Viacom’s case against Google and YouTube looks worse and worse each passing day. While we weren’t that impressed by Google’s mentioning the fact that Viacom tried to buy YouTube, back when the initial filings for summary judgment became public, as more details come out, this point actually highlights many more problems with Viacom’s claims that YouTube was just a “video Grokster” that thrived on infringing uses. In fact, it looks like Viacom execs were literally trying to push each other aside in trying to get YouTube for their own uses:
MTVN CEO Judy McGrath telling M&A execs: “Help us get YouTube. We cannot see it go to Fox/NBC” and “I want to own YouTube. I think it’s critical asnd if it goes to a competitior!!!!!!!!!!!!!!!!! Even if we have to buy it with a partner to keep it below the line.” Then-Viacom CEO Tom Freston:”If we get UTube…. I wanna run it.” McGrath: “You’ll have to kill me to get to it first.”The e-mail that starts that last exchange between Freston and McGrath is more about Viacom than YouTube. “We know what to do. I know this SUCKS its MADDENING that the revenue isn’t there when the content is….but we will fix it and get the stock back up. ‘Accretive’ digital acquisitions and a big idea or two. Fast.”
Does that sound like execs talking about a company that is sucking them dry through infringing uses? Furthermore, it takes away much of the strength of Viacom’s claims that Google is responsible for all this infringement because it bought YouTube knowing all this. Would Viacom begin suing itself if it had gotten its act together and bought YouTube?
Even more damning is the email exchange between Viacom General Counsel, Michael Fricklas, and Jason Hirschhorn:
“Mostly, YouTube behaves–and why not–user-generated content appears to be what’s driving it right now. Also the difference between YouTube’s behavior and Grokster’s is staggering. while the supreme court’s language IS broad; the precedent is not THAT broad.”
Yes, that’s from the guy who’s now trying to convince the world that YouTube was a “video Grokster” and that it survived solely on infringing content. Ouch. Viacom is trying to diffuse those claims by saying that Fricklas was simply ignorant at the time (way to throw your GC under the bus…). Funny, of course, that’s it’s perfectly fine for Viacom execs to make statements and later retract them, but Viacom harps on statements by YouTube execs, that are taken totally out of context, as if they’re gospel.
Separately, Fricklas has put out a “statement” on the case that reads like a blog post without a blog. It seems to highlight how this has really become more of a PR war than a legal war. Fricklas’ argument falls down on numerous accounts, though. He compares YouTube to LimeWire, despite astounding differences between the two — when even he knows the difference is “staggering.” But the most ridiculous of all is the following:
Google is the world’s leading search engine with a self-proclaimed mission to organize the world’s information. However, when it comes to videos on YouTube, Google cynically claims that search is too difficult for them to execute effectively.
That’s blatantly untrue and Fricklas knows it. No one is claiming that the search is too difficult. They’re claiming that determining whether or not the content is infringing is too difficult, and that’s supported by Fricklas’ own inability to know which clips were infringing and which were uploaded by Viacom itself. If your own General Counsel can’t tell what’s infringing and what’s not, how is it even close to reasonable to suggest that Google should be able to figure it out?
Also, the following is pretty low and also misleading:
Google claims it could not tell whether Viacom had authorized specific clips on YouTube — and misleadingly and falsely implies that we’re suing on clips we posted. The reality is simple: we are not suing about clips we posted.
No, it’s not suing over clips it posted… any more. But the original lawsuit did include such clips until Viacom realized this and dropped those clips from the lawsuit. Pretending that never happened is simply trying to rewrite history.
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