The founders of video sharing service YouTube not only knew that their service was being swamped by copyright-infringing videos but one of them actually uploaded many of them himself, according emails released in a court battle over copyright.
Entertainment producer Viacom sued YouTube and its parent company Google in 2007 alleging that Google and YouTube profit from and are responsible for the copyright infringement that goes on at its site.
YouTube hosts user-submitted videos but does not check every video to ensure that the submitter has the rights to it. Viacom is suing Google in a $1 billion suit that has become arguably less relevant in the years since it was filed, as more content owning companies do deals with multimedia companies such as YouTube.
Since the suit was launched, many copyright-dependent businesses have used YouTube heavily as a promotional platform, and the site has done deals to allow content to be shown with major music labels EMI, Universal and Sony BMG.
Thousands of pages of evidence in the case have been published, including emails between YouTube's founders in the early days of the start-up, which sold to Google in 2006 for $1.65 billion.
Emails from 2005 show Steve Chen emailing his co-founders Chad Hurley and Jawed Karim, saying "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".
Chen later emailed Karim about where the company should draw the line on copyrighted material. He wrote: "take down whole movies, take down entire TV shows, take down XXX stuff. Everything else keep including sports, commercials, news, etc. Keeping it, we improve video uploads, videos viewed, and user registrations."
The documents also include revealing details about Viacom's behaviour. It was found to have uploaded its content to the site using usernames, email addresses and even internet connections unconnected with the company. One Viacom executive is quoted as saying that videos should "not be associated with the studio – should appear as if fan created and posted it".
Google's legal argument said that this demonstrated how little hope YouTube would have of weeding out unauthorised and unwanted videos without input from copyright holders.
"Even if YouTube were to recognize that a given clip contains Viacom content, YouTube would not be able to tell whether that particular clip is one that Viacom approved has approved for promotional distribution across the Internet," said its submission. "It is not even clear that having such an accounting would help: Viacom itself was confused on this point when selecting its clips in suit, many of which turn out to be identical to Viacom's authorized promotional videos."
YouTube claims that US copyright law's safe harbour provisions protect it. These absolve a company of responsibility for copyright violation if it is a service provider and does not monitor or pre-screen material for copyright infringement, and if it takes material down once informed of the infringement.
Since Viacom began its suit, a ruling in a case involving video site Veoh has strengthened the case law on safe harbour. A US court found that Veoh qualified for safe harbour even though it did sometimes conduct manual spot-checks to test for blatant copyright infringement.