Update #2, a rundown of the complaint:
Viacom’s complaint alleges six causes of action against YouTube and Google. The first three causes of action seek to hold YouTube and Google directly liable for copyright infringement, while the remaining three seek to hold the defendants liable on secondary liability theories. The causes of action are: (1) direct copyright infringement related to the unauthorized public performance of the uploaded videos, (2) direct copyright infringement related to the unauthorized public display of the videos, (3) direct copyright infringement related to the unauthorized reproduction of the uploaded videos by the YouTube service, (4) inducement of copyright infringement, (5) contributory infringement, and (6) vicarious infringement.
It will be interesting to see how, in pursuing the direct liability claims, Viacom overcomes the challenges presented by precedent such as Religious Tech. Ctr. v. Netcom, 907 F.Supp. 1361 (N.D. Cal. 1995). The Netcom case held that “[a]lthough copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” Arguably, the manner in which videos are performed, displayed and created (i.e., transcoded after being uploaded) is automatic, without any active, volitional involvement by YouTube in each instance.
Count IV is particularly interesting, as the allegations parrot the language from MGM v. Grokster, 125 S.Ct. 2764, 2780 (2005). Grokster provides that “[o]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Some commentators had speculated that YouTube might face some Grokster problems. See, e.g., Mark Cuban’s commentary here. Viacom has alleged that “[d]efendants operate the YouTube website service with the object of promoting its use to infringe Plaintiffs’ copyrights and, by their clear expression and other affirmative steps, Defendants are unlawfully fostering copyright infringement by YouTube users.”
Count V, for contributory infringement, has some interesting allegations supporting it. One of the elements required to prove contributory infringement is knowledge on the part of the defendant of the infringing activity. See, e.g., Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)(“[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”). To get around the potential problem that it might be implausible for YouTube to gain knowledge of each infringement, Viacom borrows from the language used to describe the real property doctrine of adverse possession, in calling the infringement occurring on YouTube “open and notorious.” So the argument apparently is, YouTube would have no way of not knowing that infringement is occurring.
To support its allegations of vicarious infringement in Count VI, Viacom addresses the purported “right and ability” of YouTube to supervise the infringing conduct, and to prevent further infringement. Perhaps realizing that it would be impossible to police each of the literally millions of videos uploaded to the site, Viacom makes much of the fact that YouTube has apparently been unwilling to use filtering technology in connection with works owned by any entities other than with whom YouTube has entered into licensing arrangements. In the complaint, this selectiveness of YouTube is characterized as “withhold[ing]” of protections.
Update #1: Here is a copy of the complaint.
More details are sure to emerge when a copy of the complaint becomes available, but the press release states that Viacom is seeking a billion dollars in damages plus injunctive relief.
As you’ll recall, early last month, Viacom sent DMCA takedown notices to Google demanding the removal of over 100,000 video clips to which Viacom owns the copyright.