Mark Zanzig/zettpress
Since 2007, there has been a lawsuit going on between Viacom and Youtube for massive copyright infringement on Youtube’s side.
The lawsuit is incredibly important for the future of the web, especially whether and how social networking sites (like Youtube, Flickr, Facebook, and Myspace, to name just a few) may be held responsible for the content uploaded by their users. While copyright infringements in the photography industry usually do not get the same attention as videos and music, the court ruling in this case will affect our business as well.
Now here’s the good stuff: Yesterday the parties were forced to present their evidence, and boy! There is some really dirty laundry on the table now. Go read Viacom’s Statement of Undisputed Facts and and you can easily see that Youtube’s founders knew exactly what they were doing, right from the early days of the site, dating back to even before the Google acquisition.
For example:
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 replied: “okay first, regardless of the video they upload, 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.”
So, “another week or two can’t hurt”? Sure, it’s not your copyright being violated, mate. And being the visionaires they undoubtedly are, they seemed to see it all coming:
In a July 10, 2005 email to YouTube cofounders 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.”
And later that day, YouTube co-founder Chad Hurley wrote:
“yup, we need views. I’m a little concerned with the recent supreme court ruling on copyrighted material though.”
A little concerned, eh? No surprise to me, because they were putting copyright protected stuff on the site themselves:
In a July 19, 2005 email to YouTube cofounders 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 didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”
Time dragged on, and the Youtubers were alerted that they were entering dangerous grounds indeed. Yet, they made clear decisions as to what copyright protected clips they remove from the site:
In a September 1, 2005 email to YouTube cofounder 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.”
But it all went out of control, because only two days later, Chad Hurley wrote to his co-founders a mail with the subject line “copyrighted material!!!”:
“aaahhhhh, the site is starting to get out of control with copyrighted material… we are becoming another big-boys or stupidvideos.”
The same day they realized that their problem was really the most popular content being copyright protected stuff. Youtube co-founder Steve Chen estimated the traffic portion from copyright protected works to be 80%, in other words: the overwhelming majority:
“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 hard drive that you want to upload and share with people? anyway, if we do remove that stuff, site traffic and virality will drop to maybe 20% of what it is… i’d hate to prematurely attack a problem and end up just losing growth due to it.”
Other mails and conversations confirm Chen’s estimate later, in 2006. But then, the hubris of the founders had already set in. They were just laughing at copyright holders:
In a September 4, 2005 email to YouTube cofounder 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] violation like Napster?”; Karim replied: “ahaha.”
And when it came to the acquisition by Google, it becomes apparent that Google knew exactly what they were dealing with:
In a May 10, 2006 email to Google executive Patrick Walker, Google Video business product manager Ethan Anderson stated: “I can’t believe you’re recommending buying YouTube…. they’re 80% illegal pirated content”
May 2006 must have been a busy month for the video guys at Google. In a mail dated May 12, 2006, Google vice president of content partnerships (David Eun) stated, regarding YouTube:
[A] “large part of their traffic is from pirated content. When we compare our traffic numbers to theirs, we should acknowledge that we are comparing our ‘legal traffic’ to their mix of traffic from legal and illegal content. One senior media executive told me they are monitoring YouTube very closely and referred to them as a ‘Video Grokster.’”
And when it came to the due diligence prior to the acquisition of the company, Youtube dropped their pants and provided random video samples:
Google’s analysis of the random sample of YouTube videos determined that 63% of the videos on YouTube were “Premium/removed,” meaning that the content was “copyright (either in whole or substantial part)” or “removed [and] taken down.”
On and on it goes. 86 pages uncovering the inner workings of one of the most successful websites ever. Their success had been built mainly on copyright protected content on their site. All this falls into the category “you couldn’t make this up”, and it is essential reading for anyone with a remote interest in copyright. Just reading the email excerpts comes close to a Crichton thriller!
Needless to say, I think Youtube is toast.
More commentary at Arstechnica, The Hollywood Reporter, and The Register.
Here are the four original documents:
- Viacom’s Memorandum
- Viacom’s Statement of Undisputed Facts
- Youtube’s Memorandum
- Youtube’s Statement of Undisputed Facts
Note: It seems that Viacom are not as innocent as they claim to be, according to CNet and Business Insider. Gosh, that’s quite a pile of dirty laundry, really.
