The Motion, said Viacom, "provides the evidence and legal basis for Viacom's arguments that YouTube intentionally operated as a haven for massive copyright infringement."
"YouTube and Google never sought to operate a mere storage or Web hosting service," Viacom's 67 page Motion concludes. "They were seeking to build a media entertainment empire comparable to other major television and film distribution outlets -- and did just that. They are therefore ineligible for [DMCA safe harbors]."
If the judge in the case accepts this argument, Google and YouTube could be liable for massive damages. A ruling is still several months away at least.
In a blog post on Thursday, YouTube chief counsel Zahavah Levine argues that the video site does deserve DMCA protection because it tried to respond to copyright holders. "Congress enacted the DMCA to benefit the public by permitting open platforms like YouTube to flourish on the Web," writes Levine. "It gives online services protection from copyright liability if they remove unauthorized content once they're on notice of its existence on the site."
Levine charges that Viacom made it impossible for YouTube to remove its copyrighted content because it kept adding more content.
"For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there," Levine says. "It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately 'roughed up' the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom."
Levine says that given Viacom's actions, YouTube had no way of knowing which clips were authorized and which were not.
Google has until April 30 to file a brief opposing Viacom's motion. Reply briefs are due by June 4.