The Law Developer

     I have previously written about the Viacom v. YouTube case here and here. Ben Sheffner has an update that points to the Washington Legal Foundation amicus brief in the case. This brief, unlike the other brief mentioned in the article, deals not with the facts in this case, but rather with whether sites like YouTube should be afforded DMCA Safe Harbor protection at all. The brief is incredibly misleading, even for a Washington-based company.

     My biggest problem with its brief is the assertion that if Google is given safe harbor protection, then all of the onus of preventing copyright infringement falls on the copyright holder. The DMCA requires that service providers remove content that they know to be infringing. Google has incredibly sophisticated software to determine the copyright holder of videos uploaded to its site. The problem that Google has is that almost every video that is uploaded is protected by copyright. Most of those uploading the videos own the copyright and want their videos to appear on YouTube. There is no practical way for Google to know whether the person who uploaded the video owns the copyright or not. What makes this so hypocritical is that Viacom isn’t even sure what videos it owns the copyright to and has issued bogus DMCA takedowns for innocent videos. Yet the Washington Legal Foundation thinks that YouTube should be liable when users upload infringing content? How could YouTube possibly be able to find all unwanted content when the content creators don’t even know what content is theirs?

     To be fair, if some of the allegations made in the Viacom case are true, Google may be liable for videos YouTube founders purposely pirated. However, now Google goes above and beyond the legal requirements to ensure that copyright owners know when their videos are on YouTube. They then give the owners the option to make money off of the video or have it removed.
But this isn’t enough for Viacom and other television networks, as YouTube is allowing everyday users to create entertaining content. This content competes with the networks, and they don’t like that. So instead, networks would rather shut down one of the most popular sites on the Internet. That’s what I like about legal action, it’s easier than competing, and it helps improve my future job prospects.

Stephen Burch

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     Apparently Florida isn’t the only state where people lacking in customer service like to sue their customers when they complain. T&J Towing decided to sue a Western Michigan University student who started a Kalamazoo Residents against T&J Towing Facebook page. The student asserts that nothing he said was untrue, but the towing company is still suing for $75,000. This lawsuit is nothing more than an attempt to shut down free speech. I’ll let Cooley Law Professor Curt Benson summarize the towing company’s case:

“So frankly, he’s got an awfully hard lawsuit to win here and frankly, I get the impression it’s more like him sending a message to the community, ‘don’t say anything negative against me because I’ll file a lawsuit against you.’”

     Maybe I should start a Facebook Group called ‘Jerks who File SLAPP Suits’. I wonder if that would be considered defamation?

     As a follow up to my Viacom v. YouTube post in which I discussed how Google was in the right and how I hoped it would prevail in its copyright infringement suit, now I’m not so sure. Viacom has released some more information that makes me think that Google may not be as innocent as I had originally believed. It made public Google’s analysis of YouTube when Google Video was a competitor of YouTube. Below are three of the statements included in the analysis:

  * “YouTube’s business model is completely sustained by pirated content.”

  * “YouTube’s content is all free, and much of it is highly sought after pirated clips.”

  * “[W]e should beat YouTube by improving features and user experience, not being a ‘rogue enabler’ of content theft.”

     That doesn’t sound good. It purchased a company that it knew was built and sustained by piracy. Viacom also disclosed bullet points from a slide that Google created to determine how to handle companies like Viacom. The most interesting of which is “Set up ‘play first, deal later’ around ‘hot content.’” Basically Google is saying that its strategy for dealing with pirated content is to put it on its site first and deal with any consequences later. Well, the consequences may be… (*puts pinky finger on edge of my mouth) ONE BILLION DOLLARS!

     I think it would be a good business decision for movie and TV studios to allow their videos to appear on YouTube. But it should be their decision. If a company like YouTube purposefully seeks out to obtain and display content that it does not have rights to show, it should face consequences. Google’s analysis of YouTube shows that it understood that YouTube was popular because it had pirated content, yet Google still bought it. The Google slide clearly demonstrates that Google itself wasn’t worried about violating the rights of copyright holders. Now Google has definitely changed its ways. It has an incredibly sophisticated content detection system that allows it to notify copyright holders when their videos appear on YouTube. Apparently though, Google wasn’t always as diligent in preventing pirated videos from appearing on its site. And by not as diligent I mean it actively sought out and displayed pirated videos.

h/t Ben Sheffner for the Google vs Viacom articles.

Have a Good Weekend.

Stephen Burch

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     I have talked a lot about bad patents and how the patent system should be reformed to better prevent these patents from being granted. I decided that it would be a good idea to start a category called ‘Bad Patent’ and keep track of bad patent ideas as I come across them. Here are the first two entries.

     The first is from Google. Their description of the patent:

“A user of a web service is prompted to endorse the web service to the user’s friends or other connections by submitting a status message to one or more status messaging services to which the user belongs.”

And from the article:

“You know when you sign up for a service and it lets you post a message to your friends on Twitter or Facebook inviting them to join? Yup, Aardark is somehow claiming that this was the company’s own invention.”

     The second is from IBM. They consider it an invention to optimize a program by trial and error. Their description of the patent:

“A method for developing a computer program product, the method comprising: evaluating one or more refactoring actions to determine a performance attribute; associating the performance attribute with a refactoring action used in computer code; and undoing the refactoring action of the computer code based on the performance attribute. The method of claim 1 wherein the undoing refactoring is performed when the performance attribute indicates a negative performance effect of the computer code.”

     I do look forward to being a lawyer, writing incredibly obvious, simple things in complicated ways. There is apparently good money in doing that. If a normal person had written that it would look something like this:

“Try something. If is slows down the program, undo it. If it speeds up the program keep it.”

