[rayiner]

The difference is that Youtube takes advantage of the DMCA safe harbor provision by responding to DMCA takedown requests. Indeed, the Youtube/Viacom litigation was instrumental in the current understanding between media companies and internet companies that sharing sites could operate freely as long as they complied with DMCA requirements. Megaupload in comparison made it a point to bill itself as a facilitator of copyright infringement.

[eliasmacpherson]

I'm not sure I remember it billing itself as a facilitator of copyright infringment and I do seem to recall megaupload responding to DMCA requests. I remember in response to their indictment megaupload said that the DMCA requests they didn't respond to were on machines that had some other legal instrument demanding they not interfere with the evidence.

I wasn't sure how youtube's private videos worked but jlgreco has explained above - further blurring the lines in my view between megaupload et al and youtube.

I think the litigation you mention is evidence of Google's lawyering and lobbying prowess.

[tptacek]

No, from the available information (including the indictment) it did not appear that Megaupload complied with DMCA laws. Specifically:

(1) They sought to rate-limit DMCA takedown requests

(2) They operated the service with red-flag knowledge of copyrighted content, such as when a user complained that the video quality of the Showtime show "Dexter" was poor, and Kim Schmitz mailed his team to work on improving the quality of that content.

(3) They themselves used the service to exchange copyright-encumbered material, such as the movie "Taken".

(4) They operated a paid incentive program to get users to upload copyrighted content, and in their itemized performance reports for the program acknowledged repeatedly that the content they were paying for was copyrighted.

[eliasmacpherson]

1) I don't have anything to disagree with here specifically: it would be easy to make a case that youtube were more responsive than megaupload. (though I don't know any of the details - I'm just assuming) I doubt megaupload had youtube's resources - another assumption.

2) 3) and 4) I think youtube staff were just as bad if not worse. From Google/Viacom - you can see email transcripts on page 7 onwards (numbers being at the bottom of the page)

(PDF warning) http://msnbcmedia.msn.com/i/CNBC/Sections/News_And_Analysis/...

4) further to above - I do think youtube channels make money - and copyright material can be a source of that (though it should not be by their rules). Youtube now have detectors in place - that wasn't always the case. Megaupload could have done similar.

I think what really swung it for Google was catching Viacom uploading their own material, and yet suing for it, but again I'm not 100%

Also youtube weren't dealing with an FBI sting and it went through the courts. (I think that is where the lobbying aspect comes in - wild speculation, sure, but there is a marked difference in treatment)

[tptacek]

Thanks for digging that up. It's instructive to read the evidence in the Viacom suit and compare it with the MegaUpload indictment. Again and again, the management of Youtube struggles with the copyright problem. Clear directives are given to remove full-length videos. The legality of clips from Comedy Central are constantly questioned. When Jawed Karim himself posts a copyrighted video, the rest of the team seems angry. And yes, repeatedly, the Youtube team is shown to be sensitive to the impact that copyright enforcement will have on their user stats.

There is no such conflict in the Mega emails. Kim Schmitz is show repeatedly to be concerned solely with maximizing the value of the content Mega stores to users. The operators of Megaupload are repeatedly shown to be aware of specific infringing content --- sometimes because they themselves used it, sometimes because their users pointed it out, and in some cases because they paid to have it put there.

Could there have been a criminal infringement charge leveled against Youtube? Based on this evidence, it looks like "maybe". But would DOJ have won the case? Almost certainly not. Read the judgements in the Viacom case. The founders are repeatedly found not to have had awareness of specific infringements. The DOJ doesn't bring cases it doesn't think it can win.

[eliasmacpherson]

> There is no such conflict in the Mega emails. Kim Schmitz is show repeatedly to be concerned solely with maximizing the value of the content Mega stores to users. The operators of Megaupload are repeatedly shown to be aware of specific infringing content --- sometimes because they themselves used it, sometimes because their users pointed it out, and in some cases because they paid to have it put there.

Agree with everything you wrote except the above. Basically the disagreement is on the source materials - one is a naive Viacom and the other is an indictment. So I think the indictment is cherrypicked "better" than Viacom managed.

If e.g. the FBI/DOJ were going after youtube I think they would have quoted more selectively than Viacom did.

Unless the full text of Mega's emails are out there - I can't be sure there's no conflict, I'm sure someone could dredge up him ordering something taken down.

Again with "repeatedly" and "specific" - the youtube emails, for all their conflict are repeated and specific, many times. There's also instances of youtube employee's grabbing stuff from other sites and putting it there themselves, which mega are accused of. I'm pretty sure with youtube's channel system, copyrighted content is paid to be put there in the same manner, though I'm not sure how youtube's early users were compensated.

I doubt the thought occured to them to bring a criminal case against youtube - that's one of the points I'm wildly speculating on - or if it was the case, lobbying stemmed it.

I'll have a read of the ruling: (PDF) http://www.legalbytes.com/uploads/file/Viacom-YouTube%20%28G...

[tptacek]

The full text of Mega emails are included in the indictment. If Viacom could have quoted anything of a similar magnitude, they absolutely would have. You should read the indictment. It's damning. And fun reading!

[rayiner]

I don't know if the Google/Viacom litigation says anything about Google's lobbying prowess. Google is just trying to take advantage of the DMCA safe harbor, which is as old as Google itself and quite a bit older than Youtube.