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Will soccer suit boot Google? - May 9, 2007

The complaint in the lawsuit filed by the parent company of the English Premier League against Google/YouTube doesn’t raise a lot of legal issues that weren’t already on the docket in the suit filed by Viacom against the same defendants.

But by seeking to frame their case as a class action, the EPL and its co-plaintiff Bourne Co., add an interesting new wrinkle that could change the dynamics of the issue for Google.

I’ve argued before that much of the controversy surrounding YouTube’s video sharing platform is ultimately about a business deal.

The technology underlying YouTube is not going to go away, any more than peer-to-peer technology went away when the courts shut down Napster. Nor is the consumer impulse to interact with the media they’re consuming.

At some point, content owners will have to reach an accommodation with “participatory media” platforms.

The question is, when? And what should it look like?

YouTube officials seem to share the view that the disruption their innovating has wrought on the traditional media companies must ultimately lead to a business deal. But they, too, seem uncertain what it should look like.

In an interview with Wired magazine, Google CEO Eric Schmidt dismissed the idea that any significant legal issue is at stake in Viacom’s lawsuit against YouTube.

“It’s a business negotiation,” he said. “We’ve been negotiating with them, and I’m sure at some point we’ll negotiate with them some more.”

Which is doubt true, at least in part, but also somewhat disingenuous coming from Google, which thus far has shown little interest in negotiating seriously unless and until a judge says it have to.

Schmidt’s gambit seems to be to stand behind YouTube’s purported DMCA safe harbor as long as he can, and then cut a deal if it starts to look as if a court might say he can’t.

That may be a reasonable business strategy for dealing with Viacom, or any other bi-lateral negotiating partner. But I’m not sure it’s going to work in the Premier League case, which doesn’t look to me like a business deal.

“Even if you buy the argument that Viacom is just negotiating by other means, that’s not what we’re about,” the soccer league’s lead attorney in the case, William Hart of Proskauer Rose told me. “We think there’s a significant issue of law here, and we’re seeking redress on behalf of all copyright owners, including small copyright owners who don’t have the resources to challenge what YouTube is doing.”

The class status—assuming the court certifies it—will make it harder for Google to settle the case—to cut a deal—and increases the chances of forcing resolution of the legal questions raised.

Tapping a foreign copyright owner as a lead plaintiff in the case could also push Google out of its legal comfort zone.

“The U.S. is not the world,” Hart said. “The [section] 512 safe harbor isn’t some talisman you can just wave and your problem goes away.”

At the very least, the case makes the game more complicated for Google.

 

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