Viacom Set to Appeal in YouTube Case

By SAM SCHECHNER

Viacom Inc. says a new wave of digital piracy could threaten the U.S. media business unless federal courts overturn its defeat in a copyright-infringement lawsuit against Google Inc.'s YouTube video-sharing site.
The New York-based owner of MTV, Comedy Central and Paramount Pictures is expected as early as Friday to file its appeal of the June decision with the Second U.S. Circuit Court of Appeals. To add firepower to its case, Viacom has brought in former U.S. Solicitor General Theodore Olson to argue.

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Viacom, which owns Comedy Central and other channels, claims Google sought to exploit its copyrighted works, such as 'The Daily Show with Jon Stewart.'

Dating from the dawn of the Web-video era, the case has divided many in the media and technology worlds. It centers in part on how aggressively YouTube—and by extension video-sharing sites like it—must police what users upload to its servers in order to avoid being liable for any unauthorized clips.
In June, a federal judge in Manhattan ruled strongly in favor of Google's motion for summary judgment, saying YouTube is protected from copyright claims by "safe harbor" provisions in the Digital Millennium Copyright Act. The 1998 law shields some types of online entities from liability if they meet certain conditions, such as removing content at the request of the copyright holder. "General knowledge that infringement is 'ubiquitious' does not impose a duty on the service provider to monitor or search its service for infringements," the judge wrote.
Viacom, for its part, has claimed that YouTube had intentionally sought to exploit tens of thousands of Viacom's copyrighted works, such as clips of "The Daily Show with Jon Stewart," and doesn't qualify for those protections. "It is extremely destructive if the precedent is set in the wrong way," Mr. Olson said in an interview.

A Google spokeswoman said in a statement: "We regret that Viacom continues to drag out this case. The court here, like every other court to have considered the issue, correctly ruled that the law protects online services like YouTube, which remove content when notified by the copyright holder that it is unauthorized. We will strongly defend the court's decision on appeal." She declined to comment further.
Some legal observers have argued that the case has become less significant since it was filed in early 2007. Since then, YouTube, interested in licensing professional content, has voluntarily started using audio and video recognition technology to automatically identify unauthorized clips as they are uploaded and let rights-holders take them down immediately or place ads in the videos to generate revenue. Those systems work well, executives at several media companies have said, and Viacom isn't suing YouTube for its behavior after mid-2008.
On Thursday, Google announced changes to its copyright rules, saying that over the next several months it will be able to respond to requests to take down copyrighted material on YouTube and other Google sites in 24 hours or less.
In a post on the company's blog, Kent Walker, Google's general counsel, also said the company will do a better job of restricting copyright violators on the Web from participating in Google's advertising network, known as AdSense.
Both the Motion Picture Association of America and the Recording Industry Association of America, two media trade groups, issued statements lauding the moves as positive "first steps."
"The state of the art has just moved on in the last four years," said Eric Goldman, associate professor at Santa Clara University School of Law, who believes that Google has the better case. "We know how the story turned out; everyone won."
Viacom argues, however, that establishing underlying legal precedents in its favor has become more crucial, as the Internet becomes a bigger vehicle for commerce. Broadband speeds are faster, and media companies are increasingly looking to the online distribution of video as a future of the business, its executives say.
"It's as if to say, well we've stopped robbing banks, so let's just forget the whole thing and move on," Mr. Olson said. "It is exceedingly important in this era of intellectual property and new creative endeavors that we continue to respect what people create," he added.
Mr. Olson, who was an assistant attorney general in the Reagan administration, has a long history with high-profile federal cases. He represented Citizens United in its successful challenge of campaign finance laws, and is now on the team challenging California's Proposition 8, which bans same-sex marriage. A federal appeals court in San Francisco is slated to hear arguments in that case Monday.
Some intellectual-property lawyers say Viacom's appeal could focus in part on how specifically aware of copyright violations YouTube must have been to be denied protection under the 1998 law.
In the June decision, the judge said that a jury could find YouTube "welcomed" copyright infringing material, but that "general" awareness of infringement wasn't the same as specific knowledge, and that YouTube removed videos when asked.
Andrew Berger, counsel at Tannenbaum Helpern Syracuse & Hirschtritt LLP, who isn't involved in the case but supports Viacom's position, says one could argue less specific knowledge should qualify. "When you welcome a thief in your house, you probably know he's there," he said.
Some major technology companies have supported Google, while other media companies have backed Viacom.]
Rick Cotton, general counsel for General Electric Co.'s NBC Universal, said precedents around online video are important. "You want new, legitimate access points to evolve, and those new and innovative services are likely to be killed in the crib by theft if the Internet is simply awash with stolen content," he said.

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