Among The Clips That Viacom Sued Google Over, About 100 Were Uploaded By Viacom Itself

from the sorta-demonstrates-the-problem,-doesn't-it? dept

Wed, Dec 30th 2009 9:39am — Mike Masnick

Copyright maximalists who hate the DMCA's safe harbors often claim that service providers can easily tell what content is infringing and which is not. This is, in fact, a key part of the argument made by Viacom in its lawsuit against Google over YouTube. It claims that YouTube must know that the clips are infringing and should be taken down. There's just one problem: even Viacom doesn't seem to know which clips are infringing and which are not. It turns out that, among the many YouTube clips included in the lawsuit, approximately 100 were uploaded on purpose by Viacom. Yes, you read that right:

Viacom sued Google over clips it claimed were infringing, that Viacom purposely uploaded to YouTube.

That alone should show how ridiculous Viacom's claims are in this lawsuit. There is simply no way for Google to know if clips are uploaded legitimately or not. Oddly, however, the court has now allowed Viacom to withdraw those clips, but lawyers like Eric Goldman are questioning how this isn't a Rule 11 violation for frivolous or improper litigation. But, more importantly, it demonstrates that even Viacom has no idea which clips are infringing and which are authorized. Given that, how can it possibly say that it's reasonable for Google to know?

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Filed Under: authorized, copyright, dmca, videos
Companies: google, viacom, youtube

33 Comments

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RD, 30 Dec 2009 @ 9:59am

Easy
"But, more importantly, it demonstrates that even Viacom has no idea which clips are infringing and which are authorized. Given that, how can it possibly say that it's reasonable for Google to know?"

Why, Mike, this is simplicity iteself.

It's becuase IT'S ON TEH INTERNETS!

Dont you know? Once something is on the BIG, BAD, IT-MUST-BE-INHERENTLY-EVIL-BECAUSE-ITS-TECHNOLOGY INTERNET, it immediately becomes vilified, branded a "threat" and "must be illegal" and is therefore the fault of whomever is on this evil internet thing.

Also, Big Media and Corps believe that they are SO righteous, that everyone simply SHOULD KNOW what MIGHT POSSIBLY be infringing. They should also be EXPECTED to DEFEND BM&C rights at THEIR OWN EXPENSE, because, after all, might (rich) makes right.
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AJ, 30 Dec 2009 @ 10:31am

Rant
Que Anti-Mike rant about how wrong Mike is in.... 3....2....1...
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The Anti-Mike (profile), 30 Dec 2009 @ 10:40am

Re: Rant
Rogue employees? Someone from the anti-copyright universe working at Viacom?

Same defenses used by the other side. All's fair.

Carry on.
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Anonymous Coward, 30 Dec 2009 @ 10:44am

VIACOM is EXEMPT from RULE 11
Rules are for little people.
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Anonymous Coward, 30 Dec 2009 @ 10:46am

Re: Re: Rant
If it was a rogue employy or someone from the anti-copyright universe working @ Viacom, why would they be removing the videos from the lawsuit instead of claiming that?

Why does the TD community waste time even responding to you UGGH. I think you're just trolling for trollings sake at this point.
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Brian (profile), 30 Dec 2009 @ 10:47am

Well its a simple really. Google is run by wizard who are of course magic. Magic comes from knowledge and power. Knowledge and power must always be equal to form magic. Knowing this, we can therefor calculate their total knowledge. Since their power appears to be limitless we can therefor calculate their knowledge is thus as well. Therefor we come to the conclusion that Google is all knowing.

Using the above it is obvious Google should just know these things and therefor tell what is and is not infringing.
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Shawn (profile), 30 Dec 2009 @ 10:55am

Re: Re: Rant
Rogue employees? Someone from the anti-copyright universe working at Viacom?

