We will get into this in more detail, but YouTube fans may enjoy reading the handy Criminal Resource Manual published by the United States Departement of Justice (of Google Books fame, among other things). In particular, Chapter 1847 “Criminal Copyright Infringement“:
“There are four essential elements to a charge of criminal copyright infringement. In order to sustain a conviction under section 506(a), the government must demonstrate: (1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain. Attempts to infringe are prohibited to the same extent as the completed act. Conspiracies to violate the Act can be prosecuted under 18 U.S.C. § 371.”
Although not at all unexpected, the YouTube discovery has revealed a couple of things. First, this is some really unambiguously depraved correspondence, far worse in my view than anything we saw in the Grokster case and makes the intent to infringe (that the Supreme Court required in Grokster) very clear, but then I’m a “copyright bastard” at heart. What is also clear from Grokster (and more recently, the Isohunt case) is that the DMCA safe harbor is not an alibi.
While I’m sure that these disclosures are embarrassing for the more junior folk, the first question that comes to my mind is where was the board? Particularly the YouTube board pre the acquisition, but also the Google board. The next question is what in the world was the legal advice? This is the kind of thing that should make a lawyer resign. There should not be different spanks for different ranks in this thing. There is plenty of blame to go around—up and down the chain.
You also have to wonder how it was that YouTube claimed—and still does claim—that it had no control over what users uploaded when there is an extensive discussion in the internal emails that seems to suggest the exact opposite. YouTube seems to have had an extraordinary degree of control over what was made available.
The post-acquisition evidence clearly supports the view that many have of Google—they will take everything that they can until they are forced to stop by a court order after vigorous litigation. That means that they run roughshod over everyone (like authors and artists) who can’t afford to fight while they use their access to the public markets to essentially print money to fund their litigation strategy. That’s not what Wall Street is there for.
This may also explain why Google’s vast public market resources are being devoted to shrouding the case in as much secrecy as possible–the latest example being the all out attack on Robert Tur, the hero helicopter pilot who along with his camera operator saved 54 souls from disaster by flying through 60 kt winds and rain–because he was asked to do it. One of the things I haven’t been dumb enough to do is fly through the air in 60 kt winds, but I have sailed through those heavy airs–the main reason why I don’t want to fly through that soup.
Of course, these are things that will not be understood by his present company at bar.
Tur is accused of leaking an unredacted version of Eric Schmidt’s deposition. Given the apparent reeking spoliation of evidence by YouTube and the dog ate my homework, “I know nothing” amnesia by the Don’t be Moral executives at Google, it is rather refreshing to see someone doing the right thing in the case. It is a sad commentary on Google’s influence that a whistleblower hero is being pursued to preserve the “privacy” of a two Gulfstreamer.
How’s that ACLU award looking, Dr. Schmidt? Pretty transparent?