Viacom's case against Google is getting murky.

I've been following Viacom's suite against Google/YouTube carefully and today's court events have made for an interesting twist.

Viacom is also complaining about those videos which might have been uploaded to YouTube and shown only to friends.

On a legal front this is a problem for Viacom because they can't know how often this has happened. There's no way to tell. No evidence. No case. (Facebook are currently chanting that too).

The more murky issue, however, is whether "just for friends" counts as a copyright infringement. Certainly if I have a bunch of friends over to watch a DVD then I'm not putting on a "public performance" and I'm not breaking the law. If I had a webcam on in the background and one of my bigmouth buddies in New York was watching - I'm still not breaking the law.

Am I breaking the law if I upload the DVD to an online host and let my friends watch it from there? Ooh. That's trickier. The lawyers will battle it out.

There's a YouTube of Eric Schmidt at Web 2.0 being interviewed by John Battelle which is worth watching. In the video (30+ minutes) Eric Schmidt clearly calls on the "safe harbour" of theDigital Millennium copyright act.

This safe harbour allows companies who move to quickly take down copyright material a "get out of jail free card". Sure. Google had Viacom videos up for ages, in fact, as Google's lawyer David Kramer pointed out that some of the videos on YouTube were uploaded by Viacom itself.

When Viacom fell out with Google and demanded the content be removed, the search engine did act quickly... so Eric Schmidt would say Google's safe as houses. However, what's not certain is whether this Digital Millennium 'safe harbour' applies in this situation.

Viacom may struggle to prove how many/if copyright breaching videos are part of this case. Without that cold hard fact in their case then they're going to struggle.

Google are certainly going to continue to play the corner of simply being a platform where videos can be shared but a platform from which copyright videos are taken down quickly on case of a complaint. Kramer made that clear by saying, "We don't know what works the plaintiffs claim to own," this morning - and that's a mantra we've all heard before.


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