CASE STUDY

I.T. LAWS AND PATENTS

YOUTUBE
VS
VIACOM

SUBMITTED BY

NAME ROLL NO
MAYUR BHORKAR

NAUSHAD AHMED
18
AJIT GAIKWAD

SAMAY PAWAR

KETS V.G. VAZE COLLEGE OF ARTS,SCI AND

COMM
 DEPT OF INFORMATION TECHNOLOGY
MITHAGAR RD, MULUND(E),MUMBAI-81

ABSTRACT
 Introduction YOUTUBE.COM and
VIACOM

 VIACOM Complaint list

 Copyrighted material owned by

Viacom

 Lawsuit

 Impact on Google/Youtube

 Independent Voices

 Google Response

 The Digital Millenium CopyRight Act ,

1998

 Final Judgement

 Onus on Youtube/Google to prevent

violations
 vs

YouTube is a video-sharing website on which users can upload, share,

and view videos, created by three former PayPal employees in February
2005.[3]

The company is based in San Bruno, California, and uses Adobe Flash
Video technology to display a wide variety of user-generated video
content, including movie clips, TV clips, and music videos, as well as
amateur content such as video blogging and short original videos. Most of
the content on YouTube has been uploaded by individuals, although media
corporations including CBS, BBC, Vevo and other organizations offer
some of their material via the site, as part of the YouTube partnership
program.[4]

Unregistered users may watch videos, and registered users may upload an
unlimited number of videos. Videos that are considered to contain
potentially offensive content are available only to registered users 18 and
older. In November 2006, YouTube, LLC was bought by Google Inc. for
$1.65 billion, and now operates as a subsidiary of Google.

Viacom (short for "Video & Audio Communications") , is a United States-

based media conglomerate with interests primarily in, but not limited to,
cinema and cable television. As of 2010, it is the world's fourth-largest
media conglomerate, behind The Walt Disney Company, Time Warner and
News Corporation.
The current Viacom was created on December 31, 2005 as a spinoff from
CBS Corporation, which changed its name from Viacom to CBS at the
same time. CBS, not Viacom, retains control of the over-the-air
broadcasting, TV production, outdoor advertising, subscription pay
television (Showtime) and publishing assets (Simon & Schuster) formerly
owned by the larger company. However, National Amusements, through
Redstone, retains majority control of Viacom. Predecessor firms of CBS
Corporation include Gulf + Western, which later became Paramount
Communications Inc

Viacom Complaint

1) Defendants encourage individuals to upload videos to the YouTube site,

where YouTube makes them available for immediate viewing by members
of the public free of charge. Although YouTube touts
itself as a service for sharing home videos, the well-known reality of
YouTube’s business is far different. YouTube has filled its library with
entire episodes and movies and significant segments of popular
copyrighted programming from Plaintiffs and other copyright owners, that
neither YouTube nor the users who submit the works are licensed to use in
this manner. Because YouTube users contribute pirated copyrighted works
to YouTube by the thousands, including those owned by Plaintiffs, the
videos “deliver[ed]” by YouTube include a vast unauthorized collection of
Plaintiffs’ copyrighted audiovisual works. YouTube’s use of this content
directly competes with uses that Plaintiffs have authorized and for which
Plaintiffs receive valuable compensation.

2) When a user uploads a video, YouTube copies the video in its own
software format, adds it to its own servers, and makes it available for
viewing on its own website. A user who wants to view a video goes to the
YouTube site . . . enters search terms into a search and indexing function
provided by YouTube for this purpose on its site, and receives a list of
thumbnails of videos in the YouTube library matching those terms . . .
and the user can select and view a video from the list of matches by
clicking on the thumbnail created and supplied by YouTube for this
purpose.
YouTube then publicly performs the chosen video by sending streaming
video content from YouTube’s servers to the user’s computer, where it can
be viewed by the user. Simultaneously, a copy of the chosen video is
downloaded from the YouTube website to the user’s computer.

3) Complaint is not simply providing storage space, conduits, or other

facilities to users who create their own websites with infringing materials.
To the contrary, YouTube itself commits the infringing duplication,
distribution, public performance, and public display of Plaintiffs’
copyrighted works, and that infringement occurs on YouTube’s own
website, which is operated and controlled by Defendants, not users.
(Viacom’s brackets).

Copyrighted material

YouTube has been criticized for failing to ensure that uploaded videos
comply with copyright law. At the time of uploading a video, YouTube
users are shown a screen with the message "Do not upload any TV shows,
music videos, music concerts or advertisements without permission,
unless they consist entirely of content that you created yourself". [46] Despite
this advice, there are still many unauthorized clips of copyrighted material
on YouTube. YouTube does not view videos before they are posted online,
and it is left to copyright holders to issue a takedown notice pursuant to the
terms of the Digital Millennium Copyright Act.

