Google Answers Viacom in YouTube Appeal (Exclusive)

Google has filed its brief to the Second Circuit Court of Appeals in the closely-watched $1 billion lawsuit brought by Viacom over alleged copyright infringement on YouTube.
Odd Anderson/AFP/Getty Images

Google has filed its brief to the Second Circuit Court of Appeals in the closely-watched $1 billion lawsuit brought by Viacom over alleged copyright infringement on YouTube.

In the 94-page document, Google outlines why it believes it qualifies for "safe harbor" from liability under the Digital Millennium Copyright Act.

The web giant says that in passing the DMCA in 1998, Congress recognized that infringing material would pop up online and that requiring ISPs "to engage in an arduous screening process for every user-posted text, picture, and video would inhibit free expression and stifle the growth of the Internet."

Google says that Congress' only "sensible approach" at the time was to put the onus on copyright holders to inform service providers of infringing material to take down.

That's exactly what it has done, says Google.

"Plaintiffs cannot point to a single clip that YouTube knew was infringing but did not take down," the company writes in the brief it filed yesterday. "Nor can plaintiffs make any serious claim that YouTube should have known simply by looking at a given video whether it infringed their copyrights. That is due in part to the ways that plaintiffs themselves used YouTube to advance their own businesses -- a topic about which their briefs are virtually silent."

Contrary to Viacom's claims about a video sharing service that was founded in 2005 on the back of rampant copyright sharing with the full knowledge of its founders, Chad Hurley, Steve Chen, and Jawed Karim, Google presents an alternative history of YouTube's "legitimate" purpose and upbringing. "YouTube's founders took copyright issues seriously," the company writes, rejecting some clips when the operation was small enough for personal review of uploaded clips , "and recognized that doing so was important to building their business."

Efforts to work with the MPAA and adopt copyright fingerprinting technology like Audible Magic and Content ID are mentioned. So too is YouTube's burgeoning system and how it has become an important outlet of free speech by governments around the world, students and educators, nonprofit organizations, celebrities, law enforcement officials and more.

The history of the company -- and its purpose -- underpin the big, important legal question in this case: What kind of knowledge is necessary to trigger an ISP like YouTube to engage in copyright-infringing material cleanup -- actual or general knowledge?

Google says that YouTube's leaders made good-faith efforts to remove infringing videos, but that it had no legal obligation to act on mere general, non-particularized knowledge that copyright infringements were happening on its system. In its own brief, Viacom raised the "red flag" standard -- incidents that should provoke large review -- but according to Google, "a red flag must be 'blatant,' something from which the only reasonable conclusion is that the material or activity is infringing."

The company also takes shots at Viacom's own use of YouTube, pointing out its employees and agents were uploading clips for promotional purposes and then, during the litigation in this case, its lawyers had trouble excluding those clips from copyright claims. The implication being that if Viacom couldn't figure it out, how could Google?

Google makes other points to the Second Circuit, including the fact that it is a storage service at the behest of its users, and doesn't receive financial benefit directly attributable to infringing activity. "YouTube is worlds away from any service that has been found liable for inducement, and plaintiffs' evidence neither satisfies Grokster nor takes YouTube outside the DMCA," writes Google, referring to the Supreme Court Grokster case that found a file-sharing service liable for contributing to the infringing acts of its users.

Reached for reaction, Viacom issued this statement to Google's arguments: "Under the DMCA, content owners and systems operators share responsibility for the protection of copyrighted content online. It was never intended to absolve companies like YouTube from liability for building a business by deliberately infringing others’ creative works. We look forward to the review of this case by the court of appeals, and are confident that it will vindicate the rights of content creators."

Here is Google's entire brief: