Google, Viacom snarl at each other over YouTube case

They are hurling nasty accusations at each other as Viacom's lawsuit moves forward

Google and Viacom exchanged corporate unpleasantries on Thursday after the release of previously sealed documents in Viacom's three-year-old lawsuit against Google alleging copyright infringement on YouTube.

With both companies seeking a summary judgment in their favor from Judge Louis Stanton of the U.S. District Court for the Southern District of New York, Google and Viacom rushed to make their case before the public with strongly worded statements.

Zahavah Levine, YouTube's chief counsel, struck an apocalyptic note for all fans of online video. "YouTube and sites like it will cease to exist in their current form if Viacom and others have their way in their lawsuits against YouTube," she wrote in an official blog post.

Viacom, for its part, pulled no punches in an e-mailed statement: "Google bought YouTube because it was a haven of infringement," the statement reads. "Instead of complying with the law, Google willfully and knowingly chose to continue YouTube's illegal practices."

The spat dates back to March 2007, when Viacom slapped Google with a US$1 billion lawsuit over what it described as widespread and willful infringement of Viacom's movies, TV shows and other content on YouTube.

Google, which acquired YouTube in October 2006 for US$1.65 billion, has maintained as its defense that YouTube complies with the requirements in the Digital Millennium Copyright Act (DMCA) to remove infringing material upon owners' requests.

Viacom's basic allegation and Google's defense remain in place, and as the judge ponders the court's next decision, the companies are trying to make each other look as bad as possible.

For example, Levine alleges that Viacom, prior to filing its lawsuit, engaged in dirty practices to bolster its case, such as secretly uploading Viacom content to YouTube and making it seem as if the actions were being undertaken by regular users.

"[Viacom] 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 e-mail addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom," Levine wrote.

At the same time, Viacom also uploaded some content officially because it wanted to have it there for promotional purposes, thus making it impossible for YouTube to figure out which uploads were legitimate and which weren't, according to Levine.

"The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content [that] users upload, and would subject those web sites to crushing liability if they get it wrong," she added.

In its statement, Viacom downplayed Google's complaints. "The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case," the statement reads.

Viacom paints a picture in which YouTube built its popularity through the brazen use of illegally copied and uploaded videos, an approach that didn't change after it was acquired by Google.

"Google and YouTube had the technology to stop infringement at any time but deliberately chose not to use it. They would only offer to protect Viacom's content if Viacom agreed to license those works, effectively holding copyright protection as ransom for a license," Viacom said.

Google has no right to seek shelter for YouTube under the DMCA provisions, according to Viacom. "The Supreme Court unanimously held in [MGM Studios versus Grokster] that a service that intends infringement is liable for that infringement. No case has ever suggested that the DMCA immunizes rampant intentional infringement of the sort Google and YouTube have engaged in," Viacom said.

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Juan Carlos Perez

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