Organizations including Viacom, Mediaset, and the English Premier

League have filed lawsuits against YouTube, claiming that it has done too
little to prevent the uploading of copyrighted material. [47][48][49] Viacom,
demanding $1 billion in damages, said that it had found more than 150,000
unauthorized clips of its material on YouTube that had been viewed "an
astounding 1.5 billion times". YouTube responded by stating that it "goes
far beyond its legal obligations in assisting content owners to protect their
works". Since Viacom filed its lawsuit, YouTube has introduced a system
called Video ID, which checks uploaded videos against a database of
copyrighted content with the aim of reducing violations. [50][51] In June 2010,
Viacom's lawsuit against Google was rejected in a summary judgment,
with U.S. federal Judge Louis L. Stanton stating that Google was protected
by provisions of the Digital Millennium Copyright Act. Viacom announced
its intention to appeal the ruling.[52]

In August 2008, a U.S. court ruled in Lenz v. Universal Music Corp. that
copyright holders cannot order the removal of an online file without first
determining whether the posting reflected fair use of the material. The case
involved Stephanie Lenz from Gallitzin, Pennsylvania, who had made a
home video of her 13-month-old son dancing to Prince's song "Let's Go
Crazy", and posted the 29-second video on YouTube

Copyright issues
YouTube

YouTube—a video sharing website and subsidiary of Google—in its Terms

of Service prohibits the posting of videos which violate copyrights or depict
pornography, illegal acts, gratuitous violence, or hate speech .[97] User-
posted videos that violate such terms may be removed and replaced with a
message stating: "This video has been removed due to terms of use
violation".

YouTube has been criticized by national governments for failing to police

content. In 2006, Thailand blocked access to YouTube for users with Thai
IP addresses. Thai authorities identified 20 offensive videos and
demanded that Google remove them before it would unblock any YouTube
content.[79] In 2007 a Turkish judge ordered access to YouTube blocked
because of content that insulted Mustafa Kemal Ataturk, a crime under
Turkish law.[79] On February 22, 2008, Pakistan Telecommunications
attempted to block regional access to YouTube following a government
order. The attempt subsequently caused a worldwide YouTube blackout
that took 2 hours to correct. [98] Four days later, Pakistan Telecom lifted the
ban after YouTube removed controversial religious comments made by a
Dutch government official[99] concerning Islam.[100]

YouTube has also been criticized by its users for attempting to police
content. In November 2007, the account of Wael Abbas, an Egyptian
activist who posted videos of police brutality, voting irregularities and anti-
government demonstrations, was blocked for three days.[101][102][103]

In February 2008, a video produced by the American Life League that

accused a Planned Parenthood television commercial of promoting
recreational sex was removed, then reinstated two days later. [104][105] In
October, a video by stand-up comic Pat Condell criticizing the British
government for officially sanctioning sharia law courts in Britain was
removed, then reinstated two days later.[106][107] In response, his fans
uploaded copies of the video themselves, and the National Secular Society
wrote to YouTube in protest. During the December 2008 Gaza Strip
airstrikes, YouTube removed videos of air strikes against Hamas that were
posted by the IDF.[108]

In September 2009, the account of artist Suzannah B. Troy, who posted

videos critical of New York mayor Michael Bloomberg and of a change in
term limits which permitted him to run for a third term, was suspended for
28 hours.[109][110]
In 2010, a video by the Caucasus Emirate claiming responsibility for the
Moscow Metro bombings was removed, along with all videos of terrorist
Doku Umarov. The Kavkaz Center credited Russia with pressuring
Youtube to do this.[111]

In February 2007, Viacom sent upwards of 100,000 DMCA takedown

notices to the video-sharing site YouTube. Of the 100,000, notices
approximately 60–70 non-infringing videos were removed under the
auspices of copyright infringement.[11]

On March 13, 2007, Viacom filed a US$1 billion lawsuit against Google
and YouTube alleging massive copyright infringement, alleging that users
frequently uploaded copyrighted material to YouTube—enough to cause a
hit in revenue for Viacom and a gain in advertisement revenue for
YouTube.[12] The complaint contended that almost 160,000 unauthorized
clips of Viacom’s programming were made available on YouTube and that
these clips had collectively been viewed more than 1.5 billion times.
However, the suit was seen by some as hypocritical. They claim that
Viacom, through various programming on subsidiary channels, was
infringing the rights of many Youtube users by uploading their videos
without permission or compensation.

