YouTube logo grafitti (source)

I've been waiting patiently for someone on DigitalSociety.org to write about the Viacom losing its $1 billion lawsuit against YouTube for copyright infringement. (Both sides requested summary judgment, without a trial, and Google won.)

That site is strongly pro-business and its writers, while very knowledgeable about technology, aren't terribly savvy when it comes to the law. There was never really any question as to which side would win. Congress gave "service providers" like YouTube complete immunity from civil copyright infringement lawsuits so long as those providers obeyed certain rules, like taking down content when the owner complains (under the penalty of purjery) via the standard formatted complaint letter.

It therefore goes without saying that they believe Google, via YouTube, is a criminal enterprise that has built its business on stealing the content of others, or by facilitating that theft and then profiting from it. They think that should be illegal, and while that's a legitimate point, the fact is that federal law doesn't currently see it that way. Any plain reading of the DMCA would make that clear.

Well, Google won. Viacom is celebrating (to save face) and promising to appeal (which they will also lose) and of course someone at Digital Society was bound to complain that the judge got the law all wrong (possible, but not likely in this case), that Viacom will almost certainly win their appeal, and Google will this terrible reign of lawless piracy which is destroying the fabric of America and the planet will finally come to an end.

The arguments are weak and easily debunked.

1. "the judge's decision ignores Google's habit of gaming the system"

Regardless of how badly James DeLong wants it to be otherwise, there's no law against "gaming the system". That may be a valid complaint and persuasive justification for passing stricter copyright laws (naturally laws that benefit Big Business) but what it really amounts to in this context is asking and expecting a federal judge to exceed his authority to create new law from the bench, to protect the media/content industry.

By "gaming the system", Google is doing absolutely nothing wrong legally and the only appropriate avenue for addressing that concern is through Congress, not through the courts.

So long as Google remains faithful to its obligations under the DMCA, it gets immunity from civil lawsuits over copyright infringement whether it "games the system" or not. There is no "gaming the system" clause in the DMCA that lays out a line -- bright or fuzzy -- that revokes a provider's immunity for benefiting from the behavior it is legally allowed to do. That aspect of the DMCA has been well tested and defined over the past decade and it doesn't magically change just because of scope. YouTube has millions of videos and Viacom is a billion dollar conglomerate that through its subsidiaries produces a great deal of very valuable content.

But so what? The DMCA doesn't exist only to protect small sites or small content producers and it doesn't have a secret clause that invalidates its protections when we're talking about copyright infringement on a mass scale. All it does, at the direction of Congress (let's not forget the DMCA was passed because the media/content industry wanted it, they asked for a way to get their content taken down and they got precisely that and now they want even more), is create a framework for a content creator to get their content taken offline without the expense and time required for a lawsuit.

Viacom has proven over and over again that the DMCA is effective and works as intended. In this case it was revealed that Viacom gathered a list of 100,000 infringing videos (many of which Google proved Viacom had uploaded itself, by the way) which were sent in a single DMCA request. Google had most of the videos, if not all of them, offline within 24 hours.

The court considered Google's accusations and examined the factual record which showed Google faithfully upholding its obligations under the DMCA in a timely matter, and in the end, and under the current framework of copyright law in the United States, that is all that matters for Google to qualify for and retain its civil immunity.

The appeals court cannot and will not re-adjuciate that finding. It's decision will be limited to appropriateness, and other technical considerations. If Viacom wants to win its appeal, it needs to find a fatal flaw in the decision unrelated to a finding of fact. Otherwise it will continue to lose all the up to and through the U.S. Supreme Court.

That much is certain.

2. If Viacom were forced to regularly monitor YouTube for the presence of content they own, it would have very little time left to create new content.

That argument is just plain bizarre. Nobody at Viacom creates content. Viacom owns many other companies which produce content, and so Viacom owns it, but that's really as far as it goes.

The job of creating content is of the individuals working for those other companies that Viacom indirectly owns.

Those individuals -- let's use a TV show as an example since we're talking about YouTube -- work for a studio or production company (which works for the studio), and that studio may be owned by Viacom, which can then owns everything those companies create. If Viacom were forced to spend all of its time and resources monitoring YouTube, that may very well negatively impact its day-to-day operations, but it's not going to have any significant impact on the studio it owns, much less the people who work for that studio indirectly via a third party production company.

As a literal example, you might have Bob Jones who is the showrunner of Awesome Show, which is produced by Cool Productions, which is owned by CBS TV Studio, which is owned by Viacom. Ultimately Viacom owns the show and everything it creates, literally and figuratively, but Viacom does not literally create the show.

If Viacom's 500,000 lawyers spend all day watching YouTube for pirated episodes of Awesome Show, Bob Jones is still going to have as much time today to manage the production as he did before.

So the people who actually create new content, in other words, are not the people who work for or make up the bulk of Viacom. To say then that "[i]f Viacom were forced to regularly monitor YouTube for the presence of content they own, it would have very little time left to create new content" is like saying Congress is so busy debating health care reform that postal workers can't deliver the mail.

They both work for the government but they are not literally doing the same job.

That is the sum of DeLong's arguments about why this decision was bad, which is to say that he never bothered to make a coherent argument that it was wrong from a legal standpoint. I believe that's because there is no legitimate argument to be made that the decision was flawed.

It may not have been the outcome that Viacom and Brad DeLong wanted, but that was not the function of the courts, to give one side what it wants.

As I wrote above, the DMCA "safe harbor" provision makes it clear that all a "provider" has to do to gain immunity from civil lawsuits is make an effort to take down infringing content whenever they are made aware of it. The judge wrote in his decision that Google has done this exceptionally well:

"The present case shows that the DMCA notification regime works efficiently," the court noted, "when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007. By the next business day YouTube had removed virtually all of them."

That is all that Google must do to retain their immunity under the DMCA, and that, according to the court, is precisely what Google has done.