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THE GOOGLE SMOKESCREEN – PART TWO

By Michael Fricklas, Viacom Executive Vice President, General Counsel and Secretary

The second round of summary judgment briefs in Viacom's infringement suit against Google has now been filed. Unfortunately, Google's new brief is a collection of ineffective counterarguments that amount to a smokescreen of invented procedural hurdles and absurd attacks.

Rather than focusing on the relevant points of law, the new filings are another attempt to obscure the fact that Google and YouTube turned a blind eye to infringement they could have taken simple steps to stop – steps that they began to put into place only after the filing of our suit – which is an unmistakable violation of copyright law. The evidence is clear:
  • Google and YouTube's leadership was aware of massive infringement on their website;
  • Google and YouTube benefited from these infringements; and
  • Google and YouTube willfully chose to ignore these illegal copyright violations.
Following is an outline of the illegal conduct by YouTube and Google that remains undisputed, an update on recent legal precedents that bear on this case and a sampling of some of Google's latest false and/or irrelevant assertions.

YouTube and Google's Intent to Infringe Remains Central and Undisputed

It is abundantly clear that YouTube and Google knew about copyright infringement on the YouTube site, encouraged it and profited from it. Despite all the noise they try to summon in their brief, these facts are undeniable and are at the core of this case.

In its latest filing, Google effectively admits that it does not dispute dozens of key statements that show illegal intent by YouTube and Google Management to profit from infringement. Among the undisputed facts:
  • YouTube founder Steve Chen wrote in a discussion about whether to remove copyrighted material: "we should just keep that stuff on the site. I really don't see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down."
  • In a memorandum to YouTube's Board of Directors, YouTube founder Jawed Karim explained: "As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube's popularity."
  • YouTube manager MaryRose Dunton explained to another YouTube employee that "so *technically* if you even perform a copyrighted song, it's considered infringement. but we can leave this up until someone bitches."
These uncontested facts – among many others – reveal the thrust of YouTube's (and Google's) illegal strategy: keep infringing material on the site as long as possible so as to maximize revenue from the infringement until a take–down notice arrives.

Google also tries to backtrack on the assessment its own employees made about YouTube. In 2006, Google described YouTube as having "mostly illegal content (copyright infringing but not porn)." Google now says that this assessment was merely a "draft" and "speculation," but in its response, does not provide a final or contradictory version.

May 2010 Legal Ruling Adds Another Dimension of Precedent to YouTube's Liability

Just two weeks ago, the Federal Court for the Southern District of New York – where the Viacom v. YouTube case is pending – weighed in on a similar issue. In Arista Records v. LimeWire, the Court found that online services that operate with the intent to infringe are indeed liable for the infringement that takes place using their service.

Like LimeWire, Google is demanding the right to profit from massive infringement that it was fully aware of, that it chose to foster, and that it did nothing to stop.

Google Falters Trying to Explain Its Failure to Filter

Google is the world's leading search engine with a self-proclaimed mission to organize the world's information. However, when it comes to videos on YouTube, Google cynically claims that search is too difficult for them to execute effectively. The fact is that Google could have stopped the infringement on YouTube by using filtering software, a technology similar to search. In the period covered by this suit, filtering was neither a pipe-dream nor a burden: YouTube was offering filtering in 2006, but only for its content partners.

Viacom repeatedly told Google that it wanted to work together to filter out infringing videos. But Google's response was that unless we partnered with Google – that is, licensed works to Google at business terms dictated by Google – Google was going to withhold filtering. This was more than tough negotiation – it was blackmail.

Google now claims that it offered Viacom filtering without conditions in February 2007. But, it can point to no facts to support this claim because none exist (except for a self-serving declaration filed with its most recent papers). In truth, Google insisted on a license in order to offer protection from infringement on its site. Here is Google in its own words:
  • Google's vice-president of content partnerships wrote in February 2007 that YouTube's "Audio fingerprinting system . . . [is] now live as well and [is] only offered to partners who enter into a revenue deal with us."  Hohengarten Ex. 144 (emphasis added).
  • On February 3, 2007, the New York Times reported that Chad Hurley, the co-founder and chief executive of YouTube, said the company would discuss filtering, but only as part of a broader deal. [NB: "Viacom tells YouTube: Hands Off" 2/3/2007]
The DMCA sets out a shared duty to limit infringement. YouTube's refusal to accept responsibility for their important role under the law discourages fair competition, discourages innovation and discourages investment in technology, distribution and content itself. Furthermore, the Court in the LimeWire case held that the "[f]ailure to utilize existing technology to create meaningful barriers against infringement is a strong indicator of intent to foster infringement." Google should be held to account for withholding filtering software for Viacom's intellectual property.

Lacking a Meritorious Defense, Google Serves Up Spam

Google can't deny the infringement that took place or its failure to stop it. So instead, it raises a host of irrelevant or false claims that wouldn't make the first page of a typical Google search. Here's a sampling:
  • Google claims there is no support for Viacom's statement that its most popular brands, programs and films are "famous," or that we own the copyrights to this programming. The evidence is clear and obvious. And more to the point, Google has failed to specifically dispute ownership of more than 99.99% of the works at issue in this case.
  • Google claims it could not tell whether Viacom had authorized specific clips on YouTube – and misleadingly and falsely implies that we're suing on clips we posted. The reality is simple: we are not suing about clips we posted. In virtually every case that Viacom uploaded material, we worked closely and transparently with Google to upload those clips. Google's newfound surprise and confusion about this history is a self-serving invention for the purposes of this litigation
Over and over, Google seeks to run from the fact that more than 63,000 infringing clips owned by Viacom appeared on YouTube. Google knew they were there and did nothing. They cannot plausibly argue that the burden of removing the clips fell solely on our shoulders (and the shoulders of anyone else who has produced a creative work). That is why a broad array of groups filed legal briefs in support of Viacom in this case. Any other interpretation defies common sense and is contrary to firmly established law.

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