If that were the case why would Viacom remove them from the lawsuit? How does that change the argument that GoogleTube is in no position to determine whether a video is infringing or not?
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pixelm1 (profile), 30 Dec 2009 @ 11:14am

well reportedly it's 200 clips out of 63,000. And last I checked Google was engaged in the search business. Maybe they could tell on a few of the other 62,800? Or maybe they decided they wanted to build a huge video business and conveniently claim that they were "shocked, shocked to find that piracy was going on"? It's pretty interesting that there was no porn, or other offensive stuff, etc. etc.
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Marcus Carab (profile), 30 Dec 2009 @ 11:20am

Re:
Fair enough... but also, last I checked, Viacom was in the running-their-own-business business - which one might expect to include keeping track of the official, authorized usage of their content, and recognizing such use when they see it. If the videos were indistinguishable to them, how could they possibly be distinguishable to Google?
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mattarse (profile), 30 Dec 2009 @ 11:20am

Does this mean I can sue Google for hosting the videos of my cousins birthday party I uploaded last year? I mean I own the copyright on that...
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Mike Masnick (profile), 30 Dec 2009 @ 11:22am

Re:
Pixelm1, would it be fair to state that you are intimately familiar with this particular case?

well reportedly it's 200 clips out of 63,000. And last I checked Google was engaged in the search business. Maybe they could tell on a few of the other 62,800? Or maybe they decided they wanted to build a huge video business and conveniently claim that they were "shocked, shocked to find that piracy was going on"? It's pretty interesting that there was no porn, or other offensive stuff, etc. etc.

You can tell porn by looking at it. You cannot tell if the marketing department at Viacom uploaded a clip by looking at it.

You also can't tell if the marketing department at Viacom uploaded the clip through any "search" technology that I know of.
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The Anti-Mike (profile), 30 Dec 2009 @ 11:42am

Re: Re:
You cannot tell if the marketing department at Viacom uploaded a clip by looking at it.

they could if they were required to know who is uploading to their system, no?
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Anonymous Coward, 30 Dec 2009 @ 11:44am

Re:
From a technical point of view, it is relatively easy to make a computer program that can detect porn videos (they are all the same), but virtually impossible to write a program that finds infringing material.
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Anonymous Coward, 30 Dec 2009 @ 11:44am

Re: Re: Re:
No.
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Designerfx (profile), 30 Dec 2009 @ 11:45am

Re:
if even a shred of contradiction to your claims is your own cause in a law case, you're basically screwed.

unless the judge is in verizon's pocket, this will end the case real fast.
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Anonymous Coward, 30 Dec 2009 @ 11:57am

Re: Re:
Google could do it for a billion dollars. Better yet, the content industries should lobby the political class to get the public to pay for it.

Problem solved!
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Alan Gerow (profile), 30 Dec 2009 @ 12:16pm

Re: Re: Re:
They would only know what user account uploaded the video. They would not know if that user has proper permissions to upload that video.

In which case Viacom would have to let them know that they own the copyright and that the user account in question does not. Then they would need to let Google know.

And this they can do now. But since they can't even manage to keep track of which videos they uploaded and which they have rights to, how is Google going to magically have this information? Essentially, Viacom is asking Google to know more about its business than it does itself.
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The Anti-Mike (profile), 30 Dec 2009 @ 12:56pm

Re: Re: Re: Re:
You missed the point. We aren't talking "what user account uploaded it" but "who owns the user account". If the an account is "bob smith" and bob smith is a confirmed Viacom employee (confirmed by viacom) then away you go.

A generic bob smith would have no rights, and then it would be easy to know which videos are up with permission and which are not.

It's not about username, it's about knowing WHO the user really is. When you remove the anonymous factor, most people won't intentionally violate copyright.
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Lame Meter, 30 Dec 2009 @ 12:57pm

Re: Re: Rant
Lame, even by your standards.
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Anonymous Coward, 30 Dec 2009 @ 1:05pm

Re: Re: Re: Re: Re:
talk about missing the point
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Anonymous Coward, 30 Dec 2009 @ 1:07pm

Re:
Yes, they should've known better
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Michial Thompson, 30 Dec 2009 @ 2:07pm

It is *possible* to ID unauthorized content
Technically it is possible for Google or any other company to identify unauthorized content. The problem is that Google would first need to be provided the unauthorized content to compare the uploads to, and that provided content would need to come to google with proof of ownership.

