Viacom v Gootube

So welcome to the main event. Viacom has sued Gootube for over $1 billion in damages and injunctive relief. Viacom made 6 claims-- the first 3 were for direct infringement, the fourth was for inducement liability ( a la Grokster), the fifth was contributory, and the sixth was vicarious liability. This will be the real test of how inducement interacts with the Safe Harbor provisions, as I discussed in my article.

Here is a link to the complaint. It is gorgeous drafting, and perfect in all the ways the Tur complaint was lacking. Last night I coordinated a panel at Cardozo where about 40 lawyers showed up to discuss the future of the music industry. Needless to say, we ended up discussing the Viacom suit, and one of the speakers (though I can't remember who) made an interesting point, that Mark Cuban has also touched upon. It boils down to the fact that YouTube relied upon the Safe Harbor provisions for protection but also as a sword to a certain extent. When negotiating deals with content providers, YouTube would tell them that it wouldn't pre-screen for infringements of their copyrighted materials until they made a licensing deal with YouTube. YouTube clearly pre-screens, as evidenced by the fact that porn never ends up on the site. This basically comes off as a threat, saying "Either make a deal with us where we will protect your content, or we will keep on letting people infringe your material and make you go to the effort to find infringement."

My former boss who is now at Viacom told me that they have a room where 15 people search full-time through YouTube for filtered content. 15! If the filtering technology doesn't improve or the DMCA isn't changed, that is certainly going to be a growing form of employment.

Will post more when time permits.