This article written by Michael Fricklas, general counsel at Viacom, sets forth Viacom’s legal and factual arguments supporting its position that YouTube should not be afforded safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). First, he argues that YouTube is not the kind of entity envisioned by Congress in enacting the DMCA. YouTube, he claims, is more than a storage service provider; it is an entertainment destination. Second, Viacom’s attorney claims that YouTube’s policies with regard to infringing content are selectively implemented with more proactive action given to companies in which it has a licensing agreement. Third, the rampant unauthorized copyrighted material on YouTube demonstrates that it has the requisite knowledge of infringing activity. He cites as further support for a finding of knowledge the fact that YouTube creates a list of “featured videos” on its home page. Fourth, Mr. Fricklas states that YouTube receives a direct financial benefit from infringing activity. He contends that infringing content generates popularity and more viewers which increase advertising revenue. Fifth, he asserts that YouTube has the ability to control content. As evidence of this fact, Mr. Fricklas states that YouTube’s managers remove pornography. Finally, as a policy matter, he claims that requiring copyright owners to patrol the web on an ever burgeoning number of sites would be unfair. Forcing YouTube to obey copyright laws would not stifle innovation. Instead, Viacom’s attorney argues that protecting intellectual property spurs investment and thereby the creation of new technologies. It is, therefore, critical that the law ensure that YouTube respect the rights of copyright owners, like Viacom.
Mr. Fricklas’ arguments are, of course, partisan. However, they shed light on Viacom’s perspective and the facts that it may rely upon during the lawsuit. The article also crystallizes some of the hurdles that YouTube will have to overcome if YouTube is to receive safe harbor protection. In reaching my conclusion as to whether YouTube should meet the DMCA’s requirements, it will be necessary to present and analyze Viacom’s arguments. This article will be helpful in that regard.