Viacom's Real Intent? To Pretend The DMCA Requires Filtering
from the changing-copyright-law-through-lawsuits dept
We’re seeing more and more analysis of the summary judgment motions filed by both sides in the YouTube lawsuit between Google and Viacom. Unfortunately, many sites are basing their analysis on the out of context quotes Viacom pulled out of some emails — despite the fact that the evidence doesn’t actually support what it claims. One particularly laughable analysis was done by a group funded by the entertainment industry, which not only takes those quotes out of context and considers them proof, but then completely misinterprets Google’s filing as well. The writer, George Ou, seems to think that the point of Google’s filing is to show that since Viacom used YouTube, it shouldn’t file a lawsuit. But that’s not at all what Google’s motion said. The point wasn’t that Viacom used YouTube, but that it uploaded all sorts of content in secretive ways — ways that would make it impossible for Google to know what was and was not infringing. Furthermore, the arguments were about how Viacom set up a complex set of ever changing rules that confused even Viacom’s partner in issuing takedowns, and yet expected Google to be able to magically know what Viacom wished taken offline, and what should be left online. Oddly, Ou seems to have missed all of that, despite it being the central point to Google’s motion. He also falsely claims that Google is suggesting if Viacom uploaded some content, that means everyone should be able to do so. Google said no such thing. It’s merely pointing out that Google is in no position to know what Viacom is authorizing and what it is not — and according to the law, that means Google need not try to guess.
A much better analysis, that really cuts through the clutter and highlights the key point of the case, is the one by the EFF’s Fred von Lohmann, where he notes (as Eric Goldman did) that in a footnote, Viacom admits that it’s fine with all of YouTube’s actions after May of 2008, when it implemented its own filtering technology. Once you realize that, it becomes clear: Viacom is claiming that the DMCA requires filters. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year, that he felt the current DMCA was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.
And yet, by Viacom’s own (indirect) admission in this lawsuit, it seems to believe that the DMCA requires proactive monitoring:
So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft’s Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the “send file” features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for “secondary liability.” If Viacom is right, then there are no clear rules to follow, except “beg permission from every copyright owner first.” And that’s a rule that would hobble innovation and competition online.
So please pay careful attention to the actual arguments being made here. No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube’s responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not required — and, as Google’s filing makes clear, even if it were required, given Viacom’s own actions, this would be impossible.
Filed Under: copyright, dmca, filtering
Companies: google, viacom, youtube
Comments on “Viacom's Real Intent? To Pretend The DMCA Requires Filtering”
all viacom is doing is pointing out that once a company receives a dmca they should be aware that the content is not permitted and to do what they can to stop infringing in the future. otherwise it is take it down now, someone uploads one minute later, and the process of dmca is meaningless. dmca makes youtube aware that a video is infringing and that it should not appear on their site now or in the future without permission.
Re: Re:
What you suggest is called ‘filtering,’ and is not something the DMCA requires. Which you might possibly have understood had you read the article. In order to know that a video being uploaded infringes, someone must watch it and compare it to another video. Yes, there is software that is somewhat able to do this. It’s slow and bulky, just like employees.
Re: Re:
I disagree with that interpretation. A reformat can confound video fingerprinting technology. Content of a shorter duration, or in the background may be legitimate fair use as previously ruled by the courts. To insist that one take down covers all variants of a piece of content places undo burden on the intermediate party that was never intended. If content owners wish to protect their interests and have benefit of law, they should do their own investigative work. It is more practical for each content owner to police their own material, then to have Google police for them all. If the mega-corporations don’t like it, maybe they shouldn’t be buying up every small content creator that competes with them. If their portfolios are too large to track, that’s a problem they made for themselves.
Re: Re:
dmca makes youtube aware that a video is infringing and that it should not appear on their site now or in the future without permission.
FYI, Viacom has issued DMCA takedown notices for their own works.
Also, if Viacom uploads a segment of, say, The Daily Show, and then someone *else* uploads that same segment, should the other segment be taken down? Should a take-down notice for the other segment affect Viacom’s upload, especially given Viacom’s repeated attempts to covertly upload their files to YouTube?
Re: Re: Re:
uploaded under viacoms account should not be an issue. uploaded elsewhere should be taken down. how hard is that to understand?
Re: Re: Re: Re:
Viacom hired marketers to secretly upload Viacom clips and to make it look like Viacom didn’t upload the clips when, in fact, they did. How hard is that to understand?
Car analogy
Cars are used to carry illegal materials. Should we require the police to stop and check every car that is on the road? Would they know what materials should be in the car or not?
