Alleging hypocrisy, YouTube revealed records that show Viacom intended to buy YouTube several months before it filed suit. On top of that, Viacom willingly uploaded its own content on YouTube. Google representatives issued the following statement on their YouTube blog:
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 quickly shot back, showing that Google executives themselves acknowledged that YouTube relies on stealing copyrighted content:
So who's in the right? Tech blogger Mike Masnick and entrepreneur Mark Cuban offer two opposing viewpoints:
YouTube was intentionally built on infringement and there are countless internal YouTube communications demonstrating that YouTube’s founders and its employees intended to profit from that infringement. By their own admission, the site contained “truckloads” of infringing content and founder Steve Chen explained that YouTube needed to “steal” videos because those videos make “our traffic soar.”
Google bought YouTube because it was a haven of infringement. Google knew that YouTube’s popularity depended on infringing materials with several senior Google executives warning that YouTube was a “rogue enabler of content theft.” Instead of complying with the law, Google willfully and knowingly chose to continue YouTube’s illegal practices.
- Google Is Right, writes Mike Masnick at Tech Dirt: "Google's motion... is quite compelling and highlights how even if execs are aware of general infringement across the site, it was impossible for them to distinguish what was authorized and what was not, as well as what was fair use and what was not. To require a third party like Google to make such determinations would effectively gut the ability of pretty much any user-generated content site to exist."
- Viacom Has a Legitimate Legal Argument writes Mark Cuban at Blog Maverick. Because Google knew what type of content was on its site, it's not in line with the Digital Millennium Copyright Act (DMCA), argues Cuban. He elaborates on the legal thrust of the DMCA:
The logic in the DMCA was: If you dont know what is on the site, you can’t be responsible for policing it. ...
What caught my eye as “game over” material in the quotes from Youtube founder emails was the constant decision making process over what videos should stay and what should be removed. They talked in one case about a guy uploading a ton of Family Guy videos and what they should do about it. Another stated “if we reject this we need to reject all the copyrighted ones”. Another asked “cant we keep it up a little longer”.
No question they monitored the site and knew what content was on the site. ...
They monitored the site and they made decisions based on financial gain.