iFilm Infringement Could Blunt Viacom's YouTube Argument

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.'"

Skeletons

Does it really surprise anyone that Viacom has skeletons in its own closet?

Re:Skeletons

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...

Re:Skeletons

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

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.

do

Do as I say, not as I do...

Re:do

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.

Re:do

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

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.

IANAL, but..

Viacom is suing YouTube for infringing on Viacom's copyright. Viacom is not infringing on its own rights on iFilm. If other people aren't happy w/ iFilm's infringing contents, let them sue Viacom. Two wrongs don't make a right.

Re:IANAL, but..

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.

Theres just one issue I have with that argument

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. The article aknowledges YouTube has many more infringing content.

I'm confused

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:I'm confused

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...

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

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.

Re:I don't agree

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

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.

So what are they really after?

Citing the $1.65 billion that Google paid for YouTube, the complaint said that "YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value." The complaint was filed in United States District Court in New York. The lawsuit is the clearest sign yet of the tension between Google and major media companies. With its acquisition of YouTube, Google had high hopes of becoming a central distribution point for online video, dominating the field just as Apple's iTunes Store leads the market for digital music.

Shouldn't this be against the two that created YouTube? Seems all of the parties involved are violating another patent by having websites period

United States Patent 7191189
Abstract:
A method or apparatus of organizing data in a storage device includes receiving data in the storage device, and transforming the received data into a first data object. The first data object is stored in a hierarchical data structure, the hierarchical data structure containing plural levels of data objects.
http://www.freepatentsonline.com/7191189.html [freepatentsonline.com]

Viacom should get over the fact that Google bought YouTube and think of another way to strangle the masses for a buck.!

Golden rule won't apply

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.

irrelevant

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.

Boggles the mind

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 eventually DVDs of their favorite shows.

Now everyone's up in arms over copyright infringement on the Internet. They need to get with the program. If you don't want people posting these things to YouTube/iFilms, then post it yourself! Make it easily accessible and readily available. Charge a subscription and then over subscribers video clips from their shows they've never seen, or short video pieces that were made for the Internet. And get over it! Once you're product goes out into the market, that's it. You can scream "copyright infringement" all you like, but people are going to record, copy, and share your material whether you like it or not. So find a way to cash or shut up.

Daily Show RSS Feeds for iFilm Site

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]

If Google bites, it's good for Viacom...

While this is embarassing for Viacom, the unfortunate (for Google) reality is that if Google bites on this and points it out, it's bad for Google.

Google's big defense right now is the safe harbour provisions in the DMCA. Their legal argument is, they aren't required to put in safeguards so they can't be held liable for not doing so. If they, in some motion brief, go and point out that Viacom isn't safeguarding and how hypocritical that is, 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".

Re:If Google bites, it's good for Viacom...

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.

One wonders why, but only for a short time.

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.

Again...

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

The real reason for the suit

Viacom's iFilm is a direct competetitor to Google's YouTube. And I thought Microsoft was evil! This is a case of a company suing its competetitor for legal ("safe harbor") standard industry practices that they use themselves. Pretty damned sleazy. Worse than Microsoft (not as bad as Sony, at least they didn't root my box!)

Unlike most here, I read the above comments and must say that most of you guys are so full of crap it's coming out of your ears. I'm getting pretty damned tired of hearing copyright infringement referred to as "thieft". It is NOT thieft; not in the US, any way. The idea of "intellectual property" is, in the US, unconstitutional [cornell.edu] (Article 2 section 8). Nobody owns a creative work, not even its creator. You own NOTHING. What you posess (not "own") is is a limited time monopoly on copying, NOT the work itself. I do not own the song I just wrote this morning, I only own the right to copy it.

Intellectual "property" is a damned lie. It is not property in any sense of the word.

Unauthorized reproduction of a copyright work is illegal, but it is not theift any more than smoking pot is thieft (unless you stole the dope). Shoplifting a CD is thieft; posting it to Kazaa is not.

The (foreign owned) multinational corporations like Sony and Viacom want you to believe that freedom is slavery and war is peace. Orwell's 25 years late. Smile, you're on corporate-sponsored candid CCTV camera! Big corporation is watching you! And you fucking morons defend the evil Satan-worshiping sons of bitches. WTF is wrong with you????

Protest Viacom

Protest Viacom
Upload infringing content to iFilm.

Well, someone has to say it.

This lawsuit doesn't matter

This lawsuit will not set any legal precedent because it will be settled out of court. Why? Because it's simply a negotiation tactic by Viacom to get more from Google. The other content companies have already signed revenue sharing agreements; Viacom wants the same but more with more money. Viacom thinks that this lawsuit a way to convince Google that YouTube needs to pay more.

Copyright

The copyright is enshrined in our history with the noble goal of "encouraging the progress of science and the useful arts." Unfortunately its real goal was to protect the investment in mass manufacure and distribution technology of the Printer's Guild, who controlled the presses - now the the entities who get the most out of copyright haven't created much of anything but plastic and paper - for the same reason. The availability of free content on the Internet is proof positive you don't need an economic incentive to get humans to create. The concept was never true to its goal and has become pretty unworkable in an age where the the "tangible medium of expression" requirement of copyright includes ephemeral media such as RAM and magnetic drives.

Re:I dont see this as an issue...

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:I dont see this as an issue...

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...

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...

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.

Re:I dont see this as an issue...

It also means, if they win, the are setting good precedence for the people who want to sue them