I was in law school when the DMCA was enacted. As a side note, no one actually thought the law was going to be passed. We were shocked.
Anyway, it’s pretty clear that the purpose of the DMCA was balance. On one hand if internet websites and providers were to exist, they could not be responsible for infringement by their users. If websites and providers could be held responsible, everyone recognized that the web would be killed off.
However, to get that immunity (why someone should be granted immunity for something they did not do is beyond me) the internet providers and websites had to take down infringing content when it is found by the copyright holders and when they were so notified by the copyright holders.
To make internet providers and websites responsible for their users’ infringement because they didn’t look for such infringement is simply asinine. How in the frick is some website administrator supposed to know what is copyrighted, what is fair use, what is infringement, etc?!
This is not a mere stretch of the DMCA, it is a complete perversion of the Act. The entire balance is now placed on websites and providers while the copyright holders can just sit back and do nothing to protect their interests.
Re: Re:
It was perverted to begin with. The campaign contributers are trying to reallign the law towards their interests with DMCA being step 1.
You still missed some key facts
I’ve posted a more detailed piece here.
http://www.dailytech.com/Do+Viacom+Secret+Uploads+Undermine+the+Lawsuit++/article17947.htm
Google is insinuating that Viacom is suing Google over clips it uploaded itself, but Viacom specifically denies this. The only way to rectify these seemingly contracting positions is that Google is saying that some of the illicit content (uploaded by unauthorized accounts not related to Viacom) were the same content freely uploaded by Viacom, and that this makes it impossible for Google to know what’s illicit and what’s not. But Viacom says that Google was fully aware of the specific Viacom authorized accounts and that nearly all of the Viacom uploaded video used these known accounts. So this would make it a very weak defense for the 63,000 illicit clips named in the lawsuit.
Re: You still missed some key facts
in the end the lawsuit isnt about viacoms intent, it is about youtubes actions. discussing intent is just a way to avoid looking at the facts of the case and instead trying to sling mud. it is the karl rove approach.
Re: You still missed some key facts
“Google is insinuating that Viacom is suing Google over clips it uploaded itself, but Viacom specifically denies this. “
Which is crap. They have been dropping clips from the suit as they figure out that they uploaded it (often through sock puppet accounts for that purpose) but they certainly have accused Google of hosting clips that they uploaded.
Re: You still missed some key facts
I believe you mean ‘contradicting,’ not ‘contracting.’ I don’t necessarily agree with your view on this, but I can see how that argument might be made.
Re: You still missed some key facts
“nearly all” if Viacom was using any accounts at all to upload that were not authorized then Google’s argument is valid that it has no way of knowing what is authorized or not.
Re: You still missed some key facts
Google is insinuating that Viacom is suing Google over clips it uploaded itself, but Viacom specifically denies this.
George, you are either not aware of the facts of this case or are being purposely dishonest in your description of it. Either of these is troubling.
Viacom specifically removed over 100 videos from the suit because they realized they were uploaded by Viacom itself. On the eve of the motions being released they pulled some more. So, the reason Viacom says that those videos are not included in the lawsuit is *because Viacom removed them from the suit years later*. But it still took them nearly three years to realize this. And they expect Google to do it instantly.
But Viacom says that Google was fully aware of the specific Viacom authorized accounts and that nearly all of the Viacom uploaded video used these known accounts. So this would make it a very weak defense for the 63,000 illicit clips named in the lawsuit.
Again, you are being misleading. Viacom claims that Google knew of many of the clips that Viacom was uploading — but not all. And that’s the point that Google is making. Viacom went to great lengths to hide what it uploaded surreptitiously, which serves to highlight a single point that you still seem unable to grasp: Google had no way of knowing which clips are authorized and which are not.
It may know that IN GENERAL there are infringing clips, but it has no way of knowing which ones are specifically infringing, in the absence of takedown notices.
Furthermore, the long, detailed, and ever changing set of rules that Viacom gave to BayTSP shows that Viacom was randomly authorizing clips to stay online under a complex set of rules. And yet it still believes Google should magically know?
I don’t see how you can continue to support your untenable position on this, other than a willful misreading of the facts.
Re: Re: You still missed some key facts
I liked the part where not even Viacom’s lawyers, who were payed $1k/hour, couldn’t figure out which were the infringing clips and which were not.
These things do take time.
Re: You still missed some key facts
You’re making a lot of assumptions. Their positions on these facts appear to be in conflict. Really not very useful to speculate about the actual facts.
