Google this week formally denied Viacom’s charges that it purposely and knowingly allowed Internet users to illegally post Viacom shows like “South Park” and “SpongeBob SquarePants” on its YouTube video site.
Google, which acquired YouTube for $1.65 billion with the hope of becoming the Net’s dominant video service, said it would vigorously fight the $1 billion copyright infringement lawsuit. To that end, it has hired one of the country’s best courtroom law firms, Chicago-headquartered Bartlit Beck Herman Palenchar & Scott LLP, known for its tough and well-prepared courtroom tactics. Bartlit Beck represents Merck, the drug company that makes Vioxx, in the many suits filed over the painkiller. It won four of the five Vioxx cases against Merck last year, overcoming what many thought were impossible odds.
“We feel very strongly about our legal position and we are ready to take it to court. They are making allegations of copyright infringement and we are denying them,” said Catherine Lacavera, Google’s litigation counsel.
Google’s defense calls in to play the way the Internet works and the way people use the Net. Google also attempts to shield YouTube with the 1998 Digital Millennium Copyright Act, which provides “safe harbor” for companies like Google that do not do the actual posting of copyrighted content without permission.
In the papers it filed Monday in a New York Court, Google said Viacom’s suit “threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.”
“It’s our position that this lawsuit shouldn’t have been brought,” said Lacavera. “We think the DMCA was enacted for Web sites like YouTube. That was what was contemplated by its drafters.”
Under the Digital Millennium Copyright Act, companies such as YouTube are required to remove copyrighted material when its owner alerts them that it has been posted to their site without permission. Google’s defense is that it’s gone “well above and beyond what the law requires.”
One of YouTube’s main draws, in addition to user-generated content, is the intact and/or doctored (mashed) versions of clips from copyrighted TV shows that belong to Viacom and other media companies.
Viacom had said, “It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it. It is simply not credible that a company whose mission is to organize the world’s information claims that it can’t find what’s on YouTube.”
Prior to filing the suit, the two companies tried to reach a deal under which Google would post Viacom’s content on YouTube and the two would share the advertising revenue. YouTube has similar deals with other TV companies. Viacom has since demanded that YouTube remove over 100,000 clips from the site. YouTube complied but thousands more immediately appeared. Viacom said in the suit that it had found over 150,000 of its videos on YouTube that had been viewed 1.5 billion times.
“It’s not hard” to identify unauthorized clips, said Viacom general counsel Michael Fricklas in a New York Times interview. “They’re not trying in good faith to do the best they can.”
If Google were to lose the case, assuming it makes it to court, then it will have a hard time building YouTube into a dominant site for prime-time video entertainment. Major video producers are already shunning YouTube, with many building their own entertainment Web sites, as the UK’s ITV announced this week it would do. A loss in the courts could also bedevil Google in other matters where it seemingly walks on the edge of the copyright laws at times.
However, there are questions whether the case will ever make it to court, on the theory that the suit is just a ratcheting up of the negotiations that had been going on between Google and Viacom. “War is merely a continuation of politics,” said Carl von Clausewitz, the legendary soldier, military historian and military theorist. Had he been a lawyer, he might have said, “A lawsuit is merely a continuation of negotiations.”