YouTube Chief Counsel Zahavah Levine posted some interesting things today on YouTube’s official blog about Viacom’s strange, love-hate relationship with the video streaming giant.
I am not a lawyer©, but the allegations made certainly seem like Viacom is using the legal system to bully YouTube merely because Viacom resents its existence. (The post alleges that Viacom vacillates between trying to shut the site down and trying to purchase it. If I can’t have you, no one will!) Levine makes an excellent case for the absurdity of Viacom’s actions against YouTube:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Bolding mine. On first glance, it looks like Viacom never watches Judge Judy. If I’ve learned one thing from TV judges, it’s that the law’s impartial guardians do not like to be misled or lied to, and if you’re acting in a shady fashion, you have less legal ground to stand on. I believe the deliberate obfuscation of where content was uploaded from and by whom would certainly rankle Judge Sheindlin. Don’t pee on my leg and tell me it’s raining, Viacom!
Interestingly, it seems that Viacom doesn’t even know which clips are the offending clips and have actually complained in court about videos uploaded by Viacom employees on behalf of Viacom. Awkward.
Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
Levine points out the idiocy quite concisely. Take it away, Counselor:
Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.
While the reasons behind such a legal move are certainly complex and impossible to sum up in a few sentences, it would seem that Viacom has a bit of a bone to pick with YouTube and is using litigation to attempt to slow the competition down. Levine caps the post by asserting that they “look forward to defending YouTube, and upholding the balance that Congress struck in the DMCA to protect the rights of copyright holders, the progress of technological innovation, and the public interest in free expression.”
What do you think? Is this like some roundabout form of corporation-level civil entrapment? Should Viacom be able to sue for their own violations, against themselves?