Re: You still missed some key facts
George what of the bits that say – The documents show that Vicky Fang, a Viacom marketing executive, sent an email in summer 2006 to Steve Farrell, head of Viacom’s SpikeTV, saying she was uploading videos to YouTube under the “fake grassroots account ‘demansr.'”
What ACTA attempts to do.
Did you miss last week’s 30 Rock?
They want to get rid of free TV and make everyone pay per episode. Just like what Kabletown’s porn delivery business model does.
If advertising revenue can’t support the business anymore, I suggest we adopt the British Model where everyone gets a TV license and we just get rid of ads all together.
You can’t have it both ways, and ACTA does that.
http://www.tvlicensing.co.uk/check-if-you-need-one/
You also misrepresented the digital fingerprinting
You claimed that in order for the fingerprinting tech to work, Viacom had to have a license agreement with YouTube. That’s nonsense for two reasons.
1. Fingerprinting only needs a small reference fingerprint to work which is provided by the content owner and updated to the Audible Magic database.
2. Even if a full copy of the content was needed, there’s a world of difference between a license to use as a reference for fingerprinting and a license to broadcast.
What Google was trying to do was demand a $590M deal from Viacom and if they didn’t get it, then their content was just going to get pirated until Viacom underwent a lengthy and complex manual identification process and notified Google.
Re: You also misrepresented the digital fingerprinting
“…their content was just going to get pirated until Viacom underwent a lengthy and complex manual identification process and notified Google.”
Again, crap. Viacom can automate the process as well. Viacom is just trying to make everyone else do the hard work of policing infinite goods for them.
Re: Re: You also misrepresented the digital fingerprinting
It’s very difficult to automate something from the client side which doesn’t have backend access to Google’s YouTube servers.
Re: You also misrepresented the digital fingerprinting
Your ‘small reference fingerprint’ will give false positives with Fair Use material. Regardless of what Google did, Viacom still must, by law, undergo a ‘lengthy and complex manual identification process and notif[y] Google.’ That’s the way the law is written.
Re: You also misrepresented the digital fingerprinting
BLOG WAR! Come one everyone, BLOG WAR!!!
Re: You also misrepresented the digital fingerprinting
that sounds like a fair arrangment to me. suppose you are viacom, and want copyrighted material off a website you have 2 options.
1. do the legwork to get such clips off of youtube through DMCA takedowns
or
2. allow google to manage what is and isnt allowed on youtube. of coruse, this is a service from google, for those that dont want to put in the legwork, so goggle charges for such a service
time = money in the corperate world, and again, sounds fair to me.
Re: You also misrepresented the digital fingerprinting
You claimed that in order for the fingerprinting tech to work, Viacom had to have a license agreement with YouTube. That’s nonsense for two reasons.
I responded to you in the comments on the previous post. You described audible magic. We were talking about Google’s own system.
A verdict against Google would not mean proactive monitoring
A verdict against Google would not mean a requirement proactive monitoring. It would simply mean that if you build your business model on the back of piracy to make a profit (and profited they did), and you knowingly decide to allow illicit content to remain on the site or even upload it yourself, then you’re going to be held accountable for it. It requires no such rewrite of the DMCA and the DMCA is clear that you are obligated to remove stuff that you know is illegal.
Re: A verdict against Google would not mean proactive monitoring
Funny Viacom’s own lawyers didn’t even know that they put up some of the materials, how is Google suppose to know.
Re: Re: A verdict against Google would not mean proactive monitoring
Piracy and theft are ok if you a media company like Viacom anyone else its wrong . Viacom wanted to buy You Tube why? Why would they to buy a company that was making some money and the potential to make millions but was doing so on the back of others?
Re: Re: A verdict against Google would not mean proactive monitoring
Because Google was fully aware of the handful of accounts used by Viacom officially to upload virtually all those videos. If Viacom made and error and asked for the removal of some of those clips, that doesn’t change anything for Google/YouTube because they’re expected to assume something is piracy when they see it from an unknown account. This defense that “maybe the unknown account is the copyright owner” doesn’t cut it.
The email evidence also shows clearly that YouTube and Google were fully aware of illicit content but decided to leave it up anyways.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
No they weren’t -> Peter Kafka found sample quote from Viacom employee: “I am uploading youtube videos under fake grassroots account.YouTube already questioning my identity. Bastards.”
And the majority of the quotes where taken out of context:
http://www.techdirt.com/articles/20100319/1237138636.shtml
Re: Re: Re: A verdict against Google would not mean proactive monitoring
Because Google was fully aware of the handful of accounts used by Viacom officially to upload virtually all those videos.
