Viacom’s Permanent Injunction: Why we owe Viacom a debt of gratitude

Press coverage of Viacom’s lawsuit against Google over its YouTube subsidiary tends to focus on the startling $1 billion minimum copyright infringement claim.

The more interesting request of the United States District Court for the Southern District of New York is for “…a declaration that Defendants’ conduct willfully infringes Plaintiffs’ copyrights, [and] a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs’ copyrights…. (emphasis added).”

Let’s think about what those “methodologies” might be for a moment. Loosely put, this would involve the court ordering YouTube to develop or acquire and implement a “filtering” technology that would prevent unlicensed content from being made available on its service. Filtering actual clips of Viacom content would be much easier to accomplish than filtering Viacom material that is either “mashed up” or that is used as background material in so-called “user generated content”.

These are important distinctions, but they are distinctions that YouTube does not appear to make at this point. The first thing that needs to be understood is that YouTube is not a “web hosting company” as the EFFluviati would have you believe. A web hosting company offers space to end users to allow them to store things like websites, back up copies, contents of file servers and the like. YouTube doesn’t really do this, although they appear to do this sufficiently for the cloud of EFFluvia to descend in a fine spray.

My understanding of what is happening under the hood at YouTube is that when a user uploads a video clip, YouTube transcodes that clip from any of a number of acceptable file formats into the uniform file format used by YouTube. YouTube then hosts the transcoded copy created by YouTube. YouTube’s copy. The (a) copy that (b) YouTube (c) made. YouTube’s directly infringing copy.This process makes a lot of sense because this is exactly the way you would architect an uploading system if you wanted to have the ability to filter content. It would account for the filtering of pornography that must be taking place as Mark Cuban has pointed out and will no doubt find out about in the discover phase of his company’s lawsuit.

It is at this point in the uploading process, call it the offline holding tank, that YouTube could do a number of things. It could have a simple questionnaire in which it asked of the user “Do you own the content you just uploaded?” or better yet “Do you own the content you wish to upload?” It might also be a good idea to collect some personally identifiable information about the end user to avoid what is clearly scofflaws of a massive number who are ignoring the YouTube terms of service. We could think of a number of ideas for YouTube based on process, many of which are implemented by SNOCAP in its independent artist program.


Another way of filtering would be to implement various file identification tools, some of which work better than others, to conclusively identify the files being uploaded. While there’s a cost associated with these files, the technology exists today and integration could commence this morning—or could have been commenced at the beginning of YouTube.There is another form of filtering used by iTunes, Rhapsody, Movielink, Napster, eMusic and others. In fact, it is probably the dominant form of filtering used in the online music industry today.

Get a license first, then host the legitimate file in a legitimate way and pay the freight.

Of course, Mr. Eric Schmidt, Grand Poobah and Pukka Sahib of the Great Enlightened Google would have us prove the intrinsic value of culture before he believes he has to get a license.As I find myself saying too frequently these days, sorry—crazy doesn’t get a seat at the table.So Viacom is dealing with Google the only way you really can deal with crazy in a civilized society. But if Viacom gets the injunctive relief they are asking for, surely no court will limit the grant of injunctive relief to Viacom’s content. Surely it will apply to all content on YouTube.

YouTube will then suffer the same burdens as iTunes and all other legitimate businesses, and even Google will be dragged kicking and screaming like little brats into the real world of the music business, not the faux world of the Cult of Google where by definition Google can do no evil.

I’m sorry, but what Google are doing to my business is at least metaphorically criminal if not actually criminal (and I suppose the jury is out on that story for the moment). Viacom will lead the way on this and others will follow.

The world rejected Leviathans running amok like Standard Oil, Microsoft, AT&T and others.

No reason to stop now.

One thought on “Viacom’s Permanent Injunction: Why we owe Viacom a debt of gratitude

  1. one more fine point for your argument. Youtube doesnt stream the video to end users. They use progressive download. So rather than hosting video at the uploaders direction, and delivering it to those defined by the uploader, they deliver a copy to everyone and anyone who asks.ANY video you watch is downloaded to your PC as a way to save bandwidth costs. To see this in action simply watch a video to its completion. Then watch it again a 2nd time. Notice the reduction or elmiination of the time it takes for it to start ? thats because a copy is on your hard drive. Which means they give you a free copy of content every time you use youtube.


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