Viacom Lawyer-in-Chief: Parallels Between Publisher Case and Ours

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UPDATE: A Google spokesman sent us the following e-mail: “Google and YouTube not only respect copyrights, we offer state-of-the-art tools that allow content owners to control . . . their content . . . We hope that Viacom will join them in taking advantage of these opportunities rather than persisting in baseless litigation.”



Yesterday, when we got news of Google’s historic $125 million settlement with the publishing industry over its book scanning efforts, we asked what impact the settlement could have in more closely-watched piece of Google litigation: The $1 billion Viacom suit.

Google’s Chief Legal Officer, David Drummond, told the WSJ, “I would not read anything into the structure,” meaning, apparently, that the publisher settlement does not signal that Google — a company never known to be litigation shy — is, all of the sudden, assuming a more conciliatory stance.



For a different take we checked in with Viacom’s general counsel, Mike Fricklas. When we asked Fricklas what he makes of the publisher settlement, he said: “It’s a business deal, not a legal decision. But a settlement is premised on where the parties think they will end up in court.” (Fricklas added that Viacom has always been willing to settle its case.)

So, viewed one way, the settlement is an acknowledgment by Google that their copyright theories in the publisher case might not have gotten them too far in court. Do they have reason to be similarly doubtful about the merits of their defense in the Viacom suit? Fricklas says the cases have similarities.

“While the cases are not precisely on the same issues, in many ways there are parallels,” Fricklas told us. “In our case, they encouraged their user community to make the copies, and they’re arguing - without much credibility - that they don’t know what’s being copied and they have no responsibility other than to take things down when people tell them to. But the fundamental similarity is that they are deriving economic benefit from infringements of others’ content, and ultimately, both in fairness and in law, they will have to obtain permission from creators in order to use and profit from it.”