Viacom Files Landmark Copyright Case Against Google, YouTube

Even if Viacom's case against Google ends in settlement -- which at this early stage appears impossible -- its outcome is likely to set both legal and technological precedent that other players in the digital space may find themselves forced to follow. More importantly, it could change the chemistry of video sharing services everywhere, even before the case reaches a conclusion.

How so? To protect themselves from a similar legal assault, competitive services may choose to adopt more restrictive uploading policies, and start policing their uploads more carefully. The task of policing every upload personally, to ensure that it doesn't include material that appears to belong to someone else by law, would be unfathomable for most companies. But a technological means to prevent somebody's second-hand copy of some sitcom recorded on tape from being replicated throughout the Web, is even more out of reach.

Inevitably, there will be smaller players in the video sharing business who will today be reconsidering whether their current business model -- if there is one -- is worth the risk.

But the impact goes further: To whom does "second-hand" video belong? Certainly, the grainy reproductions of stuff taped from broadcast TV, though digital in its delivery, shouldn't really count as "high resolution." The US Supreme Court has upheld individuals' rights to tape video and audio over the public airwaves, and has unofficially permitted those rights to pertain to cable and satellite services as well, so far as those tapes aren't redistributed to any broad extent.

Giving a copy of a tape of last week's Battlestar Galactica could legally be frowned upon, if there weren't millions of individuals already doing it. Sharing over the Internet would qualify as distribution en masse. But if you were to try to write a law to regulate it, where would you begin? Why would one million people making one copy each be legal, and one person making one million copies not be?

The legal quandary does not stop there. Up to now, P2P services have been able to defend themselves to a limited extent on the theory that they have no centralized repository of files, and thus no responsibility for the content that flows through them. If the new version of the Boucher Bill is passed, conceivably, P2P services would be protected by law from copyright infringement claims on the theory that they weren't expressly created for that purpose. The exception would be when services advertise themselves to their users for their infringement abilities, as was the situation in MGM v. Grokster.

If Viacom's goals with its YouTube lawsuit are reached, the only type of video sharing service of which you'd ever want to be the proprietor, is one that has no centralized repository of files - a P2P service, assuming Boucher passes. Otherwise, the only legal protection you might have as a proprietor against multi-billion dollar lawsuits from the content industry is one of two possibilities:

1) you implement a highly restrictive DRM scheme to protect content available for download, which is something extremely few users say they actually want or would accept, and which could go against the whole purpose of the video sharing business model; 2) you try to use the Boucher argument as a defense: that you didn't create your sharing system to explicitly thwart copyright. And that will be extremely hard to prove not just for psychological reasons, but for technical ones as well: You would not have created your sharing system in the first place; if it's like YouTube, it uses the Web, which pre-existed before you came along.