4 ms·

Is that really a defense, outside the court of public opinion? Not every Daily Show clip was uploaded by Viacom, and it's not infringement when Viacom does it.

ajross 17y ago
It may not be a defense against infringement, but it certainly does speak to the determination of damages suffered. You can't claim that youtube owes you $1B when clearly you saw positive value in having those clips up.
roc 17y ago
It is, if we're still debating whether a YouTube clip is "Fair Use". One of the tests of Fair Use being the effect of that use on the material's market. It's difficult to argue that YouTube clips kill the value of your product, when your promotions department clearly believes the opposite is true. It might also be of legal relevance, if Viacom were complaining specifically about the clips it uploaded itself and moreso if they tried to use the presence of those clips to pressure a favorable business deal.
bobbyi 17y ago
If they win the case, the amount of money they get will be highly related to how much "damage" youtube did to them. The fact that they found it valuable to have their content on youtube undermines their arguments that youtube is causing them grievous harm.
- modeless 17y ago
  Is that really true? Seems to me like the monetary awards in copyright cases these days have very little to do with actual damages; see the recent P2P filesharing cases where the damages were over a million dollars for a double-digit number of files shared.
msg 17y ago
I take the point to be that if the judge doesn't uphold the DMCA safe harbors, they need to tell Youtube what they can legally do. Viacom's stated alternative is for Youtube to divine the intent of the copyright holder. Arguing that the alternative to DMCA is absurdity and divining the intent of Viacom would have been impossible will tend to undercut this alternative.
zmmmmm 17y ago
I think it supports their claim for safe harbour under DMCA. To invoke "safe harbour" I think you need to show that it would be unreasonably difficult to police the content yourself. Google already has a good argument for that, but it strengthens it if they can show that Viacom is also uploading to YouTube in a legal yet indistinguishable (to YouTube) way to the people it claims are infringing.

ajross 17y ago

It may not be a defense against infringement, but it certainly does speak to the determination of damages suffered. You can't claim that youtube owes you $1B when clearly you saw positive value in having those clips up.

roc 17y ago

It is, if we're still debating whether a YouTube clip is "Fair Use". One of the tests of Fair Use being the effect of that use on the material's market. It's difficult to argue that YouTube clips kill the value of your product, when your promotions department clearly believes the opposite is true. It might also be of legal relevance, if Viacom were complaining specifically about the clips it uploaded itself and moreso if they tried to use the presence of those clips to pressure a favorable business deal.

bobbyi 17y ago

If they win the case, the amount of money they get will be highly related to how much "damage" youtube did to them. The fact that they found it valuable to have their content on youtube undermines their arguments that youtube is causing them grievous harm.

modeless 17y ago
Is that really true? Seems to me like the monetary awards in copyright cases these days have very little to do with actual damages; see the recent P2P filesharing cases where the damages were over a million dollars for a double-digit number of files shared.

msg 17y ago

I take the point to be that if the judge doesn't uphold the DMCA safe harbors, they need to tell Youtube what they can legally do. Viacom's stated alternative is for Youtube to divine the intent of the copyright holder. Arguing that the alternative to DMCA is absurdity and divining the intent of Viacom would have been impossible will tend to undercut this alternative.

zmmmmm 17y ago

I think it supports their claim for safe harbour under DMCA. To invoke "safe harbour" I think you need to show that it would be unreasonably difficult to police the content yourself. Google already has a good argument for that, but it strengthens it if they can show that Viacom is also uploading to YouTube in a legal yet indistinguishable (to YouTube) way to the people it claims are infringing.