Viacom Replaces Superstar Lawyer on Eve of YouTube Appeal

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Ted Olson

The 2nd Circuit Court of Appeals on Tuesday heard Viacom's arguments why a judge wrongfully dismissed its billion-dollar copyright infringement lawsuit against YouTube. The federal courthouse was packed with Viacom employees, Google lawyers and others in expensive suits who had shown up to witness a hearing that might shape the future of the Internet.

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But there was one person not in attendance: Ted Olson, the superstar attorney from Gibson Dunn & Crutcher who Viacom had hired with much fanfare to handle its appeal in front of a three-judge circuit panel. On the eve of the hearing, Olson had been replaced as the lead litigator by Paul Smith, chair of the appellate practice at Jenner & Block and another member of the Viacom team.

Why?

The Hollywood Reporter attended the hearing Tuesday and spoke with several people in the viewer's gallery who are connected to the case. Here's what they said:

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In the weeks leading up to the case, both sides conducted mock hearings to get ready for this important appeal. Google's team expressed confidence after watching the meticulous preparation of its lead litigator, Quinn Emanuel's Andrew Schapiro. Meanwhile, while several folks seemingly connected with Viacom expressed their own faith in the case, the big talk surrounded Olson, who, according to one individual who claimed to have been privy to the rehearsals, had been replaced for not being adequately prepared to talk about a key issue: how YouTube had derived "direct financial benefit" from hosting copyrighted material on its servers -- one of the prongs in establishing vicarious liability under the Digital Millennium Copyright Act.

THR reached out to Viacom, Olson and the Gibson firm to explain his absence from Tuesday's hearing and to respond to the chatter in the gallery. 

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Gibson declined to comment. Viacom's general counsel Michael Fricklas tells THR in a statement: “Ted Olson and his team have been and will continue to be a key part of our appellate strategy. I was fortunate to have two great appellate lawyers that could argue the case, and decided that Paul Smith, who was involved in the earliest days of this litigation, would appear for Viacom today.”

Olson, the former solicitor general of the United States, is one of the most prominent attorneys in the country. His range of cases involve winning Bush v. Gore, the landmark Supreme Court decision that put an end to recounts in the 2000 presidential election, and finding some success in Perry v. Schwarzenegger, the case that challenged the constitutionality of a California ballot proposition prohibiting same-sex marriages.

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Viacom points out that while Olson did not attend the hearing, one of his fellow Gibson colleagues was there. But the company doesn't dispute that a conscious decision was made to have someone other than Olson handle oral arguments Tuesday.

"Viacom is fortunate to be represented by exceptional counsel that includes experienced attorneys from Gibson Dunn, Jenner & Block and Shearman & Sterling," the company says in a statement. "Paul Smith was selected to present Viacom’s arguments today because of his outstanding experience on these issues and his qualifications as a highly respected appellate lawyer."

E-mail: eriqgardner@yahoo.com
Twitter: @eriqgardner