Michael Robertson: YouTube Legal Battle With Viacom Ain't Over

Viacom suffered a resounding defeat in their lawsuit against YouTube, but that was just the first round and Viacom promptly appealed. Now a higher court will examine the issues. This isn't just ceremonial. Lower court's rulings are routinely over ruled even in copyright cases. In fact the Cablevision case was (thankfully) completely reversed by the higher court. With that in mind, I decided MP3tunes should file a brief of support in the YouTube case.

We scoured internal Viacom documents in the case and uncovered evidence of elaborate schemes to market movies, TV shows and music using YouTube. To improve the effectiveness, they masqueraded their corporate actions as those of motivated fans. So thorough was the deception that Viacom itself couldn't track what was authorized and what was not making it impossible for anyone else (including YouTube) to know.

While Viacom is telling the court that YouTube is a giant piracy operation their own words tell a completely different story. Rather than me summarizing I thought it would be most interesting to pull quotes directly from emails.

"THIS MUST BE VIRAL AND NOT DIRECTLY CONNECTED TO US."

"It should definitely not be associated with the studio - should appear as if a fan created and posted it."

"No one can know that Fanscape or MTV is involved in this."

"Dana wants the clip to look as though it was leaked out by production instead of purposely placed by Spike or the UFC."

"In light of the fact that the goal is to make [the video] look 'hijacked' we won't blur the round number on the clock. Steve actually suggest we throw (if technically possible) visual time code on it to add to the 'hijacked' effect."

"It's also completely finished footage so maybe we want to 'rough it up' with some time code before we release it virally."

Emails from Viacom and others demanding content THEY placed on YouTube be removed:

"We need your help with something. All of the Last Kiss content that we uploaded has somehow been removed-not per our approval. How can we get this back up? How does this happen?"

(YouTube responded that was taken down due to an infringement notification.)

"We did it yet again! We issued a take-down on a video that was living in one of our channels."

"This is the second time in as many months that our channels have been disabled. I do understand that YouTube is not to blame for these disruptions and instead it more systemic of what occurs in big companies like our clients where one department isn't aware of what another department is doing."

"Can you please reinstate the YouTube account warnerbrosonline? I believe we sent notices to YouTube regarding warnerbrosonline and we would like to retract the notices."

"Viacom is cease-and-desisting the content from MTV off YouTube and has caused our account to be disabled, making all of the MTV videos we have on that account inaccessible."

"All three of our Fanscape YouTube channels have been disabled. We have copyright infringements from Viacom or MTV related companies (i.e. record labels) that we need to take care of as soon as possible. If we can't keep a YouTube channel live then it makes it very difficult to blast out the MTV videos provided by you to promote new/existing shows."

While Viacom tells the court that YouTube knows or should know what videos are pirated these documents tell a different story. Because media companies use the net for marketing they often don't know what's authorized and that is partly because they because they're large organizations partly because they intentionally hide their own actions.

There are striking similarities between the YouTube case and the MP3tunes' case. In our legal battle EMI lied to the court claiming they don't distribute promotional songs online when they clearly do. In that case users helped gather evidence of EMI's deception. In YouTube's case the words written by Viacom employees themselves reveal the truth and why the appellate court should AFFIRM the lower court's ruling.