We won’t try to be complete in our coverage of the YouTube Viacom law suit, because there is so much stuff out there. Suffice it to say that this week there were more filings from both sides, filed with the court that may eventually try this suit, and it involved lots of revelations.
The last round of documents showed that both management teams, those at YouTube and at Viacom, had indulged in loading Viacom material to the site; one side so it could point a finger, and the other because it thought it was immune. That was almost enough for any judge to say ‘Stop being silly’ and send them into a room to sort themselves out a deal.
But the tone of all the coverage this week is that there are so many swearwords and so much ire in this suit that neither side could possible step down and settle and this is going to take years.
We beg to differ, but first some of the juicier snippets. Viacom had itself tried to buy YouTube, but unlike Google it had never got around to a) doing any due diligence b) discussing a price and as a result it lost the prize and that’s one reason for it hating Google so much.
Then after Viacom filed its 2007 $1 billon law suit, Google offered it a guaranteed deal with $592 million, if it signed a distribution deal with YouTube, but Viacom haggled and wanted $700 million, so no deal was done.
In essence Viacom is taking the view that Google wants to pick which bits of law that it obeys and is selectively applying both the Supreme Court comments about Grokster being treated under existing laws and the Digital Millenium Copyright Act, i.e. the part which says that it must take down content which is identified in take-down notices. The rest of the DMCA (and the Grokster decision) seems to have been totally ignored by the company, such as failing to take the most basic precautions to prevent further and repeated infringements and to avail itself of fingerprinting to identify such content. The thing that Viacom hated the most was the way Google was saying ‘sure you can have our tools to spot pirated content, but only if you do a deal with us first.’
Viacom may have a point and in the end Google did invent its own fingerprint technology and take a pretty long time about it too, and largely it is thought to be only partially effective. Google for its part has aggressively pursued a deal with Viacom, saying it had the best content of any content owner.
But all of this is simply fuel for a fire that neither one of them can afford to stoke. Google TV was launched this week without any major new content deals, and until Google’s YouTube sibling can be brought into line in a manner trusted by the entire content community (not just Sony), it will never be in a position to put anything unique on Google TV.
Worse than that, if this suit goes on for too much longer Google will not be in a position to combat either Apple when it comes out with iTunes TV, or Hulu, when it finally puts together a subscription service with deep content.
If neither party will move from entrenched legal positions they both risk winning the battle, but losing the war, and like so many other legal combatants before them, the outcome will be irrelevant and both of them will have lost more than the $1 billion that the case has at stake.
In particular no-one right now wants to push the major studios towards an iTunes style deal with Apple, that could tie up studios like the record labels were tied up in a ‘fait accompli’ pricing, ceding all OTT control to Apple. But if Google TV can’t get itself to be seen as a trusted ‘other’ option, then this could easily happen