Google/YouTube vs. Nearly Everyone Else
by
on May 09, 2007,
The plot thickens every day in the battle between various entities and the tag team of Google and YouTube. The yesterday's news is that NBC Universal has taken sides with Viacom in their piracy lawsuit. This lawsuit, and the most recent one by the English Premier Soccer League we reported on a couple of days ago, may signal the end for "questionably" legal content submission not only on YouTube but anywhere the U.S court has jurisdiction or influence. The weighing in of the heavyweights has officially started with this latest news. I cannot help but think someone at Google must have uttered a muffled complaint at least. If it were my company I would have needed a stiff drink of corn liquor to swallow the implications.
Amicus Curiae
On Friday NBC and Viacom filed what is known as a "friend of the court" brief in the U.S. court of the Central District of California. This is in response to YouTube's motion to dismiss the suit. The Latin term is amicus curiae, or literally friend of the court or the people of the United States in this case. The term describes a person or organization not party to the lawsuit but with a strong interest in the outcome, and one who wants the court to hear their opinions and supportive material facts.
Epinion and Opinion
Many bloggers and experts predicted that the primaries in this case would come to some agreement over these issues so that this huge problem would not turn into an "all or nothing" conflagration. The momentum has obviously now headed towards this very destination, as the groups being to line up for what may be the Armageddon of Web 2.0.
I don't think this latest filing on Friday at the heels of the other lawsuit by Premier Soccer was by any means a coincidence. Some might consider that NBC Universal and GE (their effective owners) would have entered into the "class action" suit by Premier rather than taking a less aggressive approach. The thing is, GE and its subsidiaries do not need the measly $1 billion up for grabs in the lawsuits, but they do want the billions with an "S" in potential earnings from their property. What's more none of these giant corporations are going to stand by and let Google or anyone else steal a dime from them for long. As a clarification of NBC Universal's (and GE's) stance the corporation offered this quote via a story on Reuters/Yahoo news: "Many of NBCU's most valuable copyrighted works have been copied, performed, and disseminated without authorization by YouTube and other similarly operated Websites. NBCU has a strong interest in preserving the strength and viability of all of its legal rights and remedies in response to such conduct."
Other Facts
Google has failed to respond to this latest development but their general Counsel Kent Walker did make comment on the Premier lawsuit saying: "These suits simply misunderstand the Digital Millennium Copyright Act, which balances the rights of copyright holders against the need to protect Internet communications and content." Now that is some legal flaming if I ever read any, one set of overpriced lawyers telling another set they are "stupid" and simply do not understand the law.
The Law
If I may quote and comment on a few areas of contention, please bear with me. Section 1201 of the Act the Google mouthpiece refers to was added to the Act to outlaw specific clandestine acts of technical abuse of copyright, but it also saves the rights of anyone to seek remedy for violations of any copyrighted materials under misuse.
Section 1201 contains two general savings clauses. First, section 1201(c)(1) states that nothing in section 1201 affects rights, remedies, limitations or defenses to copyright infringement, including fair use. Second, section 1201(c)(2) states that nothing in section 1201 enlarges or diminishes vicarious or contributory copyright infringement.
This dated act expresses an inordinate wisdom in an age when 3 years is ancient history. There are really only two defenses that YouTube can seek in order to use this Act. The first is the fair use clause alluded to originating in actual Copyright litigation outside the realm of this Act. The second is the limit of liability clause of the act itself and I quote one pertinent section:
"Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it."
Without going into a legal brief on the behalf of the plaintiffs, let me say that YouTube is on very shaky ground in this case for some pretty obvious reasons. In the first place it is obvious that Google and YouTube have gotten a great deal of utility from their users' copyright infringements. Secondly, as mentioned in my previous articles, the adversaries these guys are up against may appear fairly dormant but in reality are always in control of a wide spectrum of events. Finally, the combinations of powerful enemies Google and YouTube are aggravating will only be provoked so far.
The Battle Google Doesn't Want
GE's tentacles stretch much farther than Google's, besides having 6 times the market value on the face of it, GE and other traditional companies are not primarily made of air. This is to say that they have hard assets in place not under the influence of public whim. I think what NBC Universal and GE are saying here is; "back off". Add a few more GE buddies to the situation and Google's goose may be cooked from a corporate warfare standpoint.
The problem now is that it may be too late for any of the constituents to back off. What is at stake is a precedent that determines many billions of dollars and more importantly what the law will do to protect copyrighted material. I am not sure what kind of technicality or Digg support Google is looking for, but it is certain no sane court is going to uphold a site where thousands of copyright infringements are present. The other side of the coin reveals poor Google now stuck between a rock and a hard place, or is this an Armageddon Google is seeking? Who knows, maybe Web 2.0's geek community and it's affinity for Google can alter the course of western civilization.
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skindeep
Svetlana Gladkova
Michael Fidler 
jiri
actually, i think the relevant part of the law is USC 512, not 1201. 512 deal with ISP liability while 1201 covers anti-circumvention. 512 also has a vicarious liability/knowledge requirement so you’re analysis is still fairly accurate.
Hi Ned,
You are right the more relevant section USC 512, 1201 and 512 can be used separately or in conjunction in building a case. Thanks for taking the time to straighten me out.
Whatever one may say, it’s a persuasive caricature!
Yes, from personal experience the more powerful toes one steps on the better the chance one has of waking up without toes. Google’s success is bound to draw some conflict from competitors and even the neighborhood bully, but if their lawyers were really great you would think they would not be in court more than at the office.
I believe it was GE who sued the U.S. Government for damage done by bombing of one of their plants in Nazi Germany during the war and won! Also, half the people in China are making microwaves and other products for GE, and Google wants to work there. One more “friend of the court” and enemy of Google and the Judge will probably increase the damages done to Viacom to $2 billion.
Your over-dramatized version of events to attract readership comment and interest really does not help in the slightest. Any court decision will have nothing to do with the size of anyone’s tentacles, the utility YouTube has derived from copyright infringement, and comparisons with Jack and the Beanstalk fairytales. What you presented here is a classic example of how internet freedom simply magnifies all those things we detest about mainstream media.
Oh and learn to spell “fairy”.
You are so right Michael, I did mash “fairy” incorrectly into that “David and Goliath” graphic. As for over dramatization, that is a rather subjective classification based on your opinion I think. Detestable is a first for me, so I can only take that as a sort of compliment for having hit someone squarely between the eyes who obviously has a problem with symbolism.
Perhaps I should have just said; “Google and YouTube may have gotten too big for their britches this time” and left it at that. Tentacles is not too be confused with testicles BTW, and anyone who thinks U.S. or any other courts operate simply on “cookie cutter” legal briefs and justice has had zero experience with the court system.
Attracting readership is an interesting aspect of your comment given what I know about that aspect of Web 2.0. To a large degree my readers just like my articles I think. My methodology differs greatly from some much more “visible” technical blogs. At one of those you might find a paraphrasing of either a press release or direct emailed request already outlined and condensed for the writer so that instead of my two or three submissions you might see 12 watered down wanted posters on a startup or subject.
However, if 100 profy readers reflect that they are tired of my characterizations I will consider putting the facts in a more “pin striped suitish” tone, but for now the comments reflect 1 for, 1 neutral and 1 against depicting the principles as a really large entity getting ready to thump one that thinks it is large.
BTW Mainstream media would have chosen the popular protagonist, while I pit one detestable one against the other based on my opinion of who will win.