Google, YouTube hit with $1B copyright suit

Viacom claims thousands of unauthorized video clips can be viewed on YouTube

In the lawsuit, Viacom alleges that "YouTube's brazen disregard of the intellectual property laws fundamentally threatens not just [Viacom], but the economic underpinnings of one of the most important sectors of the United States economy."

The lawsuit also alleges that YouTube "purports to be a forum for users to share their own original 'user generated' video content. In reality, however, a vast amount of that content consists of infringing copies of [Viacom's] copyrighted works, including such popular (and obviously copyrighted) television programming and motion pictures as SpongeBob SquarePants, The Daily Show with Jon Stewart, The Colbert Report, South Park, Ren & Stimpy, MTV Unplugged, An Inconvenient Truth, Mean Girls and many others."

Through its operations, YouTube "knowingly reproduces and publicly performs the copyrighted works uploaded to its site," the lawsuit alleges. "Defendants know and intend that a substantial amount of the content on the YouTube site consists of unlicensed infringing copies of copyrighted works and have done little or nothing to prevent this massive infringement."

While YouTube has a process where copyright holders can identify postings of material that infringes on copyrights so that it can be removed, YouTube makes the process onerous on the copyright holders, the lawsuit alleges.

According to the lawsuit, YouTube "has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it 'take down' the infringing works."

The problem with that process, the lawsuit continues, is that even after being removed, the infringing video is often uploaded again by another YouTube user and it appears again on the site within hours.

"Defendants have actual knowledge and clear notice of this massive infringement, which is obvious to even the most casual visitor to the site," the lawsuit states. "Indeed, the presence of infringing copyrighted material on YouTube is fully intended by defendants as a critical part of their business plan to drive traffic and increase YouTube's network, market share and enterprise value, as reflected in the recent purchase price of US$1.65 billion."

Instead of allowing copyrighted materials to be posted and viewed on its Web site, YouTube "has the right and ability to control the massive infringement on its site" through its Terms of Use, which users must agree to when using the site, the suit alleges. "Through its Terms of Use, YouTube imposes a wide number of content-based restrictions on the types of videos uploaded to the site, and reserves and exercises the unfettered right to block or remove any video which, in its sole discretion, it deems 'inappropriate.' YouTube proactively reviews and removes pornographic videos from its library, but refuses to do the same thing for videos that obviously infringe plaintiffs' copyrights."

"YouTube has failed to employ reasonable measures that could substantially reduce, or eliminate, the massive amount of copyright infringement on the YouTube site from which YouTube directly profits," the lawsuit alleges. "Even though defendants are well aware of the rampant infringement on the YouTube website, and YouTube has the right and ability to control it, YouTube's intentional strategy has been to take no steps to curtail the infringement from which it profits unless notified of specific infringing videos by copyright owners, thereby shifting the entire burden -- and high cost -- of monitoring YouTube's infringement onto the victims of that infringement."

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Todd R. Weiss

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