Viacom Sues YouTube

By Eric Goldman

Viacom International, Inc. v. YouTube, Inc. (SDNY complaint filed March 13, 2007). Complaint available here.

After public saber-rattling by Viacom and significant negotiations between the parties, Viacom finally pulled the trigger and sued YouTube for copyright infringement. Two quick points about this lawsuit:

1) I would be very surprised if this lawsuit reached a final judgment on its merits. Instead, I suspect Viacom is using the complaint to increase the pressure on Google to negotiate. This is an expensive escalation of the negotiation, but to me, it’s entirely consistent with a logical negotiation strategy.

2) If this case does reach a final judgment on its merits, I have no idea what the court will say. I know what the court SHOULD say (regular readers are well aware of my defense-side orientation), but trying to do a neutral assessment the law, the precedent isn’t so clear that one side is an obvious winner. I thought the complaint did a good job telling its story of YouTube as a piracy-based business, and some judges might be swayed by that story (see, e.g., Napster, Aimster). On the other hand, Congress has enacted the 512 safe harbors for precisely this situation, and I think many judges will find those safe harbors apply. Even so, Viacom does a good job pointing out the limits of the 512 notice-and-takedown scheme by noting that it has no viable mechanism to identify videos shared only with “friends,” in which case some judges might be sympathetic that the safe harbors aren’t a complete solution for Viacom. So, what will a judge do? I don’t know. All the more reason for the parties to work out a settlement before they spend too much money on litigation.

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