The Digital Millennium Copyright Act (“DMCA”) requires the adoption and implementation by the internet service provider of policies related to users who post infringing videos as well as the expeditious removal of infringing videos upon proper notification by the copyright holder.  Accordingly, an analysis of YouTube’s business policies is pivotal to determining whether it will receive protection under the DMCA.  YouTube’s Terms of Use spell out its policies with regard to posting unauthorized copyrighted works, repeat infringers, and termination of a user’s account. 

        In its Terms of Use, YouTube expressly states that a subscriber is not allowed to post infringing material.  It enunciates a termination policy with regard to repeat infringers and a removal policy with regard to infringing content that will be analyzed to determine whether YouTube complies with the requirements of the DMCA.  In addition, an examination will be conducted to determine whether YouTube’s actions are consistent with its written policy.  How YouTube has implemented its Terms of Use ultimately will be decided on the facts.   However, articles and legal publications will shed some light as to whether YouTube has reasonably implemented these policies.  Also, the legislative history to the DMCA and case law will help to explain what is expected of the internet service provider with regard to the policies mandated by the DMCA.  

       In drafting these Terms of Use, it is clear that YouTube is striving to meet the requirements of the DMCA – in fact, its written policy expressly references the DMCA.  This is important both in terms of meeting the various DMCA requirements as well as showing the court that it is not Grokster-like, but rather is trying to make a good faith effort in stopping infringing videos from appearing on its website.  Weighed against YouTube’s purported good faith are Viacom’s claims that repeat infringers can recreate new accounts on YouTube in a matter of minutes and that YouTube through its technology prevents copyright holders from identifying all of the infringing material on its website.  An analysis of YouTube’s Terms of Use and its implementation -- viewed from both parties’ perspectives -- with regard to termination and removal policies will be critical in determining whether YouTube receives protection under the DMCA.