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By LARRY NEUMEISTER, Associated Press Writer

NEW YORK – A $1 billion copyright infringement lawsuit challenging YouTube’s ability to keep copyrighted material off its popular video-sharing site threatens how hundreds of millions of people exchange all kinds of information on the Internet, YouTube owner Google Inc. said.

Google’s lawyers made the claim in papers filed in U.S. District Court in Manhattan as the company responded to Viacom Inc.’s latest lawsuit alleging that the Internet has led to “an explosion of copyright infringement” by YouTube and others.

The back-and-forth between the companies has intensified since Viacom brought its lawsuit last year, saying it was owed damages for the unauthorized viewing of its programming from MTV, Comedy Central and other networks, including such hits as “The Daily Show with Jon Stewart.”

In papers submitted to a judge late Friday, Google said YouTube “goes far beyond its legal obligations in assisting content owners to protect their works.”

It said that by seeking to make carriers and hosting providers liable for Internet communications, Viacom “threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression.”

Google said YouTube was faithful to the requirements of the 1998 Digital Millennium Copyright Act, saying the federal law was intended to protect companies like YouTube as long as they responded properly to content owners’ claims of infringement.

On that score, Viacom says Google has set a terrible example.

In a rewritten lawsuit filed last month, Viacom said YouTube consistently allows unauthorized copies of popular television programming and movies to be posted on its Web site and viewed tens of thousands of times.

Viacom said it had identified more than 150,000 unauthorized clips of copyrighted programming — including “SpongeBob SquarePants,” “South Park” and “MTV Unplugged” episodes and the documentary “An Inconvenient Truth” — that had been viewed “an astounding 1.5 billion times.”

The company said its count of unauthorized clips represents only a fraction of the content on YouTube that violates its copyrights.

It said Google and YouTube had done “little or nothing” to stop infringement.

“To the contrary, the availability on the YouTube site of a vast library of the copyrighted works of plaintiffs and others is the cornerstone of defendants’ business plan,” Viacom said.

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Internet law professor Michael Geist examines the shift from locking down content to locking down the network.

A padlock and key

ISPs are increasingly adding content filtering software to their networks

As digital technologies and the Internet began to emerge in the mid-1990s, many content companies responded by betting on the ability of technological protection measures to re-assert the control that was rapidly slipping from their grasp.

The vision of control through technology required considerable coordination – the insertion of encryption on content distributed to consumers, cooperation from electronics makers to respect the technological limitations within their products, and new legal provisions to prohibit attempts to pick the new digital locks.

A decade later, the strategy lies in tatters. Many content owners have dropped digital locks after alienating disgruntled consumers fed up with their inability to freely use their personal property.

Electronics manufacturers have similarly rebelled, frustrated at the imposition of artificial limitations that constrain their products and profitability.

To top it off, the US architect of the legal strategy last year acknowledged that the legislative initiatives to support the digital lock approach have failed.

Network police

Prof Michael Geist (Michael Geist)
Large US ISPs such as AT&T have inexplicably promised to develop new content filters on their networks.
Michael Geist

In recent months, a new strategy has begun to emerge. With the industry gradually admitting that locking down content does not work, it has now dangerously shifted toward locking down the Internet.

The Internet locks approach envisions requiring Internet service providers to install filtering and content monitoring technologies within their networks.

ISPs would then become private network police, actively monitoring for content that might infringe copyright and stopping it from reaching subscribers’ computers.

The support for locking down the Internet revives an old debate – the appropriate role and responsibility of ISPs for the activities that take place on their networks.

French filtering

Nicolas Sarkozy, French president

French president has plans for country-wide ISP filtering

As the content owners were promoting legal protection for digital locks in the 1990s, the ISPs were supporting legal frameworks that treated them as the equivalent of common carriers that transferred data across their networks without regard for the content itself.

While that approach ensured that ISPs did not take an active role in monitoring or filtering Internet-based activity, the recent move toward a two-tiered Internet – one in which the ISPs themselves dream of distinguishing between different content as a new revenue source – revived the notion that ISPs could be called upon to play a more active role in monitoring and blocking content.

With content owners frustrated at the failure of digital locks, last year they seized on this by renewing their focus on the role of the ISP. This movement has been most prominent in Europe, where last summer a Belgian court ordered an ISP to block access to a site alleged to contain copyright infringing materials.

More recently, French President Nicolas Sarkozy unveiled a plan that would mandate country-wide ISP filtering of copyright infringing content.

Although a similar pan-European proposal was defeated earlier this month, few believe that the issue is dead, particularly given the International Federation of the Phonographic Industry’s claim last Thursday that 2008 will be the year of greater ISP responsibility.

Content filtering plans have also begun to emerge in North America. Large US ISPs such as AT&T have inexplicably promised to develop new content filters on their networks and are discussing an implementation plan with content owners.

In Canada, some cultural groups are openly eyeing content filters as a mechanism to adapt Canadian content rules to the online environment, while others have expressed strong support for legal rules that force ISPs to accept heightened “responsibility” for the conduct of their subscribers.

In light of this pressure, some fear that mandatory content blocking could sneak into domestic legislation, despite the likelihood that such laws would face free speech challenges and run the risk of creating a locked-down, censored Internet.


Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at http://www.michaelgeist.ca.

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