May 1st, 2007
Google's Viacom response: An army of lawyers cut and paste
How many lawyers does it take to cut and paste "deny allegations" a few hundred times?
That's the most interesting question raised by Google's response to Viacom's $1 billion copyright suit over videos posted on YouTube (see Techmeme discussion).
If you recall Google needed a few extra days to craft its response. Judging from the response the delay must have been related to a broken CTRL key or "V" key. Clearly, this response is a cut and paste job of "Defendants deny the allegations."
Google did outline a dozen defenses (see PDF response). These defenses include:
- DMCA Safe Harbors: "Plaintiffs’ claims are barred in whole or in part because Defendants are protected by one or more of the DMCA Safe Harbors in 17 U.S.C. § 512." My take: This case should go to trial as a way to test DMCA.
- License: "Plaintiffs’ claims are barred in whole or in part by licenses, express and implied, granted or authorized to be granted by Plaintiffs." My take: Does this imply that Viacom inherently agreed to something by using YouTube–or partnering with Google?
- Fair Use: "Plaintiffs’ claims are barred in whole or in part by the doctrine of fair use." My take: Another reason to have a trial is to better outline fair use on YouTube.
- Failure to Mitigate: "Plaintiffs’ claims are barred in whole or in part because Plaintiffs have failed to mitigate their damages, if any." My take: This the old blame the victim pitch.
- Failure to state a claim: "Plaintiffs’ allegations fail to state a claim for copyright infringement of any work not listed on Exhibit A of the Complaint."
- Innocent intent: "Plaintiffs’ damages, if any, are limited by Defendants’ innocent intent." My take: Google tries the "we're good guys" spiel. Donna Bogatin doesn't buy the innocent intent argument.
- Copyright misuse: "Plaintiffs’ claims are barred in whole or in part by the doctrine of copyright misuse."
- Estoppel: "Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel."
- Waiver: "Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver."
- Unclean hands: "Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands." My take: Get used to the unclean hands thing. SAP's response to the Oracle suit is going to rely on the unclean hands argument, which essentially boils down to "you could have stopped this, but didn't for PR."
- Laches: "Plaintiffs’ claims are barred in whole or in part by the doctrine of laches."
- Substantial noninfringing use: "Plaintiffs’ claims are barred in whole or in part based on the doctrine of substantial noninfringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine’s inapplicability."
When it's all said and done Google wants legal fees for its time. The trial–if it proceeds–should be interesting.
Larry Dignan is Editor in Chief of ZDNet and Editorial Director of ZDNet sister site TechRepublic. See his full profile and disclosure of his industry affiliations.
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