iFilm Infringement Could Blunt Viacom's YouTube Argument 119
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 (Score:2, Insightful)
do (Score:4, Insightful)
Re:I dont see this as an issue... (Score:5, Insightful)
Re:I dont see this as an issue... (Score:5, Insightful)
I don't agree (Score:3, Insightful)
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'm confused (Score:2, Insightful)
Re:Skeletons (Score:3, Insightful)
Re:I dont see this as an issue... (Score:4, Insightful)
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:do (Score:5, Insightful)
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:Skeletons (Score:5, Insightful)
Re:So what are they really after? (Score:2, Insightful)
Shouldn't this be handled via the WPIO?
http://www.wipo.int/members/en/decision_bodies.ht
Re:Skeletons (Score:3, Insightful)
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:I dont see this as an issue... (Score:3, Insightful)
http://www.google.com/search?q=youtube+license+fi
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:If Google bites, it's good for Viacom... (Score:5, Insightful)
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.
Re:do (Score:3, Insightful)
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 that they do not take the kind of precautions they are demanding of the competitor they are suing.
Re:Skeletons (Score:1, Insightful)
Re:I don't agree (Score:2, Insightful)
I'm not sure the judge will or should accept a tu quoque ("you're one too") argument.
Although the fact that Viacom's iFilm also has others' copyrighted material on it, there are other ways of using that information in court. Google could use this information to strengthen their position of the safe harbor provisions by pointing out the "fact" that Viacom currently uses such provisions on its own competing service. I very seriously doubt that Viacom would admit on record that it intentionally violated another's copyright, as this could be used in criminal charges against Viacom, could it not?
And, if Viacom claimed that the presence of such material on their service was not known to them, and that their policy would be to remove it when the fact of infringement has been verified, then Google could use the same argument in the court that they uphold similar policies and that Viacom did not utilize due diligence in notifying Google/YouTube of the existence of such material on their service.
I'm not saying Viacom has to defend its IP to keep its rights.
I believe my above statement touches upon this. Google is protected under the safe harbor provisions provided that they do three things. The safe harbor requirements are and provisions, not or provisions. Thus, Google/YouTube must meet all three requirements of the safe harbor provision to be protected. These provisions are:
`(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
`(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
`(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
`(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
`(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
C. if Viacom did not issue a take down notice, then Google/YouTube has met with the DMCA requirements and Viacom did not conduct due diligence in protecting its IP under the safe harbor provisions of the DMCA. If Viacom did send the takedown and it met with the requirements in paragraph 3 of section 512, then Google is doomed.
A. if Viacom, again, did not send a take down notice, then Google is in the clear through their non-policing policy, thus they would not be aware of such activity without due diligence on behalf of the copyright owner.
Here is where Viacom is evidently making its claim:
B. Google/YouTube has in fact received financial gain through its service. I believe that this fact will not be disputed. However, the provision requires that the service provider must have the right to control the infringement (which they do). This may be defended, however, by the lack of due diligence of Viacom with regards to provision A. But, there is a second AND requirement to fall outside the safe harbor provision. The service provider must also have the ability to control the infringing activity. Because of Google's policies of non-policing the users' uploads, Google/YouTube is reliant upon Viacom's due diligence in policing it's own copyrighted works. The DMCA already contains the legal provisions for a rights holder to protect and police its works. However, again, Viacom seems to show a lack of due diligence.
I believe this is where the case will ride: whether or not an OSP is required to police its users' activities. As far as I know, the DMCA
Re:Skeletons (Score:2, Insightful)
Re:Skeletons (Score:3, Insightful)
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 Youtube is right, and Viacom is wrong, despite the fact that both are simply trying to make money.
Re:Skeletons (Score:4, Insightful)
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.