Google: Viacom Abusing Copyright Act

Google struck back at Viacom through the media on Thursday, responding to a March 24 op-ed by Viacom's general counsel Michael Fricklas in the Washington Post with a letter of its own from Google's counsel for the case.

Managing Counsel Michael Kwun called the Viacom suit "an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own," saying it was abusing the Digital Millennium Copyright Act.

Kwun accused the company of first supporting the law as it passed through Congress, and then deciding to not follow through with its responsibilities in identifying copyrighted content. The DMCA provides a "safe harbor" for sites like YouTube as long as they remove offending content upon request.

If Viacom is successful with its suit within the courts, Kwun argued it would "[place the] burden on hosting platforms" and "would turn the DMCA on its head." He further argued that the lawsuit had no basis in law.

YouTube had earlier cooperated with a request to remove some 100,000 videos that Viacom saw as infringing, although it later rescinded some of those requests over confusion whether they actually infringed. Kwun argued that Viacom was attempting to force YouTube to make that decision.

"Fortunately, the law is clear, and on our side," he concluded.

On March 24, Fricklas argued that the DMCA did not protect YouTube, saying the company knew that its users were posting infringing material and therefore did not qualify for safe harbor protection.

"If the public knows what's there, then YouTube's management surely does," he argued. "Under the law, the obligation is right where it belongs: on the people who derive a benefit from the creative works and are in the position to keep infringement out of their businesses."