Since the day Google shelled out for YouTube, cynics have been predicting that someone would make a dive for the search company's deep pockets and so it transpires as YouTube cops $1.3b writ over copyright.
Viacom ... filed a wide-ranging lawsuit against Google on Tuesday, accusing it of "massive copyright infringement". Viacom said it was seeking more than $US1 billion in damages and an injunction prohibiting Google and YouTube from further infringement.
Citing the $US1.65 billion that Google paid for YouTube, the complaint said: "YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value."
Yep, just as Xerox made a poultice out of the fact that it is legal to copy sections of anyone's published works without paying them a cent; a business case made on the exploitation of other people's work, tsk. And can't you just hear the drooling over that $1.65 Billion?
Google has succeeded in signing licensing deals with smaller content providers and limited agreements with larger ones, such as the BBC and the National Basketball Association. But broad agreements with the major networks and Hollywood studios have proved elusive.
Well, its difficult to negotiate with dinosaurs and twits so is that surprising?
Viacom ... said that clips of its programming had been viewed "an astounding 1.5 billion times" on YouTube.
Who, precisely, is "astounded" by this? And what, precisely, has it to do with the case? If excerpting is fair use, the number of people who see that excerpt is irrelevant. Since YouTube limits clips to 10 minutes max, and the vast majority of such clips are significantly shorter, the issue is not rebroadcast of entire programmes without payment, it is bean-counter sphincter control that is at issue here.
And then the question becomes one of the market value of the damage.
Lets set aside for a moment that YouTube has not charged Viacom for marketing its programmes to 1.5 billion sets of eyes, and not just marketing but in the vast majority of cases praising, enthusing about and holding up as exemplary in some way the programmes that Viacom produces; no, lets put all that aside.
Lets ask what the market is for such clips. How many, precisely, 2-5 minute clips of its programmes has Viacom sold, or attempted to sell, and at what rate, over the same period? And for how long before the sale to Google, did Viacom engage in such acticvities?
What is the size and value of the market for excerpted clips of previously broadcast programmes and what has Viacom done to exploit that market? Because the only damages they can make a case for is exactly there, all the rest is smoke and BS.
If I was on the jury for this one I would need a daily dose of Botox to keep a straight face and then throw it out of court with costs to YouTube. And if my fellow jurors came in with a guilty verdict, I would push like hell for exemplary damages of $1.
And if I had shares in Viacom, I'd be heading for the broker with a sell order about now.
Since I am NOT a lawyer, and Larry Lessig is, you may want an actually informed opitnion, which you can get at Viacom v YouTube
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