Dan's New Blog

Nope. But some people will. And I leave it to ‘em.

Today U.S. District Justice Louis L. Stanton ruled against Viacom in its copyright-infringement suit against YouTube. Here’s some (subdued) crowing from the YouTube blog:

“Today, the court granted our motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millenium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.”

This is only the first round. The NY Times says Viacom is already working on its appeal:

“We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible. After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.”

First it was Google. Back in January Steve Jobs called the Big G’s “Don’t Be Evil” corporate motto “bull****”. This was yet another episode in the two companies’ long and drawn-out parting of the ways. (Although a couple of months later Steve and Google CEO Eric Schmidt did meet publicly for coffee. Why do the pictures remind me of this?)

Today it was Adobe. Steve decided to “jot down some thoughts” about why Flash will never ever make it on Apple’s mobile devices:

“Flash was created during the PC era – for PCs and mice. Flash is a successful business for Adobe, and we can understand why they want to push it beyond PCs. But the mobile era is about low power devices, touch interfaces and open web standards – all areas where Flash falls short … New open standards created in the mobile era, such as HTML5, will win on mobile devices (and PCs too). Perhaps Adobe should focus more on creating great HTML5 tools for the future, and less on criticizing Apple for leaving the past behind.”

Boom.

You have to hand it to Steve, though.  He’s all about equal-opportunity. You don’t have to be a big corporate competitor to get the Steve Jobs treatment — all you gotta do is “find” an iPhone and post it on the Web.

It was Weekend Update time a couple of days early yesterday as YouTube-Google and Viacom fired point-counterpoint blog posts at each other in their ongoing (never-ending?) copyright infringement suit.

Viacom opened with a pithy statement about the facts of the case:

“YouTube was intentionally built on infringement and there are countless internal YouTube communications demonstrating that YouTube’s founders and its employees intended to profit from that infringement … Google bought YouTube because it was a haven of infringement … The law is clear that Google and YouTube are liable for their infringement. The Supreme Court unanimously held in Grokster that a service that intends infringement is liable for that infringement. No case has ever suggested that the [Digital Millennium Copyright Act] immunizes rampant intentional infringement of the sort Google and YouTube have engaged in.”

(Could you say “infringement” one more time, please, in case somebody out there didn’t get it?)

YouTube’s counterpoint can be boiled down thusly:

“With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them … The issue in this lawsuit is not whether a video is copyrighted, but whether it’s authorized to be on the site. The DMCA (and common sense) recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service. Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices. For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It 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 email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom … Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself. Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.”

(Both Viacom and YouTube have figured out that in the legal biz, if the other side does something more than once, you call it “countless”.)

Now over to Viacom for the last word:

“The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case.”