Richard Waters YouTube emails are a plaintiff’s best friend

The latest round in the heavyweight Viacom v YouTube slugfest has clearly gone to Viacom.

Google fought to keep evidence filed in Viacom’s copyright infringement case sealed, but failed. The full gory details were on display on Thursday. This is Viacom’s application for summary judgment in the case, and this is Google’s version of events.

The result is death by a thousand quotes – the inevitable result of selective quotation from stacks of YouTube emails unearthed during legal discovery (all the email written by co-founder Chad Hurley was said to have been lost, but his replies to his associates are on record). My colleague Ken Li has been combing through the documents. Some highlights after the jump.

Steve Chen to YouTube co-founder 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.” (Link to full email, 19 July 2005)

Chen to Karim: “why don’t we put up i just put up 20 videos of pornography and obviously copyrighted materials and then link them from the front page. what were you thinking.” (Email, 19 July 2005)

Email exchange between Chen and co-founder Chad Hurley about competing with content on rival video websites:

Chen: “steal it!”

Hurley: “hmm, steal the movies?”

Chen: “We have to keep in mind that we need to attract traffic. how much traffic will we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type… viral videos will tend to be THOSE types of videos.” (Emails, 29 July 2005)

Hurley to his co-founders: “aaahhhh, the site is starting to get out of control with copyrighted material… we are becoming another big-boys or stupidvideos.” (3 September 2005)

Among other revealing details: Google’s own analysis of the material on YouTube when it was considering buying the company in 2006 classed 63 per cent of the videos as “premium/ removed”. This meant that the content was “copyright (either in whole or substantial part)” or “removed (and) taken down”. (

For its part, Google’s defence rests heavily on the argument that it would have had to know that Viacom’s copyrighted material was posted in an unauthorised way for it to have a responsibility to remove it. According to its version of events, Viacom deliberately “roughed up” some of the videos it put on YouTube to make them look like they came from users and give them a more “viral” feel, and couldn’t even identify for itself which clips were authorised and which weren’t – so how could YouTube be expected to police them?

It also hinted heavily that Viacom’s legal campaign was motivated by the failure of its own bid to buy YouTube.

With a stack of email evidence now on the public record, though, it will be the YouTube co-founders’ ill-considered comments that will resonate the longest.

Update: Not surprisingly, Google and YouTube disagree strongly with my assessment here.

They claim that Viacom companies posted “thousands” of clips to YouTube, and disguised many of them to make them look like they were from individual fans.

Those methods included: hiring “an army of marketing agents” to upload clips on Viacom’s behalf; using account names that had no link to the companies (like “MysticalGirl8″ and “GossipGirl40″); uploading clips from computers at the Kinko’s office supply store and other locations that couldn’t be traced back to Viacom; and altering video to make it appear stolen. (See pages 41 onwards of the Google legal brief.)

The origins of some of the clips were so well disguised that even Viacom’s lawyers couldn’t distinguish the authorised from the unauthorised, and included some of the former in their copyright infringement claims. According to YouTube, this means it could not be held to have had so-called “red flag” knowledge of infringement (that is, enough evidence of apparent wrongdoing that it had an obligation to act.)

In my view, Viacom’s evidence suggesting YouTube’s founders knew of widespread copyright violations on the site outweighs this. You be the judge.