Let the games begin
Originally posted 2007-03-13 14:02:53. Republished by Old Post Promoter
Media conglomerate Viacom Inc. sued Google Inc. and its Internet video-sharing site YouTube for more than $1 billion on Tuesday in the biggest challenge yet to the Web search leader’s strategy to dominate the online video market.
The lawsuit accuses Google and its popular online video unit of “massive intentional copyright infringement,” threatening its ambitions to turn YouTube into a major distributor of entertainment and outlet for advertising.
This is going to come down to the old question that we wrestled with — without resolution — in the online auction context: Whether or not “trying really hard” to avoid copyright (or in the case of auctions, typically trademark) infringement is enough to get website such as YouTube (or eBay) off the hook.
In the case of eBay, where the issue is trademark, they have replicated the notice-and-takedown provisions of the copyright law and were tested on whether this helps — there is no safe harbor provision for trademark infringement — only by Tiffany, in a case that evidently never went anywhere.
Here there really is a legislative safe harbor under the Copyright Act. But why should an entire business model premised, at least in part, on profiting from copyright infringement get the benefit of a safe harbor? Viacom will argue that it shouldn’t.
UPDATE: Good analysis by Allahpundit and Google Watch. Meanwhile, when you’re a carpenter, every damned thing looks like a nail, doesn’t it! Also, Evan has the complaint and a sharp rundown on it.
November 13th, 2007 at 12:37 pm
[...] Old timers here will perhaps tire of my raising this again, but there are, I am thankful to say, a lot of new readers of this blog since the question of third-party liability for auction sites was last broached. Along with attorney Roberta Kraus I was the primary co-author of this report (PDF) several years ago that assessed whether or not such an action could lie. By the time it was passed up to the leadership of the “City Bar” here, it had been quite committee-fied — lots of hedging and “balance,” which is what committee reports have. But in fact the report was based on a much more forceful memorandum I had originally written for a client, urging that there definitely should in fact be third party liability here just as there is for brick and mortar landlords who knowingly permit markets in counterfeits , a conclusion European courts have had no difficulty reaching either. I don’t mind saying that a Tiffany attorney asked me for a copy of the City Bar version of the report, which I had mentioned in an email discussion group, shortly before Tiffany brought suit; it may have stiffened their spine but it surely was not a “but for” cause of the decision to proceed with litigation. Tiffany and other luxury goods companies are getting killed on eBay. eBay has had forever to clean up its act on this, and while its efforts are greater than zero, they don’t come close to what they ought to be. (It certainly knows how to act as a trademark plaintiff when its own ox is being gored.) The problem for Tiffany is that American courts are simply flabby on this issue: They are easily swayed by the argument that it’s “just too hard” for eBay to “police” a million zillion auctions. But “just too hard” really means “too expensive” — but does eBay has a constitutional right to a billion dollars in profits on over $6 billion in revenues? I don’t begrudge them the money, but I do begrudge them essentially placing the obligation to police its own market on the owners of trademarks. They’re profitable too, but the law grants them the right to whatever nutty markup the public is willing to pay and to protection from counterfeits. There is no reason under that law that eBay should be allowed to profit so profoundly from creating a market in counterfeits, including a piece of the action for ever sale of a fake that takes place. Maybe Tiffany will be the one to force the issue in this country — finally. [...]