This law review article written by Jason Breen from the UCLA School of Law analyzes YouTube’s defenses to the Viacom lawsuit and, in particular, the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).  The article examines each of the requirements mandated by the DMCA and how those requirements have been interpreted by the courts.  It also points out where some of the court decisions appear to be inconsistent. 

       This article examines requirements of the DMCA that YouTube must meet in order to qualify for safe harbor protection.  First, the author reviews whether YouTube accommodates “standard technical measures” used by copyright owners to identify their copyrighted works as required by section 512(i) of the DMCA.  Second, as the protections of the DMCA are only available to qualified service providers, this article examines whether YouTube will qualify as a service provider and notes that the courts have broadly interpreted this provision.  Third, YouTube must establish that it does not have actual or apparent knowledge of the infringing material.  By providing a plethora of cases, the article concludes that the high standard of proving the provider has the requisite knowledge would likely weigh in YouTube’s favor.  Fourth, according to the article, a more difficult hurdle for YouTube to meet is the requirement that YouTube not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity.  The article points out two conflicting lines of judicial reasoning regarding this two-part test.  Using citations provided by this author and after reading several of these cases (some of which are included in this Annotated Bibliography), I can address in my paper how these conflicting theories might impact YouTube’s defense under the DMCA. 

       The author concludes that it is likely but far from certain that YouTube will be able to avail itself of the DMCA’s safe harbor in light of the uncertainties in the law and factual questions as to YouTube’s operations.  This article is helpful in analyzing YouTube’s operations, Viacom’s allegations, and in providing citations to court decisions which I will read and apply to the facts of this lawsuit in order to make my own judgment as to whether YouTube should prevail under the safe harbor provision of the DMCA.

       In denying Viacom’s allegations of direct and secondary copyright infringement, YouTube will seek to obtain the protection of the safe harbor provisions of the 1998 Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512.  A finding that YouTube satisfies the DMCA’s safe harbor requirements would immunize it from monetary damages or injunctions even if it were found to have directly or secondarily violated the copyright laws.  The statute explicitly mandates a series of threshold requirements (17 U.S.C. 512(i)) and core requirements (17 U.S.C. 512(c)(1)) that a service provider must meet to be entitled to safe harbor protection.  Most problematic for YouTube will be whether it meets the DMCA’s core requirements under section 512(c)(1)(A),(B), and (C).  Subpart A requires that the service provider not have actual or apparent knowledge that the material on its network infringes on the rights of a copyright holder.  The legislative history will be examined to determine the scope of “apparent knowledge” including an examination of the “red flag” test stated in the Congressional Reports dealing with the DMCA.  Subpart B requires that the service provider not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity.  Of critical importance to Subpart B will be YouTube’s business model for generating revenue from advertisements.  Subpart C requires the service provider, upon notification by the copyright holder of claimed infringement on its website, respond “expeditiously to remove” the infringing work.  Both Viacom’s arguments and YouTube’s counter arguments will be examined in an effort to determine whether YouTube’s removal policy conforms to the DMCA requirements.

       My paper will address some of the conflicting cases that have examined the various sections of the DMCA described above and rely on the legislative history at H.R. Rep. No. 105-551 (1998) and S. Rep. No. 105-190 (1998) to amplify congressional intent.  Critical to my analysis will be the application of the facts of this lawsuit to the language of the DMCA, taking into account its legislative history, to determine whether YouTube should meet the requirements of the DMCA’s safe harbor provision.

       Perfect 10, an adult entertainment website, sued Cybernet Ventures, an online age verification service, for infringing photographs found on its affiliated websites.  In this case, the court refused to provide Cybernet with safe harbor protection under the Digital Millennium Copyright Act (“DMCA”).   The reasoning of the court provides some insights into whether or not YouTube will be protected by the DMCA.

       In determining whether Cybernet would be afforded safe harbor protection, the court analyzed each of the DMCA’s requirements.  The court looked to the legislative history as guidance and relied upon Congress’ mandate to “take a common-sense, fact based approach not a formalistic one.”  Overshadowing much of the court’s discussion was evidence of Cybernet’s attempt to undermine the intent of the DMCA to forge a working relationship between copyright holders and service providers.  Of particular importance was the fact that Cybernet, after receiving notice from the copyright holder, failed to expeditiously remove infringing material from its system evidencing bad faith and undermining congressional intent. 

       Also significant for purposes of my paper is the Cybernet court’s analysis of the DMCA’s direct financial benefit test.  Here, the court found a direct financial benefit where Cybernet’s income was based on the number of new users to affiliated sites including infringing sites.  The court found that the quality of Perfect 10’s copyrighted images attracted new subscribers.  Thus, the infringing images acted as a draw which increased Cybernet’s revenue.  This case could be problematic for YouTube since Viacom has argued that the infringing works on YouTube’s website attracts more users which in turn drives higher advertising revenue.  Accordingly, the manner in which YouTube generates its revenue will be highly relevant to the financial benefit test.  Whether YouTube satisfies the financial benefit test will be analyzed under Cybernet’s reasoning, other court opinions, and the legislative history that interprets the direct financial benefit test.