Note to YouTube: Don’t use email to ask your co-founder to stop uploading copyrighted videos
Viacom is suing YouTube (therefore, Google) for 1 billion dollars for copyright infringement. The lawsuit has been going on for 3 years, but the many of the legal briefs and exhibits were just made public today, in particular internal emails.
Viacom argues that YouTube intentionally posted copyrighted content in order to increase the size of their audience. Google defends its actions that they have complied with DMCA by removing copyrighted content as soon as they are alerted of its presence. They have also built in a system for flagging copyrighted material. More recently they have created a filtering system called Content ID that automatically compares uploaded materials with copyrighted works in its library. Viacom is trying to prove that even though they created measures for removing copyrighted works, YouTube was actually encouraging copyright violations.
Viacom alleges not only that Google is guilty of secondary liability but of also posting copyrighted content intentionally. Like in MGM v. Grokster, internal company materials are being used as evidence to demonstrate that YouTube was not a passive infringer. They cite an email from one YouTube founder to another that essentially asks him to stop posting copyrighted videos because it will look bad when they are claiming that they are trying to minimize infringement: “Jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”
YouTube, in turn, accuses Viacom of putting its own copyrighted materials on the site in order to gain publicity. If YouTube can prove that Viacom intentionally put their own materials on the site, it will be interesting to see if the court will consider this an implicit license for copyrighted material.
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