THR Esquire

Google arming itself for battle with Viacom

If a sign of how seriously a company takes a lawsuit is the attorney it hires to defend it, Google quietly made a major statement last week. Listed at the end of its 12-page response to Viacom's (let's say it all together now) billion-dollar copyright infringement lawsuit over YouTube was Philip Beck.

Beck certainly isn't well known in the entertainment community, but in the high-stakes litigation world he's on the A-list, having been involved in some of the most contentious — and controversial — battles of the past decade. He played a key role in President Bush's efforts to stop the recount of disputed Florida ballots in the 2000 election, winning a ruling for Bush that was ultimately endorsed by the U.S. Supreme Court. He also served as special counsel for the Justice Department in its landmark antitrust case against Microsoft, and as lead counsel for defendant Merck & Co. in several trials stemming from claims by people who took Vioxx.

Beck and his firm might seem like an unlikely choice to defend a new-media company like YouTube in one of the most closely watched entertainment cases in years. Based in Chicago, far from both Google's Silicon Valley headquarters and New York, where the Viacom case is pending, Beck's trial résumé lists little experience with copyright cases.

But this might have been the point of hiring him. Bringing a pure trial lawyer on board sends a signal to Viacom that Google is willing to take the case all the way to a verdict. Plus, Beck will litigate the case with Google's longtime attorneys at Wilson Sonsini Goodrich & Rosati, one of the top firms for technology law.

"We looked at a lot of firms, and we couldn't be happier with the counsel we've selected," says Michael Kwun, Google's managing counsel who is overseeing the case. "Phil Beck and the Bartlit Beck firm are superstar litigators and have a fantastic trial record. Dave Kramer and Wilson Sonsini are also incredible, plus Dave has a long history of representing Google and YouTube and litigating cutting-edge Internet law issues."

Of course, the goal of hiring a big gun is often to help ensure it doesn't need to be used. Viacom made its own statement about what it thinks of YouTube in tapping as its lead counsel Donald Verrilli of Jenner & Block, who successfully argued to the Supreme Court in the MGM v. Grokster case that companies that build businesses on the illegal distribution of copyrighted material are liable for infringement.

Still, ever since Viacom filed suit in March, the most likely outcome has seemed to be a settlement and licensing deal similar to what other big content owners — including Viacom's sister company, CBS — are doing with new-media platforms.

Viacom's case, as well as another suit filed in California in July by photojournalist Robert Tur and a new class action filed Friday in New York, could take years to fully test how (or even if) the Digital Millennium Copyright Act applies to video-sharing sites like YouTube.

But even if the legal hires are just chess moves geared toward a more favorable settlement, at least Google and Viacom know if the case ever does get to trial, they will be ready.