Google To Viacom: Sorry, You're All Wrong

Rob Hof

This won't come as a surprise to anyone, but today Google filed an answer to Viacom's copyright lawsuit against Google and its YouTube video sharing service. As one person at Google put it, the answer to the $1 billion suit, filed in mid-March, basically says "Deny, deny, deny." One by one, Google refutes all of Viacom's significant claims of "massive" copyright infringement by YouTube.

"Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act," the answer reads in part. "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."

The company also demands a jury trial, and it has hired the Chicago firm Bartlit Beck Herman Palenchar & Scott, which Google characterized as ace trial lawyers, in addition the Google's frequent counsel, Wilson Sonsini Goodrich & Rosati. Many people think a settlement is likely at some point. But given that no settlement negotiations are underway currently, according to Michael Kwun, Google's managing counsel for litigation, Google apparently can use some good trial lawyers.

In a hastily called news conference with reporters already attending a Web personalization presentation at the Googleplex in Mountain View, Kwun said Google believes the lawsuit should never have been filed. Among a list of a dozen defenses, Kwun said the key one is the Safe Harbor provision of the 1998 Digital Millennium Copyright Act, which to some legal minds provides a defense for firms that quickly take down copyrighted material when it's requested by copyright holders. What's more, Kwun said, "We actually got well above and beyond what the law tells us to do," such as marking copyrighted files that have been taken down once, so they're immediately taken down the next time they're uploaded, and a 10-minute limit on uploaded videos, which prevents full TV episodes from even getting posted.

Kwun took a jab at Viacom and other studios, too. "There's a certain irony to the situation (with the DMCA)," he said. "These are the very people that helped to design the law. Suddenly, they don't want to live with the other end of the deal."

Although CEO Eric Schmidt and other Google executives have characterized the Viacom lawsuit as a form of negotiating through the courts, Kwun said Google's "more than happy to litigate. I don't view that as a business negotiation."

Kwun shed no light on timing to fulfill Schmidt's recent promise to come out with more powerful tools for copyright owners to get pirated videos off YouTube.

Unless a content deal leads to Viacom dropping the suit, it could take awhile for the court case to get underway. Kwun said the next move is a joint conference on July 27 with Judge Louis L. Stanton in the New York Southern District Court, where the initial schedule for the case will be set.

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