Viacom vs. YouTube: Who is the real pirate?

The video service claims the entertainment company knowingly uploaded its own copyrighted content -- and then sued

Published March 19, 2010 1:20PM (EDT)

The long-running legal fight between Google and Viacom over copyright violations on YouTube heated up on Thursday, after thousands of pages of court documents were unsealed at Viacom's request. Viacom is apparently hoping that copies of e-mails between YouTube's founders dating back to the video service's earliest days prove that YouTube knew it was consciously pirating copyrighted content. But YouTube is fighting back. Chief counsel Zahavah Levine made some strong accusations of her own in a blog post on "The Official YouTube Blog."

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.

Given Viacom's own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

The Financial Times reports:

A person close to Viacom claimed that virtually all of the roughly 63,000 video clips the company found on the service were unauthorized, with the number posted by employees or agents working for Viacom only in the "hundreds."


(UPDATE: Corrected to reflect the appropriate gender for Zahavah Levine.)

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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