NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?

September 17, 2008

News:  NBC Universal General Counsel Rick Cotton reports the amazing success of keeping unauthorized copies of NBC’s broadcast of the highly successful (Mike Phelpsian) OIympics in Beijing off the Olympics.  Cotton says that less than 1% of Olympics videos online were unauthorized. 

NBC used a 2 pronged strategy: (1) get other online providers to use digital fingerprint technology to filter out those Olympics video that didn’t have the fingerprint–Cotton says 80% of the success is attributable to this strategy; and (2) using Web crawling technology from Vobile to police the web for unauthorized clips, which allowed NBC to send DMCA notices to sites.

Cotton beamed about YouTube’s digital fingerprinting technology the most.  According to BusinessWeek, “By the way, Cotton says the most impressive automation occurred with YouTube. While the online video giant has had a reputation with many broadcasters for not doing enough to protect copyrighted content (not to mention a $1 billion lawsuit from Viacom), Cotton says YouTube worked closely with NBCU. Also, he says YouTube’s homegrown content recognition system worked effectively. This should come as a surprise to many of my sources, who were convinced that Google was doing as little as possible to perfect a technology whose reason for being is to keep content off its site. ‘The most extensive automation we had was with YouTube. Their system worked very well,’ says Cotton.”  (More)

Analysis: This evidence from NBC Universal provides a devastating blow, in my view, to Viacom’s copyright case against YouTube.  When coupled with the recent DMCA safe harbor victory for Veoh, NBC Universal’s backing of YouTube’s fingerprinting anti-infringement technology significantly bolsters YouTube’s defense that it goes above and beyond the DMCA safe harbor. 

I have to admit that I marveled at the lack of unauthorized Olympics videos on YouTube.  Now that NBC Universal has explained the amazing success of YouTube’s fingerprinting technology, Viacom and the other plaintiffs suing YouTube will be hard-pressed to argue that YouTube is not doing enough to combat copyright infringement.  The 2008 Olympics may turn out to be not only a huge victory for Michael Phelps, but also Chad Hurley and the team at YouTube.

I think a key lesson of NBC’s success in keeping unauthorized Olympics videos off the Internet is that copyright holders must share the burden in protecting their copyrights.  Yes, copyright holders must spend money to enforce their copyrights!  Too often in the rhetoric against YouTube some of plaintiffs seem to want to shift the expense of enforcement to YouTube.  The DMCA, however, always envisioned a sharing of that burden under a notice-and-takedown system.

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Negative publicity forces Viacom to narrow scope of discovery request from YouTube, redacting usernames

July 15, 2008

News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.

Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish.  Also, it probably takes care of any VPPA problem.


YouTube users revolt against Viacom for seeking histories of all videos watched on YouTube, including user names of people who viewed videos

July 8, 2008

Judge Stanton orders YouTube to reveal usernames, videos watched, + viewing history over YouTube’s privacy law objections

July 3, 2008

News: In the Viacom v. YouTube copyright lawsuit, Judge Stanton ordered YouTube to disclose “all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website,” which includes “for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.” You can read the opinion by clicking here.

EFF argues that the court order violates the Video Privacy Protection Act (VPPA). The Judge apparently didn’t think it applied (dismissing it in a footnote).

Michael Arrington of Tech Crunch agrees with EFF and lambastes Judge Stanton for the ruling, though with the “utmost respect.”

Mike Masnick of Tech Dirt agrees with EFF and thinks the disclosure of usernames and videos watched violates VPPA.

Analysis: In terms of the privacy law, the key question is whether online videos fall within “prerecorded video cassette tapes or similar audio visual materials” under the VPPA. I haven’t read the statute yet, but my initial “ordinary meaning” interpretation of those words would be that online videos clearly are “similar audio visual materials” to video tapes. There’s really not much difference between online video and a video tape.

Viacom said that it would handle the user data confidentially and just wants to prove its case (more). OK, even if YouTube users can trust Viacom, there are numerous other plaintiffs involved in the class action lawsuit against YouTube who will also receive the information.

Another thing wrong with Judge Stanton’s analysis is the notion that a YouTube “login ID is an anonymous pseudonym” (p. 13). There are plenty of YouTube usernames that are either actual birth names–Esmeedenters, Terranaomi, Judsonlaipply, TayZonday, etc–or usernames that are readily identifiable people in the YouTube community–Renetto, Smosh, Lisanova, Justine, Paperlillies, Hotforwords, Valsartdiary, etc. Sure, many YouTube usernames are not well known, but many others are.


Some copyright lawsuits v. YouTube disappear

February 3, 2008

News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.

Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.

One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?

Here’s an update on all the cases.

(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck Richard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)

(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)

(4) VOLUNTARILY DISMISSED: David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)

(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)

(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.


New Yorker article on Google

January 13, 2008

News: Ken Auletta has a must-read article about Google titled “The Search Party” in this month’s New Yorker. It has some mention of YouTube and Viacom’s lawsuit. One interesting quote is that CEO Eric Schmidt seems willing to test the scope of copyright on behalf of users:

In addition, Schmidt said, copyright “is not an absolute right,” and has to be balanced by “fair use.” When I asked whether Google wanted to push the envelope on privacy and copyright, he said, “That’s probably correct. If there’s a legal case, we’re going to favor the legal one that favors users.


Audacity: Viacom copies YouTuber’s video w/o permission, then accuses YouTuber of infringement

September 1, 2007

News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).

Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.

So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:

“That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!”

Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages.  So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove).  It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work.  Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).

We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?