Yesterday, Kent Walker, Senior VP and General Counsel at Google, took to the YouTube Blog and announced YouTube’s victory over Viacom in the case of “You stole our content, no we didn’t!” Why does it matter? Well, Viacom’s allegation was that YouTube gave people the ability to post unlicensed videos without repercussions and that they should be responsible for whatever people upload. It got to a Federal Court and the judge basically said, “Nah.” But there is a very important distinction here that may get lost. YouTube didn’t win this case because they can’t be held responsible for what millions of people do.
The YouTube-Viacom Case, Part II
This case has been flying around since 2007, when Viacom (which runs networks MTV, Nickelodeon, and Comedy Central, among others) took umbrage against YouTube for allowing users to post clips such as “The Daily Show with Jon Stewart” and “SpongeBob Squarepants.”
What’s important to note in this is that YouTube, for good or ill, has a takedown policy for content where if they are informed about it, they will remove the unlicensed video in a timely manner. Of course, this opens a whole other discussion, because there are a number of times that videos have been accidentally taken down, or someone has wrongfully flagged a video for takedown, and it takes all sorts of research and crossed-fingers to get that video back up.
But focusing on the takedown policy, this is what protected YouTube. They have ContentID and they have a policy against those who upload copyrighted content that isn’t theirs. The Federal judge cited the Digital Millennium Copyright Act, which balances free speech with the rights of copyright holders. Basically, it’s up to Viacom to tell YouTube when their copyrighted content is uploaded to the site.
Back in 2010, the first case went against Viacom because of the reasoning that YouTube could not possibly know about every single bit of copyrighted material that hit their site. Viacom appealed based on the idea that it was impossible to prove that YouTube could even know what content was protected, basically saying (not in so many words) that the very forum that allows people to upload videos is against the law when it comes down to it. And, apparently, they’re planning on appealing again.
It would be interesting to hear how Viacom believes they can stop any video site from posting copyrighted content, and what kind of video uploading site could even exist if they were to succeed–and I think that’s the point, no video site could possibly exist if they win. I sense that’s what many people believe that’s the whole point of the suit, to cripple video uploading sites and eliminate the new wave of digital competition.
If YouTube didn’t have this kind of protection for content holders, this might have been a different fight. But it’s probably not over, either.