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In a court filing on Friday, Google responded to Viacom's claim that Google and YouTube are responsible for "massive copyright infringement of Viacom's entertainment properties" by warning that Viacom threatens the lawful exchange of information online.
"By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression," Google's filing says.
Viacom sued Google and YouTube in March 2007, claiming that about 160,000 unauthorized Viacom clips have been posted on YouTube and viewed more than 1.5 billion times. It is seeking $1 billion in damages.
Google has said that it complies with the Digital Millennium Copyright Act by responding to takedown notices from copyright holders. The DMCA immunizes online service providers from liability for copyright-infringing activities of their users so long as certain requirements are met.
Google argues that Congress' decision to provide online service providers with statutory immunity from copyright claims if they meet certain obligations has proven to be the right one.
"Looking at the online world today, there is no question that Congress made the correct policy choice," Google's filing states. "Legitimate services like YouTube provide the world with free and authorized access to extraordinary libraries of information that would not be available without the DMCA -- information created by users who have every right to share it. YouTube fulfills Congress' vision for the DMCA. YouTube also fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works."
One technology that YouTube has said exceeds the company's legal duties is YouTube Video Identification, a technology introduced last October for identifying and removing copyrighted content that has been uploaded to YouTube without authorization. Critics of the technology have said the system is not as effective at identifying infringing content as they would like.
Gregory Rutchik, copyright litigator and founder of The Arts & Technology Law Group, speculates that Google and Viacom will ultimately settle. "I really don't think Google wants to make new law," he said. "Viacom is ultimately looking to be paid. ... The short answer is that this is ultimately an economic business relationship, not too different from other licensing deals."
Where things may get complicated is if Viacom is unable or unwilling to license certain content, Rutchik suggested, noting that Viacom has an exclusive content deal with Joost, a would-be YouTube rival.
At the same time, Google cites among its defenses the doctrine of unclean hands, a legal doctrine that denies a plaintiff's right to relief based on unethical behavior or actions done in bad faith.
Rutchik said this defense is more frequently seen in patent cases, when the defendant has evidence that a patent owner doesn't legally own the claimed patent rights. Google may be planning to show that Viacom either can't prove ownership of certain content or that Viacom failed to meet its obligations under the DMCA because of failure to follow the DMCA notice requirements, he suggested.
Google in 2007 won a significant copyright victory against Perfect 10, an adult magazine that sued Google in 2004 for distributing thumbnails of its images, in part because of the inadequacy of many of the takedown notices it received.