In July 2008, the case generated controversy when District Judge Louis
Stanton ruled that YouTube was required to hand over data detailing the
viewing habits of every user who had ever watched videos on the site. [13]
Judge Stanton rejected Viacom's request for YouTube to hand over the
source code of its search engine system, saying that the code was a trade
secret. [14] Google and Viacom later agreed to allow Google to anonymize
all the data before handing it over to Viacom. [15]

US judge tosses out Viacom copyright suit against YouTube

A US judge Wednesday threw out a copyright lawsuit filed against

YouTube by US entertainment giant Viacom, handing the Google-owned
video site a major legal victory in a closely watched case.

US District Court Judge Louis Stanton said in his 30-page ruling that
YouTube was protected against Viacom's claims of "massive copyright
infringement" by provisions of the Digital Millennium Copyright Act.
The 1998 legislation provides protection for Internet firms from copyright
violations by their users, and the judge ruled that YouTube's actions, such
as quickly removing infringing videos when requested, were in line with the
act.

Google welcomed the ruling, while Viacom vowed to appeal.

"This is an important victory not just for us, but also for the billions of
people around the world who use the Web to communicate and share
experiences with each other," Google general counsel Kent Walker said in
a blog post.

"The decision follows established judicial consensus that online services

like YouTube are protected when they work cooperatively with copyright
holders to help them manage their rights online," Walker said.

Viacom general counsel Michael Fricklas said the company was

"disappointed with the judge's ruling, but confident we will win on appeal.

"Copyright protection is essential to the survival of creative industries," he

said. "It is and should be illegal for companies to build their businesses
with creative material they have stolen from others.

"This case has always been about whether intentional theft of copyrighted
works is permitted under existing law and we always knew that the critical
underlying issue would need to be addressed by courts at the appellate
levels," he said.

"Today's decision accelerates our opportunity to do so."

US movie and television giant Viacom sued Google and YouTube for a
billion dollars in March 2007, arguing that they condoned pirated video
clips at the website to boost its popularity.

The lawsuit was merged with a similar complaint being pursued by the
English Premier League, which said football clips were also routinely
posted on YouTube without authorization.

Viacom's suit charged that YouTube was a willing accomplice to "massive

copyright infringement" and sought more than one billion dollars in
damages.
Viacom's film and television empire includes many youth-oriented networks
like MTV and VH1, popular comedy shows such as Jon Stewart's "The
Daily Show" and the Paramount movie studio.

YouTube was a year-old Internet sensation when Google bought it in a

1.65-billion-dollar stock deal in 2006.

Public Knowledge, a Washington-based digital rights group, and the

Center for Democracy & Technology (CDT) welcomed the ruling.

"We are very pleased with the outcome of this case," said Sherwin Siy,
deputy legal director of Public Knowledge. "It shows that the current
structure of copyright law works well for even the largest of content-hosting
sites.

"As we have continually said, the burden to point out allegations of

infringement is with the content provider, and the burden of taking down
material lies with the service provider.

"Had Viacom won this case, that burden would have shifted dramatically,"
Siy said. "As the law now stands, prompt compliance with take-down
notices shields an online service provider from liability."

"Today's decision isn't just about YouTube," said CDT senior policy
counsel David Sohn. "Without this decision, user generated content would
dry up and the Internet would cease to be a participatory medium."

Responding in the filing to Viacom's more-than-$1 billion lawsuit, the Web

search leader denied virtually all the claims, including that the popular
video-watching site was engaged in "massive intentional copyright
infringement."

"By seeking to make carriers and hosting providers liable for Internet
communications, Viacom's complaint threatens the way hundreds of
millions of people legitimately exchange information, news, entertainment
and political and artistic expression," Google said in answer to Viacom's
March 13 suit.

Google demands a jury trial to respond to allegations in the media

conglomerate's lawsuit, according to legal papers filed on Monday with the
U.S. District Court for the Southern District of New York and provided to
reporters by the company.

Philip Beck of law firm Bartlit Beck, who argued President George W.
Bush's side in the Florida vote-counting case following the 2000 election, is
one of the attorneys from two outside firms named to represent Google.
The Chicago-based attorney also defended Merck in the Vioxx drug case.

Wilson Sonsini, Silicon Valley's best-known law firm, and a frequent

outside counsel for Google, is also joining the team.

