VIACOM RELEASES ADDITIONAL DOCUMENTS
by Stanley Pierre-Louis, Viacom Vice President, Associate General Counsel Intellectual Property & Content Protection
April 15, 2010
— Today, nine additional exhibits filed with our opening brief are being released to the public for the first time after Google dropped its objections. Newly public are excerpts from the deposition of Google CEO Eric Schmidt as well as documents that show Google's own analysis of YouTube's business prior to the acquisition. Taken together, these exhibits make clear one of our core claims in the case: that Google made a deliberate, calculated business decision not only to profit from copyright infringement, but also to use the threat of copyright infringement to try to coerce rights owners like Viacom into licensing their content on Google's terms.
It did not have to be that way. Prior to acquiring YouTube, Google operated its own video sharing site, Google Video, and in running it made reasonable efforts to keep infringing works off the site. Indeed, Google persisted in these copyright-respectful practices even as YouTube gained ground through its illegal acts; and Google did so because its employees knew full well that the YouTube approach was both illegal and wrong.
When Google's management considered the possibility of acquiring YouTube and thereby adopting its illegal approach, several of Google's senior employees spoke out:
Content Acquisition Strategy Update, May 2006 (pdf)
- "YouTube's business model is completely sustained by pirated content."
- "YouTube's content is all free, and much of it is highly sought after pirated clips."
- "[W]e should beat YouTube by improving features and user experience, not being a 'rogue enabler' of content theft."
Google nonetheless went ahead with the acquisition and explicitly embraced infringement as a business model. Indeed, not long before the acquisition, the executive in charge of managing Google's core product offerings, including search, sent Google's co-founders and CEO an internal presentation explicitly advocating that Google use the threat of copyright theft to advance its business interests:
Summary: BizOps Google Video Strategy Work, March-May 2006 (pdf)
- "We may be able to coax or force access to viral premium content... Threaten a change in copyright policy... use threat to get standard deal sign-up"
Google today sees all this and protests that Viacom is out to destroy the Internet. Hardly. For one thing, our lawsuit targets intentional and willful unlawful conduct. For another, today Google itself does what we say they should have done from the get–go—namely, employ the use of tools like digital fingerprinting to identify and discourage obvious copyright infringement—yet the sky has not remotely fallen. YouTube is still there to host millions of videos even after moving to a more respectful copyright posture. Google and YouTube should have taken responsibility from the outset.
Similarly, Google now argues that its conduct was protected by the Digital Millennium Copyright Act. But that lawyer's claim, too, rings false. YouTube and Google made a calculated business decision to use other people's copyrighted content as their start-up capital. To add insult to injury, Google then implemented fingerprinting and other copyright protection services but only extended those services to companies willing to license content on Google's terms. Google used that "threat to get standard deal sign-up." Only Google could read the DMCA to condone that sort of thievery and malice.
And yes, we've seen it: Google's public relations machine has been trying to shift the blame to us, because some Viacom employees did in fact use YouTube for promotional purposes. But this is a problem YouTube and Google created, not Viacom. We asked for the ability to identify to YouTube which clips were promotional, but YouTube and Google did nothing because they didn't want to know. In the law this is called "willful blindness." Just last week, the U.S. Court of Appeals in New York noted that "willful blindness" is just another form of intentional infringement.
All told, we are disappointed that Google's actions have resulted in a lawsuit, and we made many efforts to avoid that outcome. In the end, however, Google left us with no choice. Our company spends a fortune every year promoting, developing, and financing creative projects, from popular television programs like South Park
to major motion pictures like Transformers, Star Trek, G.I. Joe
and Shutter Island.
We also employ upwards of 11,000 people, and make it possible for them to work at jobs that we think they genuinely love. We can't do that if companies like Google are allowed to brazenly take what we've worked hard to create.
DIRECT LINKS TO NEW EXHIBITS
Hohengarten Ex 052
Hohengarten Ex 059
Hohengarten Ex 060
Hohengarten Ex 063
Hohengarten Ex 081
Hohengarten Ex 242
Hohengarten Ex 314
Hohengarten Ex 321
Hohengarten Ex 340