No, Google was aware of some of the accounts, not others, and had no way of determining if any specific videos were infringing, were fair use, or were authorized by Viacom to let others upload them.
If Viacom made and error and asked for the removal of some of those clips, that doesn’t change anything for Google/YouTube because they’re expected to assume something is piracy when they see it from an unknown account. This defense that “maybe the unknown account is the copyright owner” doesn’t cut it.
No, George, you are wrong. The argument is how is Google able to make the call that something is or is not infringing, when it is not easy for anyone, including Viacom to figure that out. Google, as a third party, has no knowledge of what Viacom has authorized and what they have not.
To claim they should be able to magically know what others have authorized, as well as make a fair use determination almost immediately — when even VIACOM took THREE YEARS to figure it out on the videos they sued over is stunning in its level of deceitfulness.
Re: Re: Re:2 A verdict against Google would not mean proactive monitoring
http://blog.ericgoldman.org/archives/2010/03/viacom_v_youtub.htm
“Viacom’s failings have proven to the judge that it’s too hard—too hard for lawyers charging upwards of $1k an hour despite having unrestricted access to accurate information in their clients’ possession, and clearly too hard for YouTube’s slightly-above-minimum-wage customer support representatives with no such information advantages.”
Why didn’t Google just press the magic button on their magic machine to figure all of this out!!!
It’s magic!
Re: A verdict against Google would not mean proactive monitoring
is clear that you are obligated to remove stuff that you know and the ONLY way that you “know it is illegal” is if you receive a properly formulated DMCA takedown notice. If that were not the case then those who wrote the DMCA would not have invented that mechanism.
In any case filtering mechanism are ineffective, they can be defeated by relatively trivial transformations that can be done by anyone.
Copyright holders have just got to get used to the fact that technological change has made their rights unenforceable and move on before they make themselves so unpopular with the public that they cannot succeed even with a new business model.
Re: Re: A verdict against Google would not mean proactive monitoring
You’re obligated to remove stuff that you get explicit notice on, and you’re obligated to take down stuff that you recognize as copyrighted material. If you decide to keep that 80% illicit material so that you can grow traffic and sell the site to get rich, you should pay the price. Google was well aware of the liabilities which is why they set aside $200+ million of the purchase price of YouTube in escrow.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
“… you’re obligated to take down stuff that you recognize as copyrighted material.”
Hey, news flash, George: Since ’78 it’s ALL copyrighted material. Every doodle on a frakin’ napkin. If your precious snowflakes are so valuable, it’s up to YOU to look out for it.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
Again
“Piracy and theft are ok if you a media company like Viacom anyone else its wrong . Viacom wanted to buy You Tube why? Why would they to buy a company that was making some money and the potential to make millions but was doing so on the back of others?”
Also it doesn’t matter if it was one account or hundreds, one part of Viacom was hiding that fact they where uploading videos and making look like it wasn’t them. The other part was issuing DMCA takedowns of those video’s, if Viacom can’t police themselves why should Google be responsible?
Re: Re: Re:2 A verdict against Google would not mean proactive monitoring
He won’t answer those questions. He’s paid to loop around them and try to come out squeaky clean.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
and you’re obligated to take down stuff that you recognize as copyrighted material.
1 The correct word here is “obliged” not “obligated”. The word “obligate” has precise technical meanings in biology and finance. Please don’t mess the language up.
2. ALL recent material is copyrighted. ALL VIDEO is still in copyright. Therefore recognising material as copyrighted is not anywhere near the point. The actual point is whether the person who uploaded the material holds the copyright or has permission from the copyright owner – and it is impossible to know that without input from the copyright owner.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
You’re obligated to remove stuff that you get explicit notice on, and you’re obligated to take down stuff that you recognize as copyrighted material.
Blatantly false, George.
You’re obligated to remove stuff that you get explicit notice on, and you’re obligated to take down stuff that you have red flag notice of being *infringing*.
There’s a difference between “copyrighted material” and “infringing material,” and figuring out the latter is a lot more complex than figuring out the former.
Again, you are being misleading in your writing by using the former rather than the latter, as it’s the difference between the two that means everything in this case.
Re: A verdict against Google would not mean proactive monitoring
The question isn’t whether you need to remove stuff you know is illegal, but whether you are responsible for knowing whether or not the stuff you host is illegal. Obviously they didn’t know which content they hosted was illegal (they probably don’t know what content they are hosting at all). They know some is illegal, and they already *do* take down the content when they find out it is infringing.
