Jason Breen – UCLA School of Law

    In this article, Jason Breen briefly examines how YouTube would fare under different theories of copyright infringement and then discusses if the DMCA would be able to provide a safe harbor if YouTube is determined to be liable for infringement.  The article reviews YouTube based on the different criteria as listed in the DMCA.  The article goes through the different requirements as listed by a few of my other sources.
This includes technical and logistical issues such as how it operates or notifies its users of copyright law.  It also assures that YouTube is, in the aspects of the DMCA, considered a qualified service provider, because nothing else is protected under section 512 under Title II.  The topics of not knowing of the infringement or not having the ability to control infringement also lead to the belief that YouTube will be defendable.  Additionally, as YouTube relies on advertisements to generate revenue, the close associations between ads and infringing videos throughout the website could render YouTube disqualified for the safe harbor provision. 
    While this article is much longer, it should serve as a great source that goes into more detail in the subtopics that should be analyzed in determining its protection.  It also takes YouTube and compares it to a number of older services that suffered under copyright infringement law, such as Aimster, Grokster, and Napster. 

       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.