     I think law schools should offer a class in obfuscating language because I am not sure I have learned how to make things that obtuse and it seems to be a requirement for legal writing.

h/t thelittlekitchn from The Little Kitchen for the Google Article

Stephen Burch

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     Viacom is suing Google, owner of the popular Internet video site YouTube, for alleged copyright infringement. While the DMCA provides a safe-harbor provision to website owners when their users post infringing content, it also provides a take-down notice procedure which provides for a copyright holder to request that a site remove infringing content before taking any legal action. As long as the website owner obliges this request, they are usually not liable for the infringing content of their users.

     So, assuming Google followed this protocol, why is Viacom suing Google? Well, it is claiming that Google did not do enough to stop infringing content. But it didn’t stop there. Viacom claims that YouTube was built on infringing content and that one of its founders was intentionally stealing videos to get more traffic. This is from an email from YouTube founders:

“We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

     That doesn’t sound good. In its own defense, Google writes a blog post that explains the measures it takes to protect copyright holders. Google also tells an interesting story of how Viacom has secretly uploaded videos of its shows (Viacom owns, among others,  MTV and Comedy Central) to YouTube from different computers and under different user names. Google claims that Viacom even went through the trouble of degrading the videos beforehand so that it would look pirated.

     So should Google be immune from liability for copyright infringement? The Safe Harbor Provision was meant to provide immunity to sites like YouTube, provided that certain conditions are met. The condition that Viacom claims Google doesn’t meet (as illustrated in the email above) is the “Knowledge of Infringing Material”. If the offending site’s owner knows of the infringing material and does not remove it, he can be held liable. Viacom is trying to show that YouTube not only knew that infringing material was on its site, but that it put the material there itself. The major problem with this argument is that the email is from 2005 and the infringing material it discusses has not been shown to be owned by Viacom. In its memo (pdf) and blog posts, Google discusses the measures it uses to screen for copyrighted content and alert the video’s owner. It also discusses the fact that almost every video on YouTube is copyrighted (including that “video of your cat playing the piano”). Google claims the real issue is whether or not the copyright owner wants the video to appear on the site. And it seems like Google has a very sophisticated system that tries to identify the copyright owner of media company videos and alert them to the existence of an uploaded video. This is clearly above and beyond what is required by the Safe Harbor Provision.

     According to the Reuters article, users of YouTube upload more than 24 hours of video every minute. Google even goes so far as to take active measures to review the voluminous amount of video footage and flag potentially infringing material. Legally, I believe it should be immune from copyright liability. More importantly though, I believe that sites like YouTube actually help make Viacom money. When somebody sees something on TV that they find entertaining, the next day they will show their friends and coworkers the video on YouTube. In an age where viewers fast-forward through commercials, companies are spending significant amounts of money trying to figure out how to market their shows. YouTube has created a way for viewers to market the show to their friends for free. YouTube helps build viewership. If the allegations made by Google are correct, Viacom is also well aware of this fact. That is why it continues to upload its own videos. The Internet is constantly changing  how people seek out their entertainment and some companies, although enjoying the benefits of the Internet, are really taking issue with some of the drawbacks. In this case, Viacom is using YouTube to promote its content while simultaneously suing YouTube for promoting its content. For the sake of the Internet, I hope this case is decided quickly in favor of Google.

Stephen Burch

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In my previous two posts (here and here), I discussed the Apple iPhone Developer license agreement and its effect on developers. I also discussed how some of its provisions might not be enforceable. Since Google has been on the receiving end of some of Apple’s onerous terms, why didn’t it make any challenges?
First, let me talk about a happier time. When the iPhone first came out, Apple looked to Google as its default search engine provider and its sole Maps provider. Google’s Voice Search even violates terms of Apple’s developer license agreement and Apple approved it anyways. But then Google’s Android began to compete seriously with the iPhone. Since then, Apple has cooled to Google. It has purchased a mapping company, leading people to speculate that it is looking to replace Google as its Maps provider. And more relevant to this discussion, Apple has refused to accept Google’s Voice application.
So if I’m right and Apple’s developer license terms aren’t enforceable, why didn’t Google challenge Apple in court over Voice’s rejection? I have a couple of ideas, one is legally based and the other is business based. The legal argument is pretty simple. When a court tries to determine if a contract term is unconscionable, it looks to the disparity in the bargaining power of the parties. While most app developers don’t have equal bargaining power with Apple, it is hard to argue that Google, which is a larger company than Apple, has less bargaining power. Although one could argue that there is a big disparity when it comes to Google’s bargaining power with Apple in relation to iPhone apps, I don’t think Google even wants to challenge Apple on this issue.
Google makes its money by getting people to do things on the web instead of in separate applications. When Apple rejected Google Voice, Google recreated the application as a web app, eliminating an iPhone lock in. Google cannot and does not want to compete with Apple or Microsoft on the operating system market. It wants people to treat the browser as the operating system. Google Maps revolutionized what people thought was possible in the browser by using AJAX. It continues to bring applications that were once thought of as exclusively desktop applications to the web (just look at Picasa and Docs). And it has done so by providing all of the tools for free, furthering its core business, advertising. Even more importantly, Google’s Android is now competing with the iPhone.
Google Voice is an awesome application. Apple’s exclusion of the application doesn’t hurt Google, it hurts Apple. Android has a much more open development environment and is just more developer-friendly all around than the iPhone. The only real difference between the two is the audience. The iPhone can still earn the developer more money than any other phone platform, and at the end of the day, Google wants to see the iPhone’s popularity decline. The harder it is for developers to work with Apple, the easier it will be to get them to develop for Google’s Android. Spending precious Google time and money to force Apple to be more open works against its long term goal. And besides, the FCC has decided to review Apple and AT&T (Apple’s exclusive iPhone provider in the US) all on their own. More on this tomorrow.

Stephen Burch

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