Then of course we won't take into account the processing power it would take to compare every upload to every unauthorized product.

----

I agree that the MPAA and RIAA etc all have a right to protect their property, but this crap of sending extortion letters and wasting taxpayers money on ridiculous lawsuits and forcing legitimate content offline etc needs to be put to rest.
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Alan Gerow (profile), 30 Dec 2009 @ 2:12pm

Re: Re: Re: Re: Re:
And *poof* computers can magically figure all that out.

But seriously, what you're suggesting is not only impractical, but practically impossible.

1. What's stopping Viacom from simply searching for its content in YouTube and excluding usernames it owns from the lawsuit? Nothing, because it should know the usernames its employees are using to upload videos. Yet, 200 videos purposefully uploaded by approved Viacom employees on accounts Viacom should have approved were included in their lawsuit. So, Viacom can't keep track of their own legally uploaded videos through user accounts that it knows about.

2. Using a simple username system doesn't tell you WHO is uploading videos. Simply, what user account is uploading videos. If marketing exec A doesn't properly log-out, anyone can upload videos through their account. So, an account does nothing to guarantee you information on who you're dealing with. It's impossible to truly know WHO is behind a user account.

3. You can't ever know without a reasonable doubt WHO is on the other end of a web connection. And essentially, you're expecting Google to know Viacom's employees better than Viacom knows them, because Google is supposed to know which Viacom employees should be uploading stuff when Viacom can't be bothered to keep track of its own staff and what they're up to itself.

Essentially your solution is ineffective at best. The only foolproof method is Viacom to know what it owns, what it uploads, and actually be marginally competent to tell the difference between unlicensed uploads and THE STUFF IT PUT UP ITSELF.

And all the solutions involve Viacom knowing its own business. And Viacom has proven it doesn't. Not to mention knowing WHO someone is, doesn't mean you know what they have rights to upload ... nor is it Google's responsibility to keep track of that for Viacom.
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The Groove Tiger (profile), 30 Dec 2009 @ 2:29pm

Re: Re: Re: Re: Re:
"A generic bob smith would have no rights"

A generic bob smith tried to sell me a chair he said he had made. Since he has no rights, I punched him in the face and told him I had no way to know if he wasn't infringing. Then I took, nay, confiscated his chair and held it in my home for safekeeping.

Everyone knows only big chair companies can possibly have the rights to build chairs.
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Anonymous Coward, 30 Dec 2009 @ 3:45pm

Re: Easy
Viacom are Cunts.
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hsushoe, 30 Dec 2009 @ 4:07pm

Viacom Fails
Why couldn't YouTube and Viacom strike a deal that would benefit both parties. Viacom just fucked themselves over.
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FTFY, 30 Dec 2009 @ 5:15pm

Re: It is *possible* to ID unauthorized content
Technically it is possible for Google or any other company to compare uploaded content to submitted copyright content and determine probability of match.
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Rasmus, 30 Dec 2009 @ 7:35pm

Re: Re: Re: Re: Re:
Its NOT about knowing WHO the user is. Its about knowing if the user uploading content has the rights to that content. And it doesn't matter if you know its Viacom tha officially uploads content or not. Because there is absolutely no way you can know if Viacom actually has the rights to the content they upload, you would have to ask them to provide all legal documents and all contracts with other rightsholders they have to be sure. And that doesn't do it either because you must also investigate all legal documents of the rightsholders that sold or licensed rights to Viacom to make sure they actually had the rights they sold to Viacom. And then you would have to look at the subcontractors subcontractors, and their subcontractors and so on until you actually find the most original rightsholder.

Problem is, most of these contracts are declared trade secrets and surrounded by non-disclosure agreements. So how on earth is anyone to know who actually has the rights to upload anything?
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HolaJohnny (profile), 30 Dec 2009 @ 8:21pm

Lets simplify the equation
Google must sort through 63,000 videos that it has no prior knowledge of. Viacom had to sort out 100 videos it had complete knowledge of. Anyone else see a logic issue here? Oops my mistake where does logic factor into legal cases...
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Michael, 31 Dec 2009 @ 4:34am

Re: It is *possible* to ID unauthorized content
It is not possible, from a technical standpoint, to identify infringing content for a number of reasons.

