Viacom wants Appeals Court to overturn YouTube ruling

October 24, 2011

Viacom has warned the 2nd U.S. Circuit Court of Appeals in Manhattan that a lower court ruling — if upheld — would allow YouTube to get away with “rampant copyright infringement.”

Viacom’s lawyer, Paul Smith, told the three-judge panel last week that a lower court judge was wrong to rule that Google’s popular video service was protected from copyright infringement claims.

“YouTube not only knew there was rampant copyright infringement on the site, but welcomed it,” Smith said. “These people made this kind of money on somebody else’s property.”

In response, Google attorney Andrew Schapiro argued that YouTube follows the law and always has by taking down video when a copyright owner claims the video infringes its rights.

“There is no evidence, zero, of a single clip in this case that YouTube knew was infringing and failed to take down,” he said.

Viacom’s chief complaint, Schapiro said, seemed to be that Google was not screening for copyright violations in the manner Viacom preferred.

“We’ve done A, B, C and D, and plaintiffs are saying, ‘You should have done E and F,’” he said. “IF we did E and F, they would say, ‘You should have done G and H.’”

A ruling by the appellate court could be months away. Since the purchase, YouTube has developed a software program that identifies copyright violations when videos are posted, so that most of the litigation relates to whether Viacom should be compensated for what occurred before the program was put in place.

In a lower court ruling last year, Judge Louis L. Stanton noted that Viacom had spent several months accumulating about 100,000 videos violating its copyright and then sent a mass takedown notice on Feb. 2, 2007. The judge said YouTube had removed virtually all of them by the next business day.

Google purchased YouTube for $1.76 billion in 2006, comfortable that it was protected by the safe harbor provision of the 1998 Digital Millennium Copyright Act. That provision shields a company from liability if it doesn’t have actual knowledge of copyright infringement. Once notified, the company must eliminate the infringement quickly.

Viacom owns cable channels including as MTV, Comedy Central and Nickelodeon. In 2007, Viacom brought a $1 billion lawsuit against Google, contending that YouTube was enabling unauthorized viewing of its programming from hits such as “The Daily Show with Jon Stewart.” Viacom is joined in the action with The Football Association Premier League Limited and other plaintiffs.

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