Viacom Can't Get Punitive Damages in YouTube/Google Suit

Viacom's suit against YouTube and Google slowly works its way through the legal system. In a decision rendered last week, but only generally reported yesterday, the Federal District Court in New York hearing the case denied Viacom's motion to amend its complaint to seek punitive damages against the defendants.

The Court's reasoning: the Copyright law doesn't provide for punitive damages. Thus, the decision says nothing about the strength of Viacom's case, or the thorny issue of whether the DMCA safe harbor - the notice and takedown procedures that govern one-off infringements on websites - applies in the case of the massive infringement alleged in this suit.

Punitive damages are damages intended to punish particularly conduct by defendants that's particularly egregious, as Viacom alleges is the case here. If available, they would come in addition to actual damages (the plaintiff's actual losses) or statutory damages, which are an alternative to actual damages where it's difficult to show actual damages (or where none have occurred).

"Don't Touch My Body (of Work)!" Vivid Tells PornoTube

Vivid Video, a major adult video producer, is suing PornoTube, a YouTube knockoff, reports the LA Times. The suit alleges that Vivid's copyrighted content is available on PornoTube. Suit is conceptually similar to the Viacom suit against YouTube and Google.

The LA Times story also notes in passing that the widespread availability of free short clips on the Web hurts porn producers (whose content is often long-form) because "consumers of adult fare often get what they are looking for in clips of five minutes or less." Indeed.

Viacom, YouTube, and a NC Local Politician ...

... those are the ingredients in a bizarre copyright dispute that reads like a law school exam question.

Apparently, the politician prepared a humorous campaign video, and uploaded it to YouTube. VH1 then apparently downloaded the video from YouTube without permission and (re)broadcast it on the VH1 Web Junk 2.0 program, with the program's host appearing in the foreground adding commentary.

The candidate, pleased with the exposure, made a copy of the Web Junk clip, and uploaded that to YouTube. And, in response Viacom ordered YouTube to take down the video!

Now, remember, Viacom is already suing YouTube/Google for massive copyright violation related to all the uploading of clips from Comedy Central, VH1 and other Viacom properties.

So - no surprise - YouTube took down the clip - and even warned the politician that he'd lose his YouTube account if he continued to violate copyrights!

Was the politician was in fact infringing Viacom's copyright? It seems ridiculous, but there's an argument that he was. After all, Viacom owns the copyright in the Web Junk program, the host's commentary, etc.

What's more, Viacom's use was transformative - they added commentary - whereas the politician's wasn't. He just posted the clip unaltered. That makes a difference in copyright law; advantage Viacom.

But come on - this sure looks like fair use to me. Speech about government and politics is one of the most highly protected areas of the first amendment. By posting the clip, the politician was engaged in politicking - advancing his career. And, don't forget, most of the clip was his content anyway.

But if you want to finish this little law school exam, there's more: in the clip, the politician at one point shows a Star Wars-type Death Star destroying a little red school house. (The pol is a local school board member.) So, were Lucasfilm's copyright and trademark rights violated? Let's not even go there. Back in the Reagan days, there were plans for a missile defense system that everyone called Star Wars. Lucas sued over that, but lost.

And who shot the video anyway? If it wasn't the pol, he may not even own all rights to his own video - the production company might, depending on the terms of the agreement between them, or if there even was an agreement. Even if the production co. and the politician have a proper written agreement, the videographer might own the rights, if he/she was a freelancer and had not signed a written agreement with the production company.

Lawyers call this "chain of title" - the links in the chain of ownership from one person or entity to another. Non-lawyers may call it a nightmare, but for lawyers, well, it's just plain fun. Read more.