Viacom v Google: The $1bn battle for content

When is copyright theft not illegal? In the struggle to answer this defining question of the internet age, one entertainment giant has declared war. Viacom, owner of the Paramount and Dreamworks film studios and television channels including MTV, Nickelodeon and the Comedy Channel, has launched a $1bn (£515m) copyright-infringement suit against Google.

The case, which accuses Google's YouTube video-sharing site of building "a lucrative business out of exploiting the devotion of fans to others' creative works", has the potential to redefine how content is used on the internet. "If it goes to court, this will be the biggest case since Napster [the music-sharing website shut down by litigation in 2002]," says Edgar Forbes, senior lecturer in media law and intellectual property at Bournemouth University.

Viacom says 160,000 video clips for which it owns the intellectual property rights have been viewed over 1.5 billion times on YouTube. Last month it asked Google to remove them from the site, but YouTube users simply uploaded them again. To Google, and YouTube's many fans, this is proof of the site's democratic ethos and, crucially, legal as well.

Citing the Digital Millennium Copyright Act, passed in the US in 1998, YouTube claims "safe harbour" under rules that protect web hosts from having to monitor the activities of their users - as long as they "expeditiously disable access to material" when informed that it breaches copyright.

YouTube insists it does take clips down when asked to by copyright owners and points to a recent agreement to host BBC video as evidence it is reliable. Viacom disagrees: "Their [You- Tube's] business model is based on building traffic and selling advertising off of unlicensed content... YouTube strategy has been to avoid taking proactive steps to curtail the infringement on its site, shifting the entire burden of monitoring YouTube... on to the victims of its infringement."

The "safe harbour" provision gives this case resonance far beyond Viacom and Google. "This is American law," says Mr Forbes, "but in relation to the internet, US law gives a pointer. America has led the way in terms of both legislation and litigation." He believes a ruling against Google could stymie illegal online exploitation of newspaper content as well.

Bloggers and websites increasingly use newspaper articles to attract users, provoke debate and sell advertising on their sites. "This is a big issue," says Larry Kilman of the World Association of Newspapers. "If a company like Google is using content and selling advertisements around it, that is of concern to many newspapers and publishers." The association, with partners including the global news agency Agence France-Presse (AFP), Macmillan Publishers and Independent News & Media (parent group of The Independent on Sunday), is working to create an international protocol to regulate online use of newspaper content.

The Automated Content Access Protocol (Acap) would let owners of published content communicate permission information automatically in a form recognised by internet search engines. This would allow legitimate online users to comply easily and quickly with copyright law. Lawyers say such an international standard would be immensely useful. But making it work requires absolute clarity about what is protected by copyright and how it can be enforced.

"The internet has changed the world of journalism beyond our imagination," says John Toner of the National Union of Journalists. "It has created an enormous demand for text and images." The NUJ fights for the rights of individual journalists to share in the proceeds earnt by their work. It fears the web is encouraging disrespect for copyright.

British law allows quoting of newspaper articles for criticism or review, but does not permit republication of entire articles. "There is an urban myth that you can quote 400 words for free," says Mr Toner, "but no law says that." Mr Forbes explains: "Where websites republish so that readers do not have to go to the original newspaper in order to read the whole article, that is infringement."

Unfortunately, such theft is rampant and writers cannot afford to challenge it. "The costs act against individuals seeking justice in copyright cases," says Mr Toner. "The expense of suing is much greater than any potential compensation."

There is an urgent need for clear case law to set guidelines - and Viacom's case may provide this. "Google is making money in a way that challenges the whole idea of copyright owners selling content," says Mr Forbes.

"These are serial infringements and the court will look at what Google has done to prevent them. The traditional defence - that we will take it down if you complain - may not apply."

Google is bullish. "We are confident that YouTube has respected the legal rights of copyright holders," says a spokesman. "YouTube is great for users and offers real opportunities to rights holders - the opportunity to interact with users, to promote their content to a young and growing audience, and to tap into the online advertising market."

The arguments are similar to those advanced by Napster, which defended legal actions from the phonographic industry by claiming that free file trading via its website stimulated rather than harmed sales of legitimate recordings. The courts did not agree: Napster was ordered to pay composers and copyright owners a $26m settlement for unauthorised use of their music and went out of business shortly afterwards.

Does YouTube face the same fate? "Google is trying to take a moral stance," says Rachel Bunn, intellectual property partner at the Waterfront legal partnership. "But there is no public-interest defence against copyright theft. If Viacom is right that 160,000 clips have been used, no court in the UK would deny that was illegal." She denies that You- Tube's conduct has moral value: "If you take away copyright protection, what is the point of creating in the first place?"

Mr Forbes says the case is not that clear-cut: "I very much doubt Google has gone into this without thought." The company is likely to argue that the YouTube model attracts users to films and programmes they would not otherwise know about, helps broadcasters to gauge what works, and builds fan bases.

A spokesman says: "In 2006 Google shared $3.3m with its online partners. This is a very generous company." This figure does not refer to payments for use of online video, but insiders insist that YouTube's free-to-the-user approach can eventually be profitable for copyright owners too, as online advertising generates enough income to permit large- scale revenue-sharing.

Perhaps, but it is hard to see how that can reward the creativity of individual film-makers, writers and photographers in the way that media companies that respect copyright do. Free film, text and picture sharing appeals to people who use the internet to socialise - without thinking about how content is created. To creative individuals, and companies that buy their work for fair return, it is a dire threat.

Quality content is not free; it is the result of hard work. If copyright is abused online, the end result will be fewer excellent columns, films, investigations and pictures.

MEDIA DIARY

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