Monday, April 30, 2007

Google fires back against Viacom suit

By Dawn C. Chmielewski
Times Staff Writer

6:24 PM PDT, April 30, 2007

Google Inc. fired back against Viacom Inc. today, arguing that the entertainment giant's $1 billion copyright infringement case threatens the way hundreds of millions of people legitimately exchange information, news and entertainment online.

In a federal court filing in New York, Google argued that its popular online video site, YouTube, cannot be held liable for the video clips of "The Daily Show with Jon Stewart," "SpongeBob SquarePants" or other Viacom shows that users post, because copyright law provides a shield.

Google said Congress, in passing the 1998 Digital Millennium Copyright Act, struck a careful balance between copyright holders' right to protect their content online and the interests of service providers whose computers store the information. The law gives providers of Internet access, e-mail and Web services a "safe harbor" from liability, so long as they act quickly to remove infringing material, Google said.

"Congress, in the DMCA, provides hosting platforms like YouTube with very clear protections against lawsuits of this nature … provided we take certain steps," said Mia Garlick, Google product counsel. "It has been our position consistently that we meet and exceed those steps that are laid out in the DMCA."

Viacom didn't mince words in responding to Google's allegations. "It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it," a statement from Viacom said. "It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube. Unfortunately, Google continues to distinguish itself by failing to join the majority of major digital companies that have affirmatively embraced the legal rights of copyright holders."

Viacom sued Google and YouTube in March, seeking at least $1 billion in damages for alleged copyright violations. It accused YouTube of deliberately building a library of copyrighted works to attract viewers to the site and increase its value – and making calculated decisions "not to take reasonable precautions to deter the rampant infringement."

Google denied the allegations in its 12-page legal response, offering a lengthy list of arguments it plans to make in court, including that video excerpts can be posted online as a fair use of copyrighted works.

Google's Garlick said YouTube goes well beyond what the DMCA requires in providing copyright holders ways to verify that their videos are on the site and an automated process for requesting the unauthorized clips be removed.

"We're very confident in our legal position and believe that we're definitely meeting our obligation," Garlick said.

Some legal observers, such as Matt Jackson, an associate professor at Penn State University, said the case may hinge on whether the courts determine that YouTube must proactively screen the videos its users post.

Richard E. Neff, partner at Greenberg Glusker law firm in Los Angeles, said the protections Google claims rely on YouTube lacking actual knowledge of the infringing material. While it's true YouTube may not know whether an individual clip from "The Colbert Report" is copyrighted, it's also clear that infringement is happening on a massive scale, he said.

"It's not a slam dunk, but a court is likely to find that this is going on massively, daily [and] you've got to do something about it," Neff said.