Microsoft, EA Among Viacom’s Supporters in YouTube Appeal

Microsoft and Electronic Arts filed a joint brief supporting Viacom’s case against YouTube at the 2nd U.S. Circuit Court of Appeals in New York, one of several briefs from Viacom supporters that came in Friday just before a deadline that day. A group of music publishers including BMI, ASCAP and SESAC, a group of book publishers, plus labor unions including the Directors Guild, Screen Actors Guild and American Federation of TV and Radio Artists also lodged their arguments against YouTube on Friday. Several scholars, economists and law professors chimed in on Viacom’s side. Counsel for YouTube asked the court for a March 31 deadline for briefs from the company and allies. YouTube’s owner, Google, didn’t immediately respond to a request for comment.

Copyright-infringing material on YouTube led to the site’s popularity and success at the expense of competing video sharing sites that followed the law, Microsoft and EA said. When Microsoft introduced its video sharing site Soapbox, it too saw many infringing videos being uploaded and heard about them from content owners, the brief said. “But unlike YouTube, Microsoft was determined to act responsibly and address those concerns,” and it temporarily shut down the site in 2007 to improve copyright protections, the filing said. It said YouTube’s competition “was unable to compete with YouTube given the incredible momentum created by its illicit business strategy."

Technology exists to screen out infringing content from video sharing sites, said Vobile, which makes a system to do that. “Website operators acting as publishers have used Vobile’s automated technology to screen tens of thousands of videos every day which users are seeking to upload,” it said. “In deciding the issues in this case, the Court may consider whether website operators … are remiss in not using such technology to screen videos before they allow them to be posted."

The U.S. district judge’s opinion in the case “has perversely turned the Digital Millennium Copyright Act into a roadmap to build a business based on massive use of copyrighted works without paying for them,” BMI, ASCAP, SESAC and other music publishers said in their amicus brief. That has led content owners’ loss of control over their works and has limited their ability to license them, they said. Another group of publishers that include newspapers, the National Football League, some broadcasters and the Associated Press made similar arguments. “At stake is nothing less than the ability of copyright owners to enforce their copyrights on the Internet against entities that rely on copyright infringement as a business model,” they said.

If the lower court’s decision stands, content owners would have little ability to enforce their rights against “even the most flagrant forms of piracy on the Internet,” the publishers said. Sites consciously built on infringement would get a “broad legal shield of immunity” if the appeals court upholds the district court’s opinion, they said.