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.

       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.

    This section of U.S. Copyright law sets guidelines and restrictions for internet service providers and internet services which use their own servers to host user documents.  It allows for an internet service to continue functioning without fear of reprisal from copyright property owners so long as the operators of the service are not participating in the infringement and do not know of the infringing material’s existence on their servers.

    This governs server liability, stating “a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.”

    It is this kind of exemption that keeps sites like YouTube and BitTorrent search sites up and functional.  If the copyright owner actively complains, the server simply takes down the files and no legal issue is raised (meanwhile the copyrighted content likely pops up again within a matter of days).