Viacom is now being blamed for secretly uploading copyright infringing content by YouTube's chief counsel, Zahavah Levine. This announcement comes as the court prepares to render a decision in the $1 billion copyright infringement lawsuit Viacom (VIA) brought against Google's (GOOG) Internet video giant, YouTube.

Attorney Levine has stated in a blog post: "For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there."

What a tangled web we weave when first we practice to . . . advertise?

So the Google boys (NASDAQ:GOOG) have done it again. They've awakened yet another giant, though this one wasn't slumbering. Viacom (NYSE:VIA) is mad, and rightly so. But beyond a very serious test of the Digital Millennium Copyright Act and a whole lot of litigation costs, what could be the substantial outcome? Will a tort action truly hand Viacom a billion dollars from Google's coffers? That would equal about 30 times the amount of actual damages, if calculations were similar to those presented by Morgan Stanley's Mary Meeker. Oh, I forgot, there's that thing they call punitive damages. I suppose that Google must be punished. Here, how's this: Oh you bad bad Google, naughty, naughty, naughty. There, that should do it.

Wasn't there a technology made available about ten years ago which scrambled digital media if someone attempted to copy and then upload it? If not, why hasn't someone seen to it that something like that is done? The tech world has already proven to me beyond any doubt that if I can imagine something they can make it happen. Such a tremendous amount of misery could be avoided if content owners could embed their own protections within their own media. Isn't that kind of where the responsibility belongs? Sure, wicked minds would find ways around it but it would make those wicked minds work harder for their piracy and it would slow the violations down a lot.

But Viacom sees fit to wave a flag and point a finger. I'm sure they consulted with more than a couple dozen corporate attorneys on this. In the grand scheme of copyright ownership vs. public domain, they've not only opened a can of worms, they've stuck their head in a hornets' nest. I guess they had to though, because someone was going to eventually any way. This court action isn't just going to be about Viacom and Google arguing about content rights protection. It will get bigger and badder than that. I think the Google boys have been patiently waiting for this. I need not remind you that the Google crew is neither scared nor stupid. The outcome is going to be fascinating to witness.

Plaintiff, Robert Tur d/b/a Los Angeles News Service, has filed suit against YouTube Inc. alleging issues of copyright infringement. (Case No. CV 06-4436-FMC)(AJWx)

YouTube claims legal protection from copyright infringement lawsuits as they claim to be merely a provider of content. YouTube's asserted defense is the safe harbor provided by 17 U.S.C. §512(c)(1) of the Digital Millennium Copyright Act (DMCA), more particularly, the Online Copyright Infringement Liability Limitation Act (OCILLA) portion of the DMCA.

However, YouTube has two very powerful arguments working against it. First, the safe harbor immunity provided by 17 U.S.C. §512(c)(1) of OCILLA may not be available to YouTube because YouTube receives a financial benefit directly attributable to the infringing content in a case in which the service provider has the right and ability to control such presentations.

Second, Youtube claims rights of ownership over all content uploaded to their site and they claim they can do anything they want with it, without limitation. To most of us that would come across as a claim of rights and responsibility.

The heart of the matter is this: when it can be shown in a court of law that an internet venue has failed to exercise due diligence in the protection of copyrighted material within their site, and they are deriving profitable compensation directly from the presentation of that same material, then it behooves the courts to find in favor of complaints filed by the holders of those copyrights.

Internet content providers are claiming they have limited ability to canvass material and nearly no control over the actual content which is uploaded to and downloaded from their sites. For me, the words, "due diligence" bear much weight in this matter. What level of content control will the courts consider sufficient? Should a website generating thousands of dollars a week have dedicated content surfers policing their site? I think so.

Is it too much to ask, that when a copyright holder makes a complaint to a content provider that the holder's rights are being infringed, the provider should do something to end the violation? I'll go a step further and say that the provider should be expected to make a reasonable attempt to prevent those violations.

This is a BIG can of worms just opened. I can't wait to see what the courts decide.