Re: A verdict against Google would not mean proactive monitoring
The DMCA does not say you are required to remove content that you know is illegal. The DMCA only says you are required to takedown content after receiving a takedown notice from the copyright holder.
Re: A verdict against Google would not mean proactive monitoring
A verdict against Google would not mean a requirement proactive monitoring.
Oh come on, George. You’re a smart guy. You can’t honestly believe that wouldn’t be the end result of any such ruling. You can’t honestly believe that the entertainment industry wouldn’t immediately start using this ruling to suggest that any website that has infringing content needs to put up filters. You’re not that naive.
It would simply mean that if you build your business model on the back of piracy to make a profit (and profited they did), and you knowingly decide to allow illicit content to remain on the site or even upload it yourself, then you’re going to be held accountable for it
Again, you are making the false assumption that YouTube was able to know which videos were *specifically* infringing in order to know what to take down. Viacom failed to show any such proof. The claims of YouTube’s own founders uploading infringing content were taken totally out of context. The claims of them knowing that there was a lot of infringing content was, again, general knowledge, not specific knowledge.
It requires no such rewrite of the DMCA and the DMCA is clear that you are obligated to remove stuff that you know is illegal.
Yes, specific knowledge. If you have general knowledge, how the hell do you know what to take down?
Re: Re: A verdict against Google would not mean proactive monitoring
if 80% of the material is commercial product, and you dont have an agreement with the rights holders, you can guess that it is copyright and not permitted. youtube chooses the opposite route assuming that everyone on the planet has the right to everything without restriction. that is their mistake.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
Hahahaha.
The DMCA explicitly gives Youtube the right not to filter.
If it weren’t for this right, you wouldn’t have email, instant messaging, search engines, forums…hell, the entire internet would cease to exist.
But keep living in your entitlement pipe-dream. I know you need it to sleep at night.
Re: Re: Re: A verdict against Google would not mean proactive monitoring
if 80% of the material is commercial product, and you dont have an agreement with the rights holders, you can guess that it is copyright and not permitted. youtube chooses the opposite route assuming that everyone on the planet has the right to everything without restriction. that is their mistake.
This is incorrect. YouTube never says that everyone on the planet has the right to everything without restriction. This has been pointed out directly to you in the past, so I don’t know why you would repeat such a blatantly false claim.
YouTube takes down any content that is *knows for a fact* is infringing. But if it doesn’t know, it need not take it down. That is not saying that everyone has the right to everything. And you know it.
Peter Kafka’s live tweeting found sample quote from Viacom employee: “I am uploading youtube videos under fake grassroots account.YouTube already questioning my identity. Bastards.”
What's this blog war you speak of?
Blog war?
You know what they say about arguing on the internet, right? Unless you have funny graphics, you’re retarded.
So, in an effort to continue this discussion about Viacom wanting to filter the internet, let’s segway slightly and compare/contrast it to surviving Zombie Attacks. To get the discussion started, a helpful infographic is below:
http://img135.imageshack.us/img135/7885/zombieattacks.jpg
Re: What's this blog war you speak of?
Nah, no blog war really. For some reason I was reminded of the South Park episode where Stan and Token were unhappy w/each other and Cartman was shouting “RACE WAR! Come on everybody, RACE WAR!”, even though there was none.
But thanks for playing along perfectly…
This is only an initial set of filings, and of course each party is goint to try and present evidence in the light it feels best serves its cause.
Next, each side will file briefs addressing the merits of the initial brief filed by the other party.
And, finally, each side will file briefs in rebuttal to the second set of briefs.
Contrary to what some may perceive, these filings are only the first in a three part process. It is the seconds and third steps that begin the process of winnowing down the facts and issues.
What's this blog war you speak of?
>>Nah, no blog war really.
Oh. Now I feel used and slightly dirty. I need a hand wipe.
What we do first...
What we need to do is fully commercialize culture.
We need to make sure people are paid for every use of ideas in a cultural setting. You wanna talk about Bob’s Movie? You better pay Bob for talking about his movie first.
The way you get to talk to Bob is through me, at $1k an hour.
Can you say win-win?
A verdict against Google would not mean proactive monitoring
>> Why didn’t Google just press the magic button
>> on their magic machine to figure all of this out!!!
>>
>> It’s magic!
The big problem with this is that all the carrier pigeons would need to be re-trained.
Get heavy handed
Google can remove anything they want, right? See if Viacum would rather… no, just take everything having to do with them offline and keep it this way. even searches. They will come crawling back whining when thier ratings go in the dumpster.
“Viacom’s Real Intent?”
To prevent indies from competing with them.