Undisputed Fiction Or Viacom's Smoking Gun? Early Emails Between YouTube's Founders

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We’re still poring over the hundreds of pages of documents that were just released in the YouTube/Viacom litigation. One document that offers extensive insight into YouTube’s early operations is Viacom’s Statement of Undisputed Facts, which contains quite a few emails from the site’s three founders: Steve Chen, Chad Hurley, and Jawed Karim (sometimes referred to as YouTube’s ‘forgotten’ founder). For what it’s worth, YouTube dispels the notion that these were really undisputed; a YouTube spokesperson said “This statement of undisputed facts is a statement of undisputed fiction.”

One of YouTube’s defenses in this case is that it has virtually no way to tell if a piece of content has been uploaded with the authorization of its owner. Which is true — Viacom has even admitted that it requested that YouTube remove many of the videos that its own personnel had uploaded. Because of the DMCA, YouTube was allowed to keep this potentially infringing content online provided it responded in a timely manner to takedown requests.

But these Emails, at least as presented by Viacom, don’t make it sound like YouTube’s founders and employees were necessarily worried about depriving content owners of videos they may have rightfully uploaded. Sometimes, it sounds like they’re pretty sure that they weren’t authorized, and were just relying on the fact that they didn’t have to do anything until they received a takedown notice. Instead, they were worried about prematurely cutting off the bulk of their traffic.

There’s some talk of creating the perception that YouTube was concerned with patrolling such content. In one memorandum, Jawed Karim told YouTube’s Board of Directors that the 10-minute length restriction the site was imposing would “reinforce the official line that YouTube is not in the business of hosting full-length television shows”, but that it “probably won’t cut down the actual amount of illegal content uploaded” because users could easily split shows in half or upload the “Juiciest bits of television shows”. Which begs the question, what was the point? Also, note that he refers to it as “the official line”.

Of course, YouTube says this is all “undisputed fiction”, and they’ll probably argue that the quotes were taken out of context (and they may well have been). If YouTube did follow the DMCA to the letter of the law (regardless of their underlying motivation), they may not have much bearing on the case.  And there’s also the fact that Viacom is being hypocritical with all of this, because it too offered user-generated video sites that relied on the DMCA, and it uploaded many videos to YouTube itself.

But it makes for some very interesting reading.

Here are from some of those early Emails and IM conversations (you can find the full document here:

On July 4,2005, YouTube co-founder Chad Hurley sent an email to YouTube co-founders
Steve Chen and Jawed Karim titled “budlight commercials,” stating “we need to reject these
too”; Steve Chen responded by asking to “leave these in a bit longer? another week or two can’t hurt;” Jawed Karim subsequently stated that he “added back all 28 bud videos. stupid. . .,” and Steve Chen replìed: “okay the video they upload, first, regardless of people are going to be telling people about the site, therefore making it viral. they’re going to drive traffic. second, it adds more content to the site. third, we’re going to be adding advertisements in the future so this gets them used to it. I’m asking for a couple more weeks.”

In a July 10, 2005 email to YouTube co-founders Chad Hurley and Steve Chen,YouTube co-founder Jawed Karim reported that he had found a “copyright video” and stated: “Ordinarily I’d say reject it, but I agree with Steve, let’s ease up on our strict policies for now. So let’s just leave copyrighted stuff there if it’ s news clips. I still think we should reject some other (C) things tho. . .”; Chad Hurley replied, “ok man, save your meal money for some lawsuits! ;) no really, I guess we’ll just see what happens.”

In a July 19, 2005 email to YouTube co-founders Chad Hurley and Jawed Karim, YouTube co founder Steve Chen wrote: “jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we the co-founders is didn’t put it up when one of blatantly stealing content from other sites and trying to get everyone to see it.”

In a July 23, 2005 email to YouTube co- founders Steve Chen and Jawed Karim, YouTube cofounder Chad Hurley responded to a YouTube link sent by Jawed Karim by saying: “if we reject this, we need to reject all the other copyrighted ones. . . . should we just develop a flagging system for a future push?”; Karim responded: “I say we reject this one, but not the other ones. This one is totally blatant.”

In an August 9, 2005 email to YouTube co-founders Steve Chen and Jawed Karim, YouTube co-founder Chad Hurley stated: “we need to start being diligent about rejecting copyrighted/inappropriate content. we are getting serious traffic and attention now, I don’t want this to be killed by a potentially bad experience of a network exec or someone visiting us. like there is a cnn clip of the shuttle clip on the site today, if the boys from Turner would come to the site, they might be pissed? these guys are the ones that will buy us for big money, so lets make them happy. we can then roll a lot of this work into a flagging system soon.”

On August 10,2005, YouTube co-founder Jawed Karim responded to YouTube co-
founder Chad Hurley (see SUF i1 (previous para)): “lets remove stuff like movies/tv shows. lets keep short news clips for now. we can become stricter over time, just not overnight. like the CNN space shuttle clip, I like. we can remove it once we’re bigger and better known, but for now that clip is fine.” Steve Chen replied, “sounds good.”

In response to YouTube co-founder Chad Hurley’s August 9, 2005 email (see SUF i146) YouTube co-founder Steve Chen stated: “but we should just keep that stuff on the site. I really don’t see what wì1 happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down”; Chad Hurley replied: I just don’t want to create a bad vibe… and perhaps give the users or the press something bad to write about.”

