The issue of Google’s YouTube versus Viacom will not go away and it now has the powerful lobby groups, the Motion Picture Association of America (MPAA) and the Independent Film & Television Alliance (IFTA) pushing the appeal court that will review the $1 billion law suit, to reverse the original court decision.
‘En masse’ the entire creative industry has come out with a single voice in an Amicus Brief filing, saying that Viacom is not on its own here, and that this decision affects everyone. The decision hinges on just how much YouTube executives knew about the copyright abuse that used to (and perhaps still does) go on and how expeditiously it acted in response to take down notices. The thrust of the argument is that YouTube got big by spending over a year thinking about how to automate the takedown of pirated content, and in the meantime placing the onus for finding copyright infringements on the owner, not on itself. It also tried to strong arm the studios into signing deals with it to legally carry the pirated content, by making access to tools for finding pirated content as it was uploaded, contingent upon such deals.
‘The decision of the lower court, if not overturned, will allow businesses to profit by inviting massive amounts of online copyright theft and avoid liability simply by turning a blind eye to the direct, illegal effects of their business models,’ said Daniel Mandil, General Counsel and Chief Content Protection Officer of the MPAA. ‘We are confident that the Court of Appeals will recognize that the lower court’s decision was entirely inconsistent with the Supreme Court’s unanimous decision in Grokster and with the plain language of the Digital Millennium Copyright Act.’
The filing will be part of the evidence that is looked at by the Court of Appeals for the Second Circuit when it reviews the case, which originally went YouTube’s way.
The court has a tough job here in our opinion, and potentially this has far reaching consequences for both Google and the development of Over The Top TV services in the US.
The reason it’s such a tough job is that during the original trial it became clear that both YouTube execs and Viacom execs both knew about the levels of abuse, and both behaved badly. YouTube execs were shown to have uploaded films themselves to make YouTube more popular, while Viacom execs were shown to have uploaded their own films, to make YouTube more obviously culpable. The lower court decided that if they wanted to play those kinds of silly games, then there was no case to answer, but that doesn’t resolve the issue of the rest of the world copying the YouTube example and allowing the uploading of copyright material with impunity.
The truth is that a major fine for Google, and some monitoring of how it goes about keeping copyright material off its video database, would act as a disincentive for anyone else uploading copyright material, although that on its own will not stop piracy in its tracks.
We have seen countless times and the recent Wikileaks debacle illustrates this perfectly, how even when the contents of a server are taken offline, someone, a determined miscreant (a pirate, not Wikileaks) can still find ways to host their content on the internet.
So there is the option of this perhaps makes YouTube less popular because, it has stops having any copyrighted materials on it, that the same content can be hosted in multiple neutral territories, and through multiple publishing methods (torrent sites for instance) even if the core URL is blocked in the US.
The job of the court then is to prevent pirated materials being freely available on YouTube while not destroying YouTube in the process and that’s not easy. Destroy its appeal and others will take its place.
And much of this depends upon one of the most ‘failed and faulty’ piece of legislation ever written, the Digital Millenium Copyright Act, which provides safe harbor limitations on copyright infringement as long as service providers are innocent, in that they are not encouraging pirates to host illegal content on its site.
This new submission tries to spin it that YouTube remains culpable because it has always known about the infringing activity on its site, but chosen to do nothing about it. The MPAA and IFTA argue that the previous decision shifts power in the direction of YouTube and similar service providers.
It’s fairly clear that this onslaught is being set up to redress the balance of power. Google thinks it has won, sticking (more or less) to the letter of the DMCA law. If that’s the case it will never accommodate the position of the studios and broadcasters and networks.
Which is why they are all up in arms over Google TV. So far the Google TV campaign is nowhere near as good as the campaign to get wireless handset vendors to adopt Android. Part of this is because of the poor quality of the UI and the ill-conceived idea that on Google TV, Google should be the sole owner of the UI. Android on a handset does not insist on dictating the look and feel that was built into the Nexus One for example. But it does on the set top.
But politically it is dealing with a different set of beasts on Google TV, in that it wants the companies which are suing it over YouTube content to allow their web content to be viewed on Google TV.
We believe that this needs to happen, one way or another. First off everyone wants a single unified platform design to exist for intelligent TVs, without making all TV look the same, which gives access to the internet. The TV needs an operating system and TV makers are looking for their ‘Windows.’
It can’t BE Windows, because that operating system is too ancient and embedded in a particular look and feel and doesn’t work well enough with the web and its storage footprint is vast and it can’t work in real time. It can’t be Apple’s iOS because Apple only lets that run on its own devices. It HAS to be Android, but no-one wants Android’s owner to be able to see video content. It’s an impasse.
If Google doesn’t get off its high horse and find a way to reach an agreement with the MPAA et al, then they will go to a technology provider and create their own platform for viewing internet delivered OTT TV. Where there was YouTube, they created Hulu. Where there is Android they might create another monster.
What would be the point of Google’s acquisition last week of Widevine to protect commercial content when travelling over the internet? If Google doesn’t settle with commercial content providers that’s just a waste of money.
The problem with companies that are involved with content, producing such an online platform, as we have seen in the UK, and in Wider Europe, with YouView and HbbTV, is that they do not create an open system that everyone can use. They create a single platform for themselves. And that will not allow OTT to take off, you’ll just have Hulu on a set top, and technically the US already has many versions of that.
In our view the Appeal Court has to do something disastrous. Either it backs up the lower court’s decision and Google continues with its UI and YouTube hubris, or it reverses it and we end up in a long haul towards the Supreme Court, and a block on any open platforms for OTT in the US. The right answer is not to wait until the courts give one side or the other a stick to beat each other with, but instead for Google to go cut content deals for Google TV, while reimbursing the content guys for its role in the early days of YouTube. Your move Google.