In their opening briefs in the Viacom vs. YouTube lawsuit (which have been made public today), Viacom and plaintiffs claim that YouTube doesn't do enough to keep their copyrighted material off the site. We ask the judge to rule that the safe harbors in the Digital Millennium Copyright Act (the "DMCA") protect YouTube from the plaintiffs' claims. Congress enacted the DMCA to benefit the public by permitting open platforms like YouTube to flourish on the Web. It gives online services protection from copyright liability if they remove unauthorized content once they’re on notice of its existence on the site.[..]
Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
Ooh, now that's a little incriminating. We've had our own run-ins with Viacom and almost every one of our video crew have battled against YouTube as well, so really we have no dog in this fight. Fair Use is an issue that is ill-defined in the brave new world of blogs and user-created videos. It is worth noting that Viacom also tried to purchase YouTube less than a year before suing them. And in fairness, at least one YouTube executive appeared to have a fairly cavalier attitude towards copyrights:
(A)n e-mail exchange among YouTube co-founders Chad Hurley, Steve Chen and Jawed Karim showed there were in-house copyright abuses.
"Jawed, please stop putting stolen videos on the site," Chen wrote in the July 19, 2005, e-mail. "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it."
In a statement after the documents were unsealed, YouTube said Chen's e-mail was referring to some aviation videos that had been making the rounds on the Web. "The exchange has nothing to do with supposed piracy of media content," YouTube said.