It also means, if they win, the are setting good precedence for the people who want to sue them
    • ...except that the videos this article is on about, are those for which viacom does not hold the copyright.
      Not the ones that it does

      • Re:IANAL, but.. (Score:5, Informative)

        by MsGeek (162936) on Tuesday March 20 2007, @12:07PM (#18416967) Homepage Journal
        IANAL either, but this is the doctrine of unclean hands [lectlaw.com]. It can be used to get the YouTube case laughed out of court. Which it should. Viacom is expecting YouTube to do something Viacom does not do itself on its own, similar website. Buh-bye, Mr. Redstone.
        • Particularly since I believe the wording here involves making 'reasonable' attempts to make sure you dont have anything infringing, and with this to light, Viacom cannot claim that what they want is reasonable.
        • Not exactly. However, it goes to underscore the unreasonability of Viacom's request, and to further illustrate the fact that even the most stringent procedures in this arena will let stuff through. I'm telling you, though, that under Grokster and Sony Viacom doesn't have a chance to win.
    • then Viacom in their reply can say "Oooops, you know, you're right, we're not, our bad, we're sorry, we'll pay reparations. And now, Google, since you've agreed it's a bad thing we've both done, you can pay reparations to us for your infraction too".

      How is it bad for Google if they point out that iFilm became compliant in a way that Viacom did not allow YouTube?

    • Re:If Google bites, it's good for Viacom... (Score:5, Insightful)

      by Overzeetop (214511) on Tuesday March 20 2007, @12:46PM (#18417663) Journal
      Actually, this can still be played in favor of Google.

      Rather than pointing out that "Viacom is breaking the law, too," they will note that Viacom, via iFilm, is also practicing the industry standard which relys upon the safe harbor provisions of the DMCA. Even if iFilm changes its stance, Google can point out that they were all operating under the same expectation of safe harbor, and the Viacom has only recently changed their policies in order to try and unilaterally change the industry standards. The damage is done. iFilm can try and change their operating procedure, but it can be made to look like a political move by a good defense team.

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