Evidence in Viacom/YouTube Suit Unsealed

NEW YORK: Citing internal e-mails at YouTube, Viacom says the file-sharing site was aware of copyright infringement taking place but opted not to do anything about it; the Google-owned company has hit back, accusing Viacom of "secretly" uploading its content to YouTube.

Yesterday, the evidence compiled by Viacom against YouTube in its copyright infringement suit was unsealed. It contains a slew of e-mail exchanges between YouTube founders Chad Hurley, Steve Chen and Jawed Karim about unauthorized content being uploaded to the site. For example, in 2005 exchange, Chen says to Karim: "Jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

Viacom also points to emails from Google executives in the run-up to the $1.65 billion acquisition of YouTube. Google executive Peter Chane said in an email: "my concern about YouTube is their dependence upon copyrighted content for traffic." David Eun, in a May 2006 email, said "a large part of their traffic is from pirated content."

"Viacom’s brief misconstrues isolated lines from a handful of emails produced in this case to try to show that YouTube was founded with bad intentions, and asks the judge to believe that, even though Viacom tried repeatedly to buy YouTube," said Zahavah Levine, YouTube chief counsel, in a blog post. Levine also says: "For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube. Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself. Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong."

"YouTube and sites like it," Levine said, "will cease to exist in their current form if Viacom and others have their way in their lawsuits against YouTube."