It’s On

By JoCo March 14, 2007

Viacom is suing YouTube/Google for a billion dollars over unauthorized use of its programming. This should be interesting, or at least expensive. I suppose this is why YouTube blindly took down everything Viacom told them to a couple of weeks ago, so that they could claim now to have respected rights of IP holders all along. Though there are a lot of other ways out of this for YouTube, including fair use arguments, and the “safe harbor” clause of the DMCA that protects some kinds of sites from liability for copyright infringement that their users do.

In a related story, that excellent slowed-down Baby Got Back video was taken down a while ago. As they say on the internet, I Am Not A Lawyer, but it sure seems pretty fair use-ish to me. Now, all I need is a billion dollars…


Average Jon says

I've been wondering... has anybody heard official statistics on last month's takedown?

How many vids were clear copyright violations vs. arguable fair use vs. false positives (like spiff's WoW stuff).

Seems to me that Viacom wouldn't have much of a case if a big percentage of the videos they're complaining about isn't even theirs.

Spiff says

I can't figure why Viacom thinks they have a case. The "safe harbor" clause of the law seems to protect YouTube -- as long as YouTube takes down copyrighted material as soon as they're asked to do so by the copyright holder (which YouTube slavishly did), then YouTube should be good.

There's another part of the law that says that the distributor (YouTube) can't profit from the copyrighted material, but that seems to be a wacky gray area. If, for example, YouTube ran ads on a page with a clip of the Daily Show, they'd be making money from the clip. But they probably don't even know it's there and don't have to take it down until Viacom asks them to, so what are they supposed to do about the money they accidentally made off of the copyrighted material? Give it to Viacom? How are they supposed to know how much money they're making on copyrighted material if they don't even know it's there until they're informed of it? Zany.

Glenn says

I am not a lawyer, but I think it'll be pretty easy for the plaintiffs (and the fancytiffs) to argue that YouTube shouldn't be allowing videos to be posted unless they are copyright free.

Which has me worried, because a whole lot of what's worthwhile on there (or at least fun to watch) is old stuff that isn't available any other way, but might still be owned by someone's copyright. Frinstance, I was watching a whole bunch of clips from old 70s shows the other day, just as a nostalgia thing. It'd be a crying shame it this sort of stuff was no longer on GooTube just because some people are upset they are somehow losing money because more people have access to their TV shows. (Whereas if they made more of this stuff available on iTunes, maybe with free teaser previews on YouTube, they'd make a couple of mints.

Glenn says

Still not a lawyer, but it's hard to imagine they'd be able to get anything like a billion dollars out of Google, this is probably a legal foot in the door technique to get Google to compromise and change the system to avoid all copyrighted material.

Liam says

Yeah, but this is why I shook my head in wonder when Google decided to buy YouTube. On its own, YouTube didn't have a whole lot of money. Small fish, not a whole lot of "there" there. You could sue them to try to get your copyrighted materials off of YouTube, but you weren't going to get a billion dollars or anything.

So most places, if they bothered at all, simply sent "cease and desist" letters.

But now that Google owns them, and Google has some pretty damn deep pockets, now they're a target.

This seemed like a really bad purchase for Google to me. (By the way, the "We just host things, with this volume of links we can't be expected to police it all" theory has already been shot down by several of the BitTorrent index sites, who were found to be in violation of the law even though all they had, technically, was a pointer to where someone ELSE was violating the law. Something about "aiding and abetting" or something.)

We'll see how it works out.


Randal C. says

You should totally sue Sir Mix-A-Lot for appropriating your melody for his video.

Doesn't Viacom own one of YouTube's competitors? Wouldn't Viacom be liable for a billion dollars in damages if someone were to upload a copyrighted thing I created to the Viacom-owned iFilm?

I think the solution to this problem has become apparent.

SirNuke says

The interesting part of this whole fiasco is that Viacom owns iFilm, which allows users to upload videos (and therefore takes advantage of the safe harbor passage in the DMCA).

In order to win the suit, Viacom would need to show that YouTube is not protected by the Safe Harbor passage. Doing this would spell doom for the many smaller user-content sites, as well as Viacom's iFilm. As such, I don't think winning the court case is their goal.

This makes me think that Viacom is more interested in bringing Google back to the negotiating table, but under Viacom's terms.

What BitTorrent sites being successful sued? I know of sites that have been raided (The Pirate Bay), shut down by their ISPs (ISOHunt), shut down as part of a settlement in a lawsuit (LokiTorrent), or shut down due to legal pressure (SuprNova), but none (that I know off) have been shut down by losing a court case.