DEFENSE: "ABOVE AND BEYOND WHAT LAW REQUIRES"

As expected, Google's defense against allegations of failing to prevent

YouTube users from pirating hundreds of thousands of clips from Viacom
programming hinges on legal protections afforded by a 1998 copyright
protection law.

The Digital Millennium Copyright Act (DMCA) limits liability for Internet
service providers that act quickly to block access to pirated online
materials, once the copyright holder notifies a Web site of specific acts of
infringement.

Viacom's suit challenges the "careful balance established by Congress,"

Google responded. "The DMCA balances the rights of copyright holders
and the need to protect the Internet."

During its controversial nine-year history, the DMCA has acted as the legal
standard defining U.S. copyright law in the digital age, offering a defense
widely relied upon by Internet companies to protect themselves against
copyright actions.

"Google and YouTube respect the importance of intellectual property

rights, and not only comply with their safe harbor obligations under the
DMCA, but go well above and beyond what the law requires," Google's
legal response states.

But a Viacom spokesman countered: "This response ignores the most

important fact of the suit, which is that YouTube does not qualify for safe
harbor protection under the DMCA."

Michael Kwun, Google's managing counsel for litigation, said in an

interview at its Silicon Valley headquarters that the company already offers
copyright holders several technologies to identify pirated video. But he
declined to specify a timeline for when Google will make so-called "video
fingerprinting" technologies available to media rights owners.

Google's filing takes a technical approach to questions raised by the

lawsuit, leaving aside questions of precedent or indications of eventual
legal strategy for later proceedings. Motions for summary judgment and
other legal moves would only occur at a later stage, Kwun said.

Viacom lawsuit and adverse effects on Google stocks!

In a move that to some may seem a bit too calculated, entertainment

mammoth Viacom announced a $1 billion lawsuit against Google’s recently
acquired YouTube web presence. The suit claims that YouTube has aired
over 160,000 video clips that have been viewed more than 1.5 billion
times, demonstrating a "brazen disregard" for Viacom’s copyright
possession.

YouTube was founded in February 2005 and bought by Google Inc. in

Nov. 2006. Since the company has been airing video clips for two years,
it’s not a question out of the realm to ask why Viacom has waited until
Google, with its much deeper pockets, purchased the site to file its suit.

"YouTube is a significant, for-profit organization that has built a lucrative

business out of exploiting the devotion of fans to others' creative works in
order to enrich itself and its corporate parent Google," said Viacom in a
statement. "Their business model, which is based on building traffic and
selling advertising off unlicensed content, is clearly illegal and in obvious
conflict with copyright laws."

If Viacom was looking forward to suing a more financially-viable company,

they picked well. Google has over $11 billion in cash on its balance sheets,
making it a prime target. Experts, however, say that if a copyright is not
protected a company can lose future control of a property.

"Every copyright holder has to be seen to defend their rights or otherwise

they risk surrendering them altogether," said Brian Wieser, senior vice
president at Magna Global, a media buying firm based in New York. In an
interview, Wieser told CNN Money.com, "So even where there are minor
infractions, if you are not defending a trademark or other copyrighted
content, you risk losing those rights. It's too important."

YouTube, however, presents a unique set of problems for businesses.

Many pundits credit YouTube with bringing back an audience to a faltering
Saturday Night Live franchise after airing a specific episode from the 2005
lineup. Other media firms have had similar success from the airplay on
YouTube.

In response to the filing, YouTube and Google said that they were
"confident that YouTube has respected the legal rights of copyright holders
and believe the courts will agree."

Verdict

On Jue 23, 2010, the judge dismissed the lawsuit and found that YouTube
was indeed protected by the safe harbor specified in the Digital Mellinium
Copyright Act.

The Issues

YouTube is a video hosting service that lets users submit their own
content. Although YouTube's terms of service clearly state that users are
forbidden from uploading copyrighted material without permission of the
copyright holder. Nonetheless, this rule was ignored by many users.

Viacom alleges:

YouTube deliberately built up a library of infringing works to draw traffic to

the YouTube site, enabling it to gain a commanding market share, earn
significant revenues and increase its enterprise value.

Google General Counsel Kent Walker responded:

YouTube has become even more popular since we took down Viacom's
material. We think that's a testament to the draw of the user-generated
content on YouTube. We've been very successful forging thousands of
successful partnerships with content owners -- like Warner Music,
Sony/BMG, Universal Music, BBC, and the NBA -- interested in finding
new audiences for their programming. These partnerships offer the
YouTube community access to some of the best content in the world,
ranging from entertainment and sports to politics and news. And we're only
getting started.

The Digital Millennium Copyright Act

The part of this case that has the most potential for legal fallout is the "safe
harbor" clause of the Digital Millennium Copyright Act, or DMCA. The safe
harbor clause may provide some protection for companies with services
that host content without review, so long as infringing content is promptly
removed.

Google maintains that they have not violated copyright law. "We are
confident that YouTube has respected the legal rights of copyright holders
and believe the courts will agree." (Google responds to Viacom’s $1b
YouTube lawsuit)

The problem is that large companies, such as Viacom, face a huge burden
to manually search for infringing content and notify Google. As soon as
one video is removed, another user may be uploading a copy of the same
video.

Filtering Software

The social networking site, MySpace started using filtering software in

February 2007 to analyze music files uploaded to the site and prevent
users from copyright infringement.

Google's delay in implementing a similar system has some critics like

Viacom claiming that Google may be intentionally hesitating. Viacom
claims that Google should be taking the steps to proactively remove
content rather than waiting for complaints:

In fact, YouTube’s strategy has been to avoid taking proactive steps to

curtail the infringement on its site, thus generating significant traffic and
revenues for itself while shifting the entire burden – and high cost – of
monitoring YouTube onto the victims of its infringement.
Google clarified their development status with video filtering software and
said that the tool required a lot of fine-tuning before it could be used to
drive automated policy decisions.

According to an Associated Press article, Google lawyer, Philip Beck told a

U.S. District Judge that Google hoped to have a system place as early as
September.

Google's system, Claim Your Content, will make it faster for copyright
holders to have content removed. However, it does not look like it will
prevent infringing material from being uploaded in the first place.

The Impact

This lawsuit may just be a negotiating tactic, and Viacom and Google may
settle out of court with a deal. However, if the suit goes to court, it could
impact the way many Web 2.0 companies conduct business in the future.

Stop the Falsiness

In an ironic twist, on March 22, The Electronic Frontier Foundation (EFF),

Brave New Films, and Moveon.org announced that they were suing
Viacom for requesting the removal of a video they did not feel was
infringing on Viacom's copyright. Learn more about the Moveon lawsuit
against Viacom

Google Seeks Dismissal

Google formally responded to Viacom's lawsuit on Monday, April 30th, by

asking for dismissal. Google maintains their claim that they've complied
with the DMCA and that Safe Harbor provisions should apply in this case.

User Data Disclosure

In July 2008, Google was ordered to disclose user data as part of the
discovery proceedings for the lawsuit. Viacom and Google both claim that
personally identifying information was removed from the data before the
transfer.
Independent Voices

The basic argument here is a simple one. YouTube's founders hoped to

build a massive user base as quickly as possible and then sell the site.
"Our dirty little secret... is that we actually just want to sell out quickly," said
Karim at one point. In an e-mail, Chen talked about “concentrat[ing] all of
our efforts in building up our numbers as aggressively as we can through
whatever tactics, however evil.”

That's important because the Digital Millennium Copyright Act protects

service providers that engage in "storage at the direction of the user." It
has been a huge boon to user-generated content sites, and it is YouTube's
key defense. But the DMCA puts limits on the generous safe harbors it
provides: operators cannot have actual knowledge of infringement, they
must take down infringing materials when asked, and they cannot profit
from the infringement.

FINAL JUDGEMENT

The Viacom copyright infringement case against Google and YouTube has
been a long strange journey since it started, but it looks like the first major
chapter is over: the federal court today ruled that Google falls under the
"safe harbor" provision of the DMCA which protects service providers from
liability for user content. Roughly, that means Google isn't liable for
copyright infringement on YouTube in general: it can only be liable for
infringing specific copyrighted works, and since YouTube pulls videos as
soon as anyone complains, it can't get in trouble. Of course, Viacom isn't
too happy about this decision and has vowed to appeal, but we think it
makes sense -- otherwise Viacom could sue and win for things Google
didn't even know about, like, say, the music videos Viacom employees
covertly uploaded themselves and then demanded be removed. We'll see
what happens -- in the meantime, we'll be celebrating by watching as much
YouTube as possible.
Responsibility of Youtube.com to Check future Violations

Under current laws, YouTube must remove the unauthorized clips once the
owner has identified and alerted the company about them. But the problem
persists because even as YouTube removes one clip, another is uploaded
by a different user.

Viacom ordered YouTube to take down more than 100,000 clips. YouTube
said it complied -- and indeed, a search for certain shows turns up notes
that the clips have been removed because they violated copyright rules.

In a statement, Google said that it is "confident that YouTube has

respected the legal rights of copyright holders and believe the courts will
agree."