Earlier today, several previously sealed legal documents in the longstanding copyright infringement lawsuit against YouTube by Viacom were made public. In conjunction with the public release of those documents, YouTube’s chief counsel Zahavah Levine wrote a blog post which reads more like a summary of a legal brief.
In it, Levine outlines YouTube’s main defense against Viacom’s allegations, including the fact that Viacom “secretly uploaded its content to YouTube, even while publicly complaining about its presence there.” Levine also notes that “Viacom tried repeatedly to buy YouTube,” suggesting that the current $1 billion lawsuit is its attempt to cash in on YouTube years after the fact.
Here is the key passage from the blog post:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
In other words, while Viacom’s lawyers were issuing takedown notices, its marketers were putting clips up on YouTube to promote Viacom movies and TV shows. You’ve got to wonder what the judge will make of that evidence.