Randal C. says

Since iFilm is ad-supported, a user uploading a JoCoPro video to it would violate the sharealike-noncommercial aspect of your creative commons license.

When you get your billion, will you buy me a pony? Or a half-pony half monkey monster?

Eric Ginsberg says

Look, in a perfect world, it would all be CC, but the fact of the matter is that even CC allows the creator to decide what aspects they do and don't want to give away. Viacom (who will undoubtedly not be the last company to sue YouTube over this) has chosed to Copyright it's material, and with that Copyright comes guidelines.

There is so much great content on YouTube that's posted by the people who created it, and I think that's what the "You" in "YouTube" is all about (after all, "You" were TIME Magazine's person of the year).

If YouTube has a user agreement whereby the poster of the material must attest that it's not in violation of Copyright law, then the user shoulders the majority of the blame, but YouTube should take on the responsibility of policing their own site and not just waiting for someone to say something.

At the end of the day, Viacom is bringing attention to a problem and, while they may not win their $1 Billion (which is likely for shock purposes), they will hopefully cause YouTube to reform it's service such that people who expect to get paid for their work don't get the benefit of free advertising for their work, and such that creative individuals who are producing genuinely entertaining material without the power of "the machine" behind them can stand out more. I'd say everybody wins.


JR says

"Now, all I need is a billion dollars… "

Be careful what you wish for... that's an awful lot of stuffed monkeys.

IrishLion says

A thousand monkeys with a thousand typewriters couldn't come up with a more confusing legal brief!

It's one of those issues that you can go both ways on... Bi-legal?

On the one hand - Cool stuff I can't see anymore.

On the other hand - Viacoms right to charge money for content they produced.

The scales of justice must weigh carefully.....

Mythgarr says

You know, it doesn't matter whether they win or not. By the very fact that Viacom has dropped the suit, they've won. Google now has two choices:

1) fight a long and drawn out legal battle, be vilified in the end, but not receive any compensation. This is the same as losing millions of dollars, as the legal team required to fight this battle would be very well paid.

2) Settle out of court for millions of dollars. This is faster, and thus often more attractive.

I knew there was a reason that I'd lost faith in the legal systems of the civilized world.

Spiff says

It's the worst system in the world... except all the other ones.

Matt says

This reminds me of Paramount's freak-out about Star Trek fan sites in the mid '90s.,1284,1076,00.html

Sarah says

In at least one case in the past, "use in a parody of some of the content of the work parodied" has qualified as fair use. However, the whole video of the whole song is a little more than "some of the content." I would expect the slowed-down BGB video to be squelched by the third of the eeevil Four Factors: "amount and substantiality of the portion used in relation to the copyrighted work as a whole."

Yes, I do keep USC Title 17 on hand at all times. Why do you ask?

Lindsay says

I know this isn't related to this particular blog post... but JoCo - did you know you got Farked?

I've tried to submit videos of your stuff before but i guess the trick is to shamelessly reference anna nicole or britney to get greenlit...

cheers :)

Radien says

I thought parody law had some sort of clause to the effect of "change X% of the original"?

The number I think I heard was 10%, though that invariably sounds extremely small. It seems strange that you'd only have to change 1/10th of the content. I know there's a grain of truth in here, but I don't know where it goes.

I hope someone else will host the Baby Got Back video, though this site doesn't really seem to be geared towards that possibility.

About YouTube: I see it all as control. YouTube is an immense cultural influence on America, and when it comes right down to it, corporations are only about money so far as money results in control. If they can get control without money, sometimes it's just as good to them, even if it ends up making no sense at all to the common individual.

Gle3nn says

I think it's that you can only use 10% of the original before you get to the point where you have to pay or get permission.

Shannon says

Did you kow that you were mentioned on This Week in Tech podcast two weeks ago?

Sarah says

USC Title 17 Section 107, ye olde Fair Use clause, never says anything as clear-cut as 10%. My local IP lawyer and I once spent entirely too much time trying to trace the 10% myth to its source, and never found it.

I have a rich life.

Entirely too detailed information at

Average Jon says

I just noticed this on slashdot:

If you follow the links, you end up here:

...where the EFF asks people whose videos were pulled inappropriately to contact them.

According to Viacom, "no more than" 60 of the 100,000 takedowns were errors (seems to me that I read about more that that here).