Viacom vs. Google: Test of key online law

The copyright lawsuit filed Tuesday by Viacom against Google and its YouTube subsidiary could end up rewriting one of the key laws of the Internet age: the Digital Millennium Copyright Act.

Viacom, which owns MTV, VH1, Nickelodeon and Comedy Central, is alleging that Google and YouTube infringed copyrights ``on a massive scale'' by streaming more than 1.5 billion clips of shows like ``SpongeBob SquarePants,'' ``The Colbert Report'' and ``MTV Unplugged.'' It is seeking more than $1 billion in damages.

Google and YouTube have frequently cited the millennium copyright law -- also known as the DMCA -- in defense of repeated charges that they are illegally making money off of other people's creative work. But legal experts say it has yet to be determined whether key sections of the law apply to new media companies like Google and YouTube and scores of others.

``Any ruling in the YouTube case is certain to have implications for companies like Yahoo and eBay, as well as smaller companies like Facebook and imeem,'' said Fred von Lohmann, an attorney with the Electronic Frontier Foundation. ``All of these companies rely on the exact same principles that YouTube does.''

Executives at Google and YouTube have argued that they comply with the DMCA because they remove copyrighted material as soon as they are asked by the copyright owner. This includes clips of TV shows like ``The Daily Show'' as well as videos created by users that contain copyrighted material, such as a home movie that has a Rolling Stones song as a soundtrack.

Viacom says this practice places the cost of enforcing copyrights on the ``victims of infringement'' who don't have the tools to effectively police the site. Last month, Viacom requested that YouTube take down more than 100,000 videos. YouTube complied, but a number of users reposted the videos almost immediately.

Viacom argues that the DMCA's ``safe harbor'' provision, which basically exempts hosting companies from liability if they take down copyrighted material once notified, does not apply to YouTube because copyrighted works are ``the cornerstone'' of its business model.

Google says that's not the case. ``YouTube has become even more popular since we took down Viacom's material,'' Google General Counsel Kent Walker said in a statement. ``We think that's a testament to the draw of the user-generated content on YouTube.''

Still, even Google quietly acknowledges that copyright law is being tested and new interpretations are possible. ``Any court ruling that imposes liability on providers of online services for activities of their users and other third parties could harm our business,'' Google noted in a yearly report it recently filed with the Securities and Exchange Commission.

Google's shares fell $11.72, or 2.58 percent, to $443.03 in trading Tuesday.

Though it's not frequently acknowledged, any created work, such as a home video posted to YouTube, is copyrighted, but individuals generally have no power to enforce their rights unless they are affiliated with a major publisher or entertainment company.

For that reason, Ron Cass, chairman of the Center for the Rule of Law, believes a ruling in Viacom's favor would be good for ordinary people who post creative work on the Internet and who are increasingly having everything from pictures to blog posts plagiarized by other sites.

Mark Cuban, owner of Magnolia Pictures, said Google and YouTube's blatant disregard for copyrights has encouraged others to violate them. The distributor of films like ``Enron: The Smartest Guys in the Room'' sent subpoenas to YouTube and Google Video last week requesting the names of users who uploaded its movies.

``Remember, it's not about how they treat Viacom,'' Cuban wrote in a post on his blog (www.blogmaverick.com). ``Viacom is big enough to take care of itself. It is about hiding behind a law, the DMCA, at the expense of copyright owners, to dominate the online video space.''

While other entertainment giants, including NBC Universal and News Corp., have asked YouTube to take down copyrighted material, Viacom is the first to sue.

James Nguyen, an attorney with Foley & Lardner in Los Angeles, said that's because some of them, like News Corp., own properties like MySpace that could be hurt by a new interpretation of the law.

``If Viacom wins, it really casts doubt on a number of businesses that rely on hosting information for users,'' Von Lohmann said. Yahoo's user-generated properties, such as Flickr, Yahoo 360 and Geocities, could also be affected.

Conversely, a ruling in Google's favor would allow the already numerous sites that are built around user-generated content to operate without having to enter into licensing agreements.

``Google has basically been following the advice of the best lawyers in Silicon Valley,'' Von Lohmann said. ``If Viacom wins, that would call into doubt all of the business models that relied on the same kinds of legal advice.''