Google Pleads DMCA Defense in Viacom Dispute over YouTube

In its response filed Monday to a complaint against it by Viacom in New York District court, claiming its YouTube division is guilty of copyright infringement against Viacom properties, Google formally invoked the terms of the Digital Millennium Copyright Act, effectively claiming it's exempt from responsibility for the content shared over YouTube because it doesn't know what that content is.

While YouTube and its new parent, Google, have been taken to task in the past by former prospective content partners for not having adopted controls against IP infringement quickly enough, it could be the lack of such controls which is providing Google with its defense against Viacom: a "safe harbor" against liability by virtue of lack of control.

In the only paragraph of the response that argues a point, Google's attorneys write, "Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the internet as an important new form of communication. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well above and beyond what the law requires."

BetaNews has contacted Google's attorneys for clarification of other language in the filing, and such clarification may be forthcoming.

It's a tricky tightrope that Google is walking. The DMCA "safe harbor" provision exempts a service provider from liability for infringing content distributed over its service, provided that distribution passes a five-point test: 1) somebody outside of the service provider must have started the transmission; 2) the transmission process can take place completely automatically without human intervention or knowledge; 3) the service provider doesn't select who gets to receive the material being transmitted; 4) the service provider doesn't copy the material itself during the interim phase when it's being passed from original transmitter to receiver; and 5) the content is unmodified when received. In other words, the service must be purely passive, like the provider of a wire.

Some might argue that if YouTube were purely passive, it would not be as popular or as functional as it is today. Last March, an editorial by a Viacom attorney in the Washington Post tried to pre-empt Google's attempt at a "safe harbor" defense in the court of public opinion, by arguing there's no way that all of YouTube's employees are kept in the dark about the content their service transmits.

In its response, Google's attorneys formally submit their motion to dismiss the entire complaint, and recoup the company's court costs.