Posted October 6, 2009 12:58 pm by with 0 comments

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The LawTwo and a half years is a long time for any court case. And in the case of Viacom vs. YouTube, it’s long enough for a lot of discovery and posturing. The latest round comes as anonymous Viacom sources tell CNET their evidence includes internal Google emails between employees who uploaded copyrighted videos. Even more indicting, they content the emails also say other employees, knowing the videos were violating copyright, decided to leave them up.

If this is true, this may invalidate YouTube’s defense under the Digital Millennium Copyright Act. With DMCA, site owners aren’t accountable for copyrighted content uploaded to the site if they don’t know about or have no facts about copyrighted material on the site, and once they find out, they must take it down quickly.

YouTube officials, on the other hand, point out that Viacom may be disclosing this information after recent setback to their side of the case—such as the decision in the Universal Music Group v. Veoh case two weeks ago. The judge ruled that Veoh had made adequate steps to remove copyrighted content—and, presumably, that the site owners weren’t knowingly uploading and keeping copyrighted content.

This decision looked good for YouTube, with their quick compliance with DMCA takedown orders and their Content ID filtering system—but some legal scholars say that Content ID might actually get them in trouble:

Lawyers for Viacom and the class action group are expected to argue that if YouTube was notified that a specific clip was pirated, and had the power to prevent copies from going up but did not act to remove them, the company violated the DMCA.

The plaintiffs use as evidence a paraphrased statement from Chad Hurley, YouTube’s CEO, and one of its three co-founders, which appeared in The New York Times in February 2007, the sources said.

“(Hurley) said the company was still working on its filtering technology,” the Times wrote. “He said it had agreed to use it to identify and possibly remove copyrighted material from Warner Music, and it would discuss a similar arrangement with Viacom as part of a broader deal.”

A Viacom representative said at the time, “They are saying we will only protect your content if you do a deal with us–if not, we will steal it.”

What do you think? Is this the “smoking gun” CNET says it is? Or is it just one small piece of evidence in Viacom’s favor—and who knows how much evidence they have against them?