First, it is clear that many of the rights holders do not know what they own. We have seen a bunch of cases recently in which content holders are suing over content they do not actually own. In addition, we have companies re-recording music (in some way) and claiming a new copyright over it - and the courts have yet to determine if this is infringing, or a new copyright.

Second, there would need to be some kind of database to check content against. A system for copyright in which you have to upload music so Google can compare to it. This does not exist and I'm sure the record companies would find it a burden to build and maintain.

Next, the courts have not managed to figure out how much content is infringing. Is a 5 second clip enough? So does Google need to compare parts of clips to see if they infringe? What if someone uploads 3 5 second clips of different songs stuck together in a single mp3? If the sampling rate is changed (making it a totally different file) should it still match to the huge "content database"?
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DB, 31 Dec 2009 @ 7:32am

63000 - 200 = 62800.
Disclaimer: I haven't read the Complaint and am only reacting to what's reported here.
Usually the rants here blame the lawyers. Here it seems justified -- although I'm not sure which lawyers, and maybe, again, it's the client who's really to blame.
If an outside lawyer signed a Complaint alleged there were 63000 infringing videos and there were only 62800 it's not true. If his/her client provided the list, they may be to blame, but he/she is responsible. And he/she needed to check with the client to make sure what's in the Complaint is true.
Some bonehead thought they'd make a dramatic splash by alleging 63000 -- maybe the outside lawyer, maybe the inhouse lawyer, maybe an executive at the client. If you're going for the drama, you need to get it right. Better to be right than dramatic.
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Mark Wells, 17 Feb 2010 @ 9:31pm

Greed
In regards to the I would Actually Like to Know who is MAKING an Actual Profit from Posting these "Clips" ?
Does anyone actually GET paid for doing this? (As In the Folks at Google) Other than say a few cents for the Inline ADVERTS that visitors may Click on while they view their "CLIP". This is the Most Paranoid delusional EGO Inflated RAT TRAP I have ever witnessed in my entire LIFE.
How is anyone infringing on a COPYRIGHT who is not outright making a profit or damaging the original Copyright "OWNER"?
Isn't seeing the original work rebroadcast on you tube or replayed on other venues or websites only going to encourage Fan support by allowing us to discover the rich motherlode of inspiration and artistry which are now speeding throughout Cyberspace?

Hell! if it weren't for "Random" posts and recycled content (such as seen on YOU TUBE and Downloaded from Binary news groups and such ) I would Not have been privy to half the events or recording that I have subsequently attended or purchased.
Sure , not every one of us has the $$ to order every single recording or movie they happen to "RUN ACROSS" during their cybersurfing expeditions. But HEY! ANSWER me this One: Would anyone who supposedly "pirates" this stuff be Buying it or subscribing to it if they did not know it was there to begin with!? I have the same rant about software. If I do not know that a specific program or operating system is going to suit my purpose, then Why would I buy the damned thing to begin with!?
What I am supposed to do in this case? GAMBLE with my $$ at the pleasure and WHIM of the Software Companies and or COPYRIGHT WEILDING FAT CAT RECORD EXECS ! who distribute these wares. I hardly think So! Let them dare attack me.

I will instruct them in proper behavior!

McCheevers
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J. Sibley Law, 24 Feb 2010 @ 8:57am

Rights, Content Ownership, & Business Models that Work
Every conference in the digital media space has sessions, workshops, and panel discussions about rights issues, content ownership, and business models. The fact that Viacom and Google (both very large organizations) find themselves in court over the matter demonstrates the complexity of the issues involved.

The fact is that distribution models like YouTube and even more so BitTorrent networks are weening the cyber-public off old models of distribution. Unfortunately, there is no dominant and completely successful business model to fill the void and pay all the people who contribute to creative content.

Viacom's bottomline is their bottom line, which allows for payments on contracts for content (and to shareholders).

There is still room for exciting new business models that ensure content creators (and contributors) get paid and still allow for the public to engage the content they love in the ways they expect (or to have their expectations changed).

These are exciting times!
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