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Viacom, Google Face Off in Appeals Court Over YouTube Copyright Issues

Not surprisingly, Andrew Schapiro, a partner at Quinn Emanuel representing Google, had a different view when it was his turn to argue before the judges.

"Judge Stanton joined every court in deciding that knowledge of specific and identifiable infringement is necessary and not mere general knowledge," argued the attorney.

Schapiro said the fundamental mistake being made by his adversaries in the case was to decide that YouTube was in the best position to determine what is infringing and what is not. Just because something is copyrighted doesn't make it infringing, he said.

The attorney submitted that copyright holders like Viacom bear the burden of sending takedown notices because they can provide the proper analysis of material that's been infringed versus material being fairly used. "How would one interpret a video that's spoken in Slovenian?" asked Schapiro. "There's no central depository of copyrights."

If, at the start of the day, the case involved two world-views -- one where Viacom says mere general knowledge is necessary to prompt swift action and one where Google says specific knowledge is what's really necessary -- the appellate justices seemed just as interested in listening to the facts involved in the dispute.

The appellate judges, for example, asked Schapiro hard questions about the e-mails that had turned up in discovery, which purportedly showed that YouTube founders knew that as much as 70% of material on its site was infringing. Why didn't YouTube respond to this?

Schapiro countered they didn't need to, that the evidence merely showed general knowledge.

Fine, said the justices. But what about knowledge by YouTube that users were sharing specific material like whole episodes of The Daily Show?

Schapiro retorted that there's no doubt a work like this was copyrighted, but the question is whether it was infringing. This case, he argued, was over allegations of infringement of "specific clips" and that there was no evidence that YouTube had actual knowledge these clips were improperly on its site.

On retort, Charles Sims, the Proskauer Rose lawyer for the class of copyright holders, disputed this assessment, saying that YouTube had been sent takedowns on things like Premiere League games and specific songs, only to see them pop up again on the website. Sims suggested the judges have their clerks do a search today for this copyrighted material. The case wasn't about clips, he said, but rather about "copyrighted works."

The justices were also curious to address a question over whether YouTube could have done more at an earlier stage to take care of Viacom's concerns.

"We're not suggesting more things couldn't be done," answered Schapiro. "The question is what the statute requires. YouTube has gone above and beyond. YouTube has spent millions of dollars developing state-of-the-art technology."

Later, Schapiro said that if YouTube had done A, B, C, and D to take care of copyright infringements on its network, Viacom would merely argue that it hadn't done E and F. "This case is an example of the old phrase, 'No good deed goes unpunished.'"