In a September 1, 2005 email to YouTube co-founder Steve Chen and all YouTube
employees, YouTube co-founder Jawed Karim stated, “well, we SHOULD take down any: 1)movies 2) TV shows. we should KEEP: 1)news clips 2) comedy clips (Conan, Leno, etc) 3) music videos. In the future, I’d also reject these last three but not yet.”

On September 2,2005, in response to an email from YouTube co-founder Chad Hurley reporting that he had taken down clips of the TV show “Family Guy,” YouTube co-founder Steve Chen stated: “should we just assume that a user uploading content really owns the content and is agreeing to all the terms of use? so we don’t take down anything other than obscene stuff?”

In a September 3,2005 email responding to YouTube co-founder Chad Hurley’s concern
that “the site is starting to get out of control with copyrighted material” (see SUF i154),
YouTube co-founder Steve Chen stated to the other two YouTube co- founders that, “what’s
the difference between big-boys/stupidvideos vs youtube? . . . if you look at the top videos
on the site, it’s all from this type of content. in a way, if you remove the potential
copyright infringements, wouldn’t you still say these are ‘personal’ videos? if you define
‘personal’ to be videos on your personal harddrive that you want to upload and share with
people? anyway, if site traffic and viralìty will drop to maybe what it is. . . i’d hate to prematurely 20% of attack a problem and end up just losing growth due to it.”

In response (see SUF i155), YouTube co-founder Jawed Karim wrote: “well I’d just remove the obviously copyright infringing stuff. movies and tv shows, I’d get rid of. . . .leave music videos, news clips, and clips we’ll of comedy shows for now. I think thats a pretty good policy for now, no?”

In a September 3,2005 email to the two other YouTube co- founders, YouTube co-founder
Steve Chen responded to Jawed Karim’s suggestion that YouTube remove “obviously copyright infringing stuff’ (see SUF i156) by stating that “i know that if (we remove all that content. we go from 100,000 views a day down to about 20,000 views or maybe even lower. the copyright infringement stuff. i mean, we can presumably claim that we don’t know who owns the rights to that video and by uploading, the user is claiming they own that video. we’re protected by DMCA for that.we’ll take it down if we get a ‘cease and desist”‘; Jawed Karim replied: “my suggested polìcy is really lax though. . . . if we keep that polìcy I don’t think our views will decrease at alL. “

In a September 4, 2005 email to YouTube co- founder Jawed Karim and others at YouTube, a YouTube user stated: “Jawed – You have a lot of people posting Chappelle Show clips and stuff like that. Aren’t you guys worried that someone might sue you for copywrite
(sic J violation like Napster?”; Karim replìed: “ahaha.”

In a September 7, 2005 email, YouTube co-founder Steve Chen wrote to YouTube cofounders Chad Hurley and Jawed Karim, and Roelof Botha of Sequoia Capital (and later a
YouTube board member) that YouTube had “implemented a flagging system so you can flag a video as being inappropriate or copyrighted. That way, the perception is that we are concerned about this type of material and we’re actively monitoring it. The actual removal of this content will be in varying degrees. We may want to keep some of the borderline content on the site but just remove it from the browse/search pages. that way, you can’t find the content easily. Again, similar to Flickr, . . . you can find truckloads of adult and copyrighted content. It’s just that you can’t stumble upon it, you have to be actively searching for it.”

In a January 25,2006 instant message exchange, YouTube co-founder Steve Chen
(IM user name tunawarrior) told his colleague YouTube product manager Maryrose Dunton
(IM user name maryrosedunton) that he wanted to “concentrate all of our efforts in
building up (YouTube’sJ numbers as aggressively as we can through whatever tactics, however evil,” including “user metrics” and “views,” and “then 3 months, sell it with 20m views per day and like 2m users or something. . . I think we can sell for somewhere between $250m – $500m . . . in the next 3 months. . . and there *is* a potential to get to $1 b or something.”

In a February 17,2006 instant message conversation, YouTube systems administrator Bradley Heilbrun (IM user name nurblìeh) asked YouTube product manager Maryrose Dunton (IM user name maryrosedunton), “was it me, or was the lawyer thing today a cover- your-ass thing from the company?” Dunton responded, “oh totally. . . did you hear what they were saying? it was really hardcore . . . if we even see copyrighted material on the site, as employees we’re supopsed (sic to report it”; Heilbrun replied, “sure, whatever,” and Dunton said “I guess the fact that I started like 5 groups based on copyrighted material probably isn’t so great”; in response Heilbrun said “right exactly. . . but it’s a cover your ass . . . so the board can say we told maryrose not to do this.”

In the same instant message conversation,YouTube product manager Maryrose Dunton
(IM user name maryrosedunton) reported the results of a “lìttle exercise” she performed
wherein she “went through all the most viewed/most discussed/top favorites/top rated to try and figure out what percentage is or has copyrighted materiaL. it was over 70%.” She added, “what I meant to say is after I found that 70%, I went and flagged it all for review.” When deposed, YouTube product manager Maryrose Dunton confirmed in reference to the February 28,2006 instant message exchange with YouTube co-founder Steve Chen (see SUF i195) that she was being sarcastic and did not actually flag any of the copyrighted videos for review.

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