EXCLUSIVE: Earlier this year, Viacom suffered a major defeat at the hands of Google when a New York district court judge ruled that YouTube qualified for "safe harbor" from claims of direct and contributory copyright infringement.
Viacom is determined to have better success at the appellate level, leading it to hire Theodore Olson, one of the most esteemed appellate lawyers in the country, for the second round of this battle.
Olson was Solicitor General of the United States from 2001-04. Afterwards, he rejoined Gibson, Dunn & Crutcher, where's he's argued dozens of cases before the Supreme Court. His notable victories include Bush v. Gore, which paved the path to the presidency of George W. Bush, as well as Perry v. Schwarzenegger, a decision earlier this year at a federal district court in San Francisco overturning California's ban on same sex marriages.
The first job for Viacom's new lawyer will be preparing the company's appeal, which it plans to file on Dec. 3.
To that end, Viacom has already scored a small victory.
Three weeks ago, Google submitted a motion to consolidate the appeals of both Viacom and a class action of plaintiffs led by the U.K. Premier League, which was separately pursuing copyright infringement claims against YouTube.
Google asked the 2nd Circuit to consolidate the briefing and argument so as to "spare the parties needless duplication of effort and make the Court's consideration of these appeals easier."
Viacom strenuously objected to the motion. It didn't mind having an appeals court consider the two appeals in tandem, but it loathed the idea that it would be forced to file just one brief in coordination with the Premier League class. Viacom argued that the move would "prejudice" the court because of factual and legal differences in each of the cases and that the consolidation "would require Viacom to reassess strategic decisions relating to its brief and require significant negotiations and coordination with the class."
On Monday, the 2nd Circuit confirmed that the case would be consolidated and heard in tandem, but that each of the parties would be given the opportunity to file their own briefs.
That means that on Dec. 3, expect to see no more than 14,000 words of arguments from Viacom, arguing why the district court made an error giving YouTube "safe harbor" and ignoring the video-sharing Web site's liability for direct infringement.
The timetable also puts 2nd Circuit oral hearings on track to be heard next summer.