by Paul Alan Levy
The parties to litigation often abuse the process of demanding that court documents be kept under seal to protect confidential information, using the claim of a need for confidentiality for the ulterior objective of preventing the disclosure of facts that are just publicly embarrassing because they contradict the litigant's public relations positions. It is with great interest, therefore, that we noted the mass unsealing of previously sealed materials from the Viacom lawsuit against Google and YouTube.
Very much worth a read is the public statement from YouTube's counsel, and the underlying summary judgment brief just revealed publicly after the court's seal was lifted. Simply put, according to the statement, at the same time that Viacom has been suing Google for its failure to police adequately the placement of its copyrighted content on YouTube, Viacom was, itself, secretly placing clips from its own copyrighted content on YouTube, while going to elaborate lengths to make it appear as if the material was stolen and to conceal its own involvement in placing the material on YouTube. Not, apparently, as a way to set Google up for suit, but because the posting of apparently stolen content was seen as a way to enhance the public interest in the underlying works.
A particularly juicy excerpt: "Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself."