NEW YORK, NY — Representatives of Google Inc. say they are confident that video sharing site YouTube.com and other services offered by Google are protected under current copyright law and that they believe the lawsuit filed earlier this week by giant media firm Viacom against YouTube.com ultimately will fail.In reference to Google’s $1.65 billion acquisition of YouTube, the Viacom complaint asserts that “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.” The complaint was filed Tuesday in U.S. District Court in New York
Attorneys for Google and YouTube argue that their services and actions fall within the “safe harbor” provisions and other protections provided under the Digital Millennium Copyright Act (DMCA), and that the companies plan to defend themselves vigorously against all claims of copyright violation.
“Here there is a law which is specifically designed to give Web hosts such as us, or… bloggers or people that provide photo-album hosting online… the ‘safe harbor’ we need in order to be able to do hosting online,” said Google’s associate general counsel for products and intellectual property, Alexander Macgillivray, in an interview with the Reuters news service.
“We will never launch a product or acquire a company unless we are completely satisfied with its legal basis for operating,” added Macgillivray.
Legal experts interviewed about the lawsuit are divided as to Viacom’s prospects for success in the case.
Joseph Potenza, a partner at the Washington law firm Banner & Witcoff, told the New York Times that Viacom has a case, based on “the amount of material and the financial benefit that Google is getting.”
Potenza said Google and YouTube would have a defense if they had not been told about the presence of copyrighted material, or if they were not benefiting financially from the display of the infringing content – but neither of those defenses is available in this case.
Annette Hurst, who represented Napster founder Shawn Fanning in his legal battles against the music industry, countered that Viacom’s complaint “is very light on any facts that would suggest that YouTube in fact encouraged people to infringe copyrights.”
Hurst observed that Viacom’s lawsuit maintains that YouTube failed to use filtering technology to discourage the posting of copyrighted materials, “but it doesn’t identify a technology that could be used.”
Richard Cotton, corporate counsel for NBC, sent a letter to Google last week noting that YouTube continued to carry unauthorized video clips from NBC television shows. According to the New York Times, Cotton threatened to file a lawsuit on behalf of NBC if Google failed to implement some manner of filtering technology on YouTube.
Macgillivray said that Google was developing such filters, but noted that such technology cannot automatically determine whether a clip is permissible under “fair use” provisions under copyright law.
Regardless, Macgillivray contends, precedent is on the side of Google and YouTube, and the company plans to proceed with its services – and its acquisitions – undeterred by lawsuits and threats thereof.
“This is an area of law where there are a bunch of really clear precedents, so Amazon and eBay have both been found to qualify for the safe harbor and there are a whole bunch more,” Macgillivray said, according to Reuters. “We will continue to innovate and continue to host material for people, without being distracted by this suit.”
