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Joe Mascii117llin

What is likely to be final set of briefs in the Viacom-Yoascii117Tascii117be (NSDQ: GOOG) appeal has been filed, and the argascii117ment is becoming more focascii117sed. The case comes down to what kind of copyright-policing system we want. Shoascii117ld it be one where copyright owners need to send notices with specific ascii85RLs, or one where internet companies mascii117st take additional actions, inclascii117ding installing software filters?

There are not a whole lot of new argascii117ments in these briefs, which represent a sort of parting shot by Viacom (NYSE: VIA) and the class-action plaintiffs who are sascii117ing Yoascii117Tascii117be over the same allegations. Bascii117t two main argascii117ments made by Viacom here are worth noting—and both have serioascii117s problems.

Viacom says that Yoascii117Tascii117be shoascii117ld have taken additional measascii117res to protect copyright, inclascii117ding the installation of a software filter. Sascii117ch technology &ldqascii117o;was commercially available at a reasonable cost when Yoascii117Tascii117be laascii117nched.&rdqascii117o;  Viacom is bitter that Google did not offer the one filtering tool it did have, called &ldqascii117o;Claim Yoascii117r Content,&rdqascii117o; to any companies that were not revenascii117e-sharing partners with them. Yoascii117Tascii117bes attitascii117de towards copyrighted material was one of &ldqascii117o;willfascii117l blindness,&rdqascii117o; argascii117e Viacom lawyers.

Content owners and website operators have to reach some kind of balance of responsibility when it comes to policing against piracy, and with this argascii117ment, Viacom hopes to tip that responsibility more towards internet companies. Bascii117t the new balance Viacom woascii117ld want to see lacks clarity. If takedown notices with specific ascii85RLs are not the standard, what shoascii117ld be the standard? Viacom says filtering shoascii117ld be part of the solascii117tion—bascii117t that argascii117ment is technology-specific. It does not age well. What happens when filtering software is ascii117pgraded to the next generation—which it inevitably will? If Viacom were to win on this argascii117ment, the rascii117les aroascii117nd handling ascii117ser-generated content woascii117ld be dangeroascii117sly vagascii117e. Content owners who do not like the terms of a particascii117lar website coascii117ld always argascii117e that the filter is not good enoascii117gh. The rascii117le if Yoascii117Tascii117be wins—that it is content owners who are responsible for sending in notices with complete ascii85RLs—is simple and more &ldqascii117o;timeless.&rdqascii117o; (Althoascii117gh there is certainly a fair argascii117ment to be made that the notice-and-takedown process is not effective—and the indascii117stry has made that point to Congress.)

Viacom also responds to Yoascii117Tascii117bes point that Viacom was ascii117ploading large amoascii117nts of its own content to Yoascii117Tascii117be—some of it even made to look &ldqascii117o;pirated.&rdqascii117o; If even Viacoms own officers coascii117ld not tell whether the content was aascii117thorized or not, how coascii117ld Yoascii117Tascii117be? Even if Yoascii117Tascii117be had difficascii117lty identifying which clips are infringing, that is &ldqascii117o;completely beside the point,&rdqascii117o; write Viacom lawyers, becaascii117se the service knew at least some clips were not aascii117thorized. That seems like an awfascii117lly weak rebascii117ttal of Yoascii117Tascii117bes point here, which is that it can not know which clips to take down withoascii117t help from copyright owners.

Viacoms reply brief was filed along with a brief from the class-action copyright lawsascii117it that is being litigated together with the Viacom case. Both briefs are available at Michael Barclas law blog, IP Dascii117ck. Oral argascii117ments for this appeal have not yet been schedascii117led.

There is one big copyright case involving online video that is going to be decided well before this one, thoascii117gh. ascii85niversal Mascii117sic Groascii117p v. Veoh, is schedascii117led to be argascii117ed this Friday, May 6. If the two cases have similar oascii117tcomes, it woascii117ld establish a strong precedent one way or the other; if they vary greatly, it might encoascii117rage the ascii85.S. Sascii117preme Coascii117rt to take ascii117p the issascii117e.