Viacom Uncovers 'Smoking Gun' In YouTube Case

Bob Preston
NEW YORK — YouTube might be in big trouble.

In the latest development in a years-long copyright infringement case, plaintiff Viacom may have uncovered evidence that YouTube employees knowingly uploaded copyrighted content to the site.

Viacom, which owns Paramount and MTV, is pursuing a $1 billion lawsuit against the video-sharing giant.

Multiple online reports indicate that the evidence came in the form of emails among top YouTube brass that showed the employees discussing the existence of copyrighted material on their site and deciding not to remove it.

Such a revelation would constitute a major blow to YouTube's defense, which to date has rested on the protection provided by the Digital Millennium Copyright Act. In essence, YouTube can't be held responsible for all of the activity on its site if site officials aren't aware of all the activity.

But if YouTube officials knowingly uploaded and knowingly allowed copyrighted material to remain on its servers, they could be held accountable not only to Viacom's claims, but also to a separate class-action claim being pursued by a content company.

Both actions are aimed at YouTube's parent company, Google.

"The facts … described could very well be the smoking gun that puts a hole through Google's case," said entertainment attorney Roger Goff, who isn't involved with the case. "[If the facts are accurate], Google will have a very difficult time claiming that [its staff members] don't undermine its protection."

YouTube's attorneys have countered that the amount of content discussed in the emails constitutes a fraction of total content exchanged on the site.

"The characterizations of the supposed evidence, made in violation of a court order, are wrong, misleading, or lack important context and notably come on the heels of a series of significant setbacks for the plaintiffs," YouTube spokesperson Aaron Zamost said. "The evidence will show that we go above and beyond our legal obligations to protect the rights of content owners."

Another argument that could endanger YouTube's legal standing is its seemingly surgical ability to remove explicit content — and only explicit content — from its servers. If YouTube is contending that copyrighted content is so hard to ferret out, why is it so easy to recognize adult content?

That contradiction has the potential to expose YouTube to greater scrutiny and more legal trouble, according to adult industry attorney Rob Apgood.

"They're responsible for the content that's on their servers," Apgood told XBIZ. "They can stop people from uploading anything. To throw their hands up and say they can't control it is rubbish."

Tech analysts speculate that the case will likely go to trial next year and may result in a settlement.