Infringing videos on iFilm could cause problems for Viacom

Even as Viacom sues YouTube for what it describes as “brazen” copyright infringement, some of Viacom’s own dirty copyright laundry is being aired. Ars searched one Viacom property–iFilm, which was acquired by Viacom in 2005–and found several instances of infringing video hosted by iFilm–content for which Viacom does not own the copyright. In its complaint against YouTube, Viacom bemoans the fact that it is required to file DMCA takedown notices for each copyrighted clip it spots on YouTube. With over 150,000 infringing clips of Viacom properties identified so far, the company believes that YouTube should be working harder to proactively identify and remove infringing videos. Does Viacom hold its own properties to the same standard? We contacted both Viacom corporate and iFilm to ask them if they took steps to proactively identify and remove infringing videos or if they relied on copyright holders to notify them of infringing content. Some time after publication, Viacom responded with the following statement: “Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site.” A search using the term “NBA Brawl,” however, returns a number of clips of televised footage of both NBA and college football fights and it is not clear that Viacom owns the copyrights on those clips. In fact, it looks a lot like what one would find on YouTube. I talked to Greg Gabriel, a copyright attorney at Kinsella Wietzman Iser Kump & Aldisert, about the issue. He told me that if Viacom isn’t willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case. “It would have some persuasive value with a judge if YouTube says ‘look, they’re ranting and raving about all this infringement occurring on my site and they’re not doing anything about it themselves,'” said Gabriel. “YouTube is testing the limits of the DMCA and Viacom is asking them to do something that the letter of the law does not require. Viacom is really asking the judge to do something extraordinary here.” As written, the DMCA does not require any type of active monitoring on the part of site owners. What Viacom wants is for the judge to “make a new interpretation of the law,” as Gabriel describes it. The problem that Viacom will have in making its argument is that there’s no precedent for the judge to draw upon. As a result, “Viacom’s own conduct with iFilm will likely be a factor that the judge looks at,” said Gabriel. Following in the RIAA’s footsteps? Some analysts have raised the prospect of a widespread legal attack on the part of Viacom against those who upload copyrighted materials. Under the DMCA, YouTube must produce all identifying information about a user if they are presented with a subpoena. It has happened before: in January, YouTube was forced to give Fox all the information it had on users who had uploaded entire episodes of The Simpsons and 24. Last year, the video-sharing site turned over data to Paramount in another infringement case. Viacom could hit YouTube with a blizzard of subpoenas and then use the information received (e.g., e-mail address, IP address) to in turn go after ISPs to discover the identities of those who have uploaded copyrighted content and file infringement suits against them. It’s not outside the realm of possibility, but it’s extremely unlikely. No matter where one’s own opinions lie about the legality and morality of file-sharing, almost all observers agree that the RIAA’s jihad against individual file-sharers has been nothing short of a public relations nightmare. Although Viacom has demonstrated that it is willing to go beyond saber-rattling and take on another huge company in court, it’s very doubtful that it will have the stomach for a large-scale battle against its fans–even if it would provide lots of fodder for The Colbert Report.