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YouTube's defense is a challenge for the Federal Court.
Source: Flickr user Spencer Holtaway

With the release last week of both parties’ motions for summary judgment in Viacom’s $1 billion copyright infringement lawsuit against YouTube and Google, it’s evident that the case has become the legal equivalent of the Battle of Stalingrad: a bitter and bloody fight to the death that grows increasingly tangential to the strategic outcome of the war the longer it drags on.

When the Wehrmacht invaded the Soviet Union in 1941, Stalingrad wasn’t even part of the initial battle plan. The German high command wanted to bypass the heavily defended city, deeming its capture an unnecessary diversion from a more critical objective (seizing the Russian oil fields around the Black Sea).

Once committed, however, Hitler refused to cut his losses and move on, even after his army was cut off and surrounded by the Soviets. The main battle lines moved on, sweeping back and forth across hundreds of miles of Russian steppe. But the fighting at Stalingrad dragged on for six more brutal months, through the grim Russian winter, long past the point where the city’s capture held strategic value, while killing an estimated 1 million men on each side (and nearly that many civilians).

Thankfully, no one has yet been killed in the Battle of YouTube. But the longer it drags on the less relevant it grows to the future of online video, both legally and strategically. (For a very different view of the case, see my colleague Bobbie Johnson’s take.)

Many of the legal questions raised by the case, especially those involving the safe harbor provisions of the DMCA, while unsettled when Viacom filed the suit in February 2007, have since been asked and answered in other cases. To note just a few:

• In March 2007, the Ninth Circuit ruled in Perfect 10 v. CCBill that “[T]he DMCA notification procedures place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of the copyright” owner, not on those of the service provider, as Viacom would have it.
• In August 2008, a federal district court ruled in Io Group v. Veoh, that the automatic and automated transcoding of uploaded videos does not disqualify a service provider from the DMCA safe harbor, again as Viacom would have it, by making them active participants in any infringement because the process still happens at the exclusive direction of the user.
• In September 2009, a different federal court ruled in UMG v. Veoh that a “general awareness of infringement,” as Viacom seeks to establish of YouTube through its emails, does not confer liability on a service provider.

While it’s possible that the court in Viacom v. Google could reach different conclusions, the odds that Viacom will get a favorable ruling on those points went way down after those decisions were handed down.

On a strategic level, moreover, Viacom is no longer even asking the court to change anything about the way YouTube currently operates:

[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom’s summary judgment motion is granted, do not intend to do so at trial.

Why not? Because May 2008 is when YouTube implemented its Content ID filtering system, mooting most of Viacom’s legal complaints.

So why go on? Presumably, in the hope that establishing YouTube’s liability prior to its implementing the filter will give Viacom leverage to demand that other UGC sites also adopt filters.

In UMG v. Veoh, however, the court made it clear that the DMCA confers no obligation on a service provider “to implement filtering technology at all, let alone technology from the copyright holder’s preferred vendor or on the copyright holder’s desired timeline.” So it could be a long wait for filtering even if Viacom wins.

Lawyers (of which I’m not one) of course may quibble about legal the significance of the various cases cited here. But it’s hard to see how any plausible legal outcome at this point could really advance Viacom’s strategic business interests.

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