A federal judge recently gave us some fascinating reading when he ordered the release of documents in Viacom’s $1 billion lawsuit against YouTube, now owned by Google. Viacom has alleged that YouTube violated its copyrights on over 100,000 clips, including those of its most popular shows like South Park and The Daily Show.
The emails, obtained by Viacom as part of the litigation discovery process, reveal more than indifference to copyright, or simply looking the other way. Indeed, they chronicle a race to the bank by the YouTube founders who sought to build their user base by offering copyrighted material, in order to sell the company before the scope of what they were doing became apparent.
Even more remarkably, Google executives were among the few people outside of YouTube who fully understood that YouTube’s success was based primarily on copyrighted material. But they went ahead and bought YouTube anyway in October 2006 for $1.65 billion, and retained YouTube’s lax standards governing copyright.
The emails confirm what NLPC demonstrated about Google’s attitude toward copyright. In July 2007, we identified hundreds of full-length movies on Google Video, and published a “Top 50” list. Click here to download a 14-page pdf containing screen shots from fifty full-length movies that were on Google Video at that time.
Under the terms of the Digital Millennium Copyright Act (DMCA), a hosting site like YouTube is not liable for copyright infringements if it does not know about them. Its only obligation is to take down the offending material when it is made aware of it.
The emails drip with cynicism about DMCA, and offer example after example of the law’s deliberate circumvention. The YouTube founders come off not as the young geniuses portrayed in the media, but as clumsy and somewhat harried schemers.
Check out this July 19, 2005 email from YouTube co-founder Steve Chen to his fellow YouTube co-founders Chad Hurley and Jawed Karim:
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.
In a July 29, 2005 email, Chen wrote to Hurley and Karim about a movie on a competing video site. He advised:
hmm, steal the movies?
we have to keep in mind that we need to attract traffic. how much traffic wì1 we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type. . . .viral videos wì1 tend to be THOSE type of videos.
In a September 3, 2005 email to the two other co-founders with the subject line “copyrighted material! ! !”, Hurley wrote:
aaahhhhh, the site is starting to get out of control with copyrighted materiaL. .. we are becoming another big-boys or stupidvideos.
In a September 4, 2005 email to Karim and others, a user asked:
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?
If all this is not strong enough, consider a March 15, 2006 instant message from YouTube engineer Matt Rizzo to product manager Maryrose Dunton in which he refers to copyright owners:
just how much time do you guys want to give to these f—— a——
hah. Not any time really
In response to the controversy, YouTube gave users to opportunity to flag copyrighted material, but it didn’t last long. On September 23, 2005, Hurley emailed Chen and Karim:
can we remove the flagging link for ‘copyrighted’ today? we are starting to see complaints for this and basically if we don’t remove them we could be held lìable for being served a notice. it’s actually better if we don’t have the link there at all because then the copyright holder is responsible for serving us notice of the material and not the users. anyways, it would be good if we could remove this asap.
The co-founder’s motivation for all the “stealing” is evident. In a January 25, 2006 instant message exchange, Chen told Dunton that he wanted to:
concentrate all of our efforts in building up (YouTube’s) numbers as aggressively as we can through whatever tactics, however evil…and then 3 months, sell it with 20m views per day and like 2m users or something. . . I think we can sell for somewhere between $250m – $500m . . . in the next 3 months. . . and there *is* a potential to get to $1 b or something.
In an April 23, 2005 email to Chen and Hurley, Karim wrote:
It’s all ’bout da videos, yo. We’ll be an excellent acquisition target once we’re huge.
On August 11, 2005, the co-founders were actually captured on outside the Palo Alto offices of Sequoia Capital from whom they successfully sought an investment. Karim asked the other two:
At what point would we tell them our dirty lìttle secret, which is that we actually just want to sell out quickly.
Of course, every seller requires a buyer. The emails show that Google was quite aware of what it was buying. As part of its due diligence, Google analyzed a random sample of YouTube videos, and determined that 63% were copyrighted or had to be taken down.
In a May 12, 2006 email, Google vice president of content partnerships David Eun wrote about 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 traffc’ to their mix of traffc from legal and ìlegal content. One senior media executive told me they are monitoring YouTube very closely and referred to them as a ‘Video Grokster.’
0n June 17, 2006, Google Video business manager Ethan Anderson sent Google executive Patrick Walker an email listing the “Top 10 reasons why we shouldn’t stop screening for copyright violations,” including:
1. It crosses the threshold of Don’t be Evil to facilitate distribution of the other people’s intellectual property, and possibly even allowing monetization of it by somebody who doesn’t own the copyright.
2. Just growing any traffic is a bad idea. This polìcy wì1 drive us to build a giant index of pseudo porn, lady punches, and copyrighted material. . .”
3. We should be able to win on features, a better (user interface) technology, advertising
relationships – not just polìcy. It’s a cop out to resort to dist-rob-ution.
7. It makes it more difficult to do content deals with you have an index of pirated material.
The emails show a vigorous internal debate at Google, which included Google CEO Eric Schmidt and founder Sergey Brin, about YouTube’s copyright policy. In the end, Google adopted YouTube’s policy of allowing substantially all infringing video to remain freely available.