Hollywood Reporter Esquire

YouTube's enduring foe may not be Viacom

It's new media vs. old media, northern vs. southern California, hip vs. used-to-be-hip with the future of Internet video on the line. But for all the bluster of the billion-dollar Viacom vs. YouTube case, few in the legal community believe this fight will get anywhere near a trial.

There's simply too much money to be made from a deal. Viacom, having missed the boat on MySpace, can't count on developing a competitive video service to deliver the young eyeballs YouTube does. (Even NBC-Universal and News Corp. are talking with YouTube as they launch their own portal.) At the same time, YouTube has built its business in part on a "safe harbor" law that no court has said applies to its service.

But this doesn't mean we'll never see YouTube defend its practices in court.

Bob Tur is quietly litigating what could be a far more interesting case because, unlike Viacom or the other media companies trying to figure out a digital strategy, he has far less incentive to make a deal.

Tur is a helicopter pilot and video news entrepreneur best known for pioneering the TV police chase. His company, Los Angeles News Service, has made millions licensing footage of crime scenes and breaking events like the L.A. riots and the O.J. Simpson slow-speed chase.

In June, when YouTube mostly was known for that "Lazy Sunday" video, and months before Google's jaw-dropping $1.65 billion purchase was announced, Tur became the first person to sue the company when takedown letters didn't stop his videos from reappearing.

"They said, 'Why would you sue us, we have no money?'" Tur recalls. "But I brought my case on principle. They are very clever to say they're protected by the (Digital Millennium Copyright Act), but they're going to have to litigate this at some point."

Tur is potentially dangerous to Google because he isn't afraid to put his money where his mouth is. Since starting his company in the 1980s, he says he has spent more than $5 million on mostly successful battles with networks and the Reuters news service over his videos. Tur's cases have led to precedent-setting copyright decisions published by the Ninth U.S. Circuit Court of Appeals.

"Viacom is only interested in getting as much money as it can from Google, but that's shortsighted," he says. "I've gone up against news and entertainment companies to protect my content — and these very same people now cite my cases for themselves."

Google head of litigation Michael Kwun, along with outside counsel at Wilson Sonsini Goodrich & Rosati, is handling both the Viacom and Tur cases and is confident in YouTube's DMCA arguments. A May hearing scheduled to evaluate its safe harbor theory will be the first test of that confidence. In preparation, Tur is seeking testimony from YouTube founders Chad Hurley and Steve Chen. If Tur wins, the case goes to trial. If he loses, he and his attorney, Francis Pizzulli, say they will appeal.

Sure, like Viacom and most plaintiffs, Tur probably would settle if Google throws enough money at him. But with the traditional media sharks all scrambling for their bite out of YouTube, Tur presents what may be a more threatening legal challenge: a well-financed ideologue with a clear business strategy and a proven track record of taking litigation as far as he needs to go to win.