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Page 6 of 11
VI. Viacom's Complaint
A couple of sections of the complaint provide an interesting snapshot of Viacom's allegations against YouTube. The following are paragraphs one, two, four, and ten from Viacom's complaint:
1. Over the past decade, the emergence of broadband networks, Internet protocol, and inexpensive wireless network has revolutionized the way Americans inform and entertain themselves. Millions have seized the opportunities digital technology provides to obtain creative works and to express themselves creatively. Entrepreneurs have made fortunes providing the networks, the tools and the creative works that have fueled this revolution. But these same innovations have also been misused to fuel an explosion of copyright infringement by exploiting the inexpensive duplication and distribution made possible by digital technology. Some entities, rather than taking the lawful path of building businesses that respect intellectual property rights on the Internet, have sought their fortunes by brazenly exploiting the infringing potential of digital technology. 2. YouTube is one such entity. YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America's creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube's benefit without payment or license. YouTube's brazen disregard of the intellectual property laws fundamentally threatens not just Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy. . . . .4. Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site. . . . .10. Defendants' infringement has harmed and continues to harm the interests of authors, songwriters, directors, producers, performers, and many other creators. If left unchecked, rampant infringement will gravely undermine Plaintiffs and other companies that generate creative works, and will threaten the livelihoods of those who work in and depend upon these companies. Plaintiffs therefore have no choice but to seek immediate redress. Plaintiffs seek a declaration that Defendants' conduct willfully infringes Plaintiffs' copyrights, a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights, and statutory damages for Defendants' past and present willful infringement, or actual damages plus profits, of at least one billion dollars.
That's a lot of rhetoric. Much of Viacom's language is inflammatory, such as its use of words like “brazen” and “willful infringement.”
In the subsequent counts of the complaint, Viacom specifies its legal theories, pointing in particular to § 106 of the Copyright Act.
There are six counts. Count one alleges that YouTube is publicly performing works that are owned by Viacom.
Count two claims that YouTube is publicly displaying Viacom's works.
This count is interesting because of the technical difference between a performance and a display. The Copyright Act provides that, “[t]o 'perform' a work . . . in the case of a motion picture or other audiovisual work, [means] to show its images in any sequence or to make the sounds accompanying it audible.”
There is no question that the sequential showing of movement involved with video constitutes a “performance.”
The allegation of public display is interesting because public display typically occurs through a showing of an individual photograph. The Copyright Act states: “To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.”
In count three, Viacom argues there must have been a reproduction because YouTube itself reproduces or copies the videos.
These three counts allege direct infringement: reproduction, public display, and public performance.
The next three counts are a little more sophisticated. Claim four alleges YouTube also induces infringement,
leading others on and enticing individual users to infringe.
Viacom also claims contributory infringement.
Under this theory, the way YouTube has set up its website contributes to individuals'-the public's-infringement. Here, Viacom claims that because of YouTube, the millions of Internet users who are making copies, downloading, or watching videos are infringing.
Finally, Viacom alleges vicarious infringement, a concept similar to vicarious liability.
Viacom claims that YouTube enabling millions of its users to watch videos is essentially the same as YouTube watching all these videos independently, thereby infringing Viacom's copyright.
Overall, of Viacom's six counts, three involve direct infringement and three are indirect infringement by way of inducement, contributory infringement, and vicarious infringement.
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