Viacom v. YouTube: Weighing the Odds

Mar 19, 2007  •  Post A Comment

Last week, an old-media titan sized up a new-media titan and said, “I can take you.”

Viacom sued Google and its video-sharing site YouTube for copyright infringement, seeking $1 billion in damages. Other media giants such as NBC and CBS, despite their above-board deals with YouTube, also have rattled their sabers, suggesting publicly that Google and YouTube don’t do enough to protect copyright.

Whether the Viacom-YouTube deal goes down in court or at the negotiating table, the party with the best case will have the upper hand in controlling video online in the future.

TelevisionWeek surveyed legal and industry experts about this copyright bout. The consensus: Google and YouTube have the edge.

“The basis for this suit is hard to understand as to why Viacom thinks it will succeed. The fair-use concept covers much of what’s up there on YouTube. Viacom doesn’t really have a solid legal leg. Google is in pretty good legal shape.”
Ed Black, president of the Computer & Communications Industry Association, which helped develop the Digital Millennium Copyright Act

“The outcome of a case about innovative uses of technology is rarely certain, but Google and YouTube have a strong argument that the DMCA safe harbors protect them from liability. What is clear is that any ruling in this case will have profound implications for the many businesses, like Yahoo, eBay, Facebook and so on, that host content on behalf of users.”
Corynne McSherry, staff attorney for Electronic Frontier Foundation

“Viacom will win. That’s not a question. The only questions are what will the damages be and how bad will the follow-up suits be.”
Mark Cuban, co-founder, chairman and president of HDNet, Magnolia Pictures and Landmark Theaters and an outspoken industry voice on piracy

“If the definition of winning is growing an audience and doing business, then Viacom is already losing, for it is hiding its content from fans and not allowing fans to recommend its content. This will increase its marketing cost to draw people to its site and engender ill will with those fans. … The safe harbor makes it difficult for Viacom. YouTube has been following that law so far as I can tell, so the rest is degrees: Are they trying hard enough? Can they provide the means to do better at it? Is someone else doing better?”
Jeff Jarvis, professor at the City University of New York Graduate School of Journalism, and a new-media expert blogger at BuzzMachine.com

“It appears at this early stage from a purely legal point of view, especially given the Supreme Court’s recent views as expressed in the MGM v. Grokster decision from 2005, that Viacom has the better case to prove some form of copyright infringement. However, Google has become a very powerful, wealthy force in the Internet dot-com space, and its ownership of the highly valued and even more highly valuable YouTube service will play a significant role in leading to what we believe will be an early settlement, through licensing or other means, of the dispute.”
Randy Lipsitz, a partner at Kramer Levin in New York who specializes in intellectual property law