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July 09, 2008


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Chris Newman

I don’t understand why there is any doubt that Viacom needs to take this discovery in order to prosecute its lawsuit. In order to prove secondary liability it has to prove that there is direct infringement to which YouTube is contributing. You can be sure that YouTube is going to take the position that in order to prove direct infringement, Viacom has to identify specific infringing acts. Further, YouTube has asserted in its Second Affirmative Defense that "Plaintiffs' claims are barred in whole or part by licenses, express and implied, granted or authorized to be granted by Plaintiffs." It would seem difficult to evaluate the claim that Viacom granted licenses to users without knowing who those users are and what they were doing. Similarly, in order to evaluate YouTube’s fair use defense, don’t we have to look at the contents of each allegedly infringing video clip to see whether it qualifies as a fair use of the copyrighted material? And might the fair use analysis for a given clip not also turn in part on how many times the clip is viewed? I imagine Viacom would be happy to forego the exercise of identifying users and specific viewings if YouTube were to make some stipulations that rendered the info moot. I don’t see it happening, though. If I were representing YouTube I’d be doing my best to hold Viacom’s feet to the fire on these individualized issues, in part with the goal of defeating class certification. The fact that Viacom winds up looking like a privacy bully in seeking the info it needs is gravy, letting YouTube have it both ways: Viacom can’t prove its claims without personalized info, and can’t get that info because it violates privacy.


dont shut down youtube please

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