Google and the US media giant Viacom have issued statements attacking each other after a judge released documents relating to Viacom's billion-dollar copyright infringement case against YouTube.
The courtroom opponents have each separately requested summary judgement in the case, which is being heard by Judge Louis Stanton in US District Court in the Southern District of New York. In the three-year-old suit, Viacom alleges that YouTube posted nearly 160,000 unauthorised clips of content owned by Viacom. It has asked the court to halt the alleged copyright infringement and for YouTube owner Google to pay $1bn (£666m) in damages.
Viacom said in a statement on Thursday that the documents showed YouTube was "intentionally built on infringement" and included communications demonstrating that "YouTube's founders and its employees intended to profit from that infringement".
Some of the emails in question came from the period running up to Google's $1.65bn takeover of YouTube, from which YouTube's founders made hundreds of millions of dollars.
Also on Thursday, YouTube chief counsel Zahavah Levine wrote in a blog post that Viacom, which owns MTV and Paramount Pictures, "continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there".
According to Levine, Viacom hired 18 marketing agencies to upload content it owned to YouTube. He said these videos were "roughed up" to make them look as if they had been leaked or posted without authorisation.
"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," he said.
YouTube first became available in beta form in April 2005 before a full public launch in December of that year. Google bought the company in late 2006 for $1.65bn in Google stock. Viacom launched its suit in early 2007.
Viacom's submissions to the court included evidence of many emails sent between YouTube co-founders Chad Hurley, Jawed Karim and Steve Chen. In one email sent on 19 July 2005, Chen asked Karim to "please stop putting stolen videos on the site".
"We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it," Chen wrote.
In an email discussing competing video websites and sent on 29 July 2005, Chen told Hurley and Karim: "Steal it!" Hurley responded: "Hmm, steal the movies?"
"We have to keep in mind that we need to attract traffic," Chen replied. "How much traffic will we get from personal videos? Remember, the only reason why our traffic surged was due to a video of this type... viral videos will tend to be THOSE types of videos."
In its statement, Viacom said Google bought YouTube because it was a "haven of infringement", and Google had "wilfully and knowingly" chosen to continue YouTube's "illegal practices".
"Google and YouTube had the technology to stop infringement at any time but deliberately chose not to use it," Viacom said. "They would only offer to protect Viacom's content if Viacom agreed to licence those works, effectively holding copyright protection as ransom for a licence. The law is clear that Google and YouTube are liable for their infringement."
Viacom also referred to Google's accusations as "red herrings".
Levine said in her blog post that, if Viacom were to win its lawsuit, "YouTube and sites like it will cease to exist in their current form".
The YouTube lawyer asked the judge to rule that the company is protected by 'safe harbour' rules in the US Digital Millennium Copyright Act (DMCA). These rules protect sites from liability, as long as they take down copyrighted content when asked to do so.
The two sides now have until 30 April to file arguments opposing each other's motions, with final arguments to be completed by 4 June.
Talkback
From what I've read here and elsewhere Viacom stands to lose very heavily from this spat. They have already lost all public credibility since it came out that they, themselves posted some of the stuff they are screaming about. I think they can expect some serious investigation.
If Google maintains the 'that was then - this is now' stance, especially that since they bought youtube they cleaned up it's act, I don't think they can go far wrong.