Will the Viacom vs. Google Lawsuit Revisit the Grokster Decision?
March 14, 2007 – 7:40 pmThe lawsuit filled by Viacom is going to be an interesting one to watch. I think it might end up revisiting, and hopefully clarifying the Grokster decision. It’s basically the same set of facts; Google operates a service that has a significant amount of non-infringing uses. However, it also has a significant amount of infringing uses and, arguably, Google is well aware of it.
There are two differences that I think will be interesting. First, Google (and YouTube) have always had, and followed, a procedure for the removal of infringing content on complaint of the copyright holder. They are going to argue that this shields them from liability under the DMCA safe harbour provisions. Viacom, on the other hand, doesn’t want to spend the time and money required to police Google’s site. They’d rather someone else spent the money to protect their precious content.
Now, this is going to lead to a lot of arguments about the exact limits of the DMCA safe harbour provisions. How much does a service provider have to do and what’s reasonable for them to know before they loose their shield. Mark Cuban [argues](http://www.blogmaverick.com/2007/03/13/you-go-viacom/) that Google has lost their safe harbour because they know there is lots of infringing content. But, that’s not the standard. At least, it wasn’t the standard when Sony was sued over the VCR.
Also, if Viacom wins, what does this mean for the safe harbour provision? Will it become just another defence like Fair Use? I.e., you can claim you have a DMCA safe harbour procedure that you follow, but anyone can still come along and sue you and have a reasonable chance of success. Faced with such legal uncertainty, what is a service provider to do? Also, this would open the door to people like the RIAA suing UUNET for not pro-actively stopping infringement on file sharing networks.
The second thing that makes this more interesting is that, unlike Grokster, Google is a “good client” as [EFF](http://www.eff.org/) likes to say. What I mean is that, with Grokster, it was easy to argue that they had no redeeming value and that, were the Grokster network to shut down, it wouldn’t matter that much. Google, on the other hand, is a darling of Wall Street with the stock price to match. They are well liked by everyone, not just those in the tech community. Going after them is going to be harder because Viacom isn’t going to be able to simply paint them as bad guys.
