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Page 11 of 11
XI. Conclusion
The media was quick to forecast the outcome in the pending litigation. One industry expert remarked, “[t]he basis for this suit is hard to understand as to why Viacom thinks it will succeed. The fair-use concept covers much of what's up there on YouTube. Viacom really doesn't have a solid legal leg. Google is in pretty good legal shape.”
Corynne McSherry, staff attorney for Electronic Frontier Foundation, opined:
The outcome of a case about innovative uses of technology is rarely certain, but Google and YouTube have a strong argument that the DMCA safe harbors protect them from liability. What is clear is that any ruling in this case will have profound implications for many businesses, like Yahoo, eBay, Facebook and so on, that host content on behalf of users.
Randy Lipsitz, a partner in a New York law firm who specializes in intellectual property, had the following observation: “It appears this early stage from a purely legal point of view, especially given the Supreme Court's recent views as expressed in the MGM v. Grokster decision from 2005, that Viacom has the better case to prove some form of copyright infringement.”
Some commentators think that it is an easy case for YouTube; others think it is an easy case for Viacom. If the case is actually litigated-which is a big if-it may never come to judgment, because, as some have argued,
this is just brinksmanship and Viacom sued only as a negotiation tactic to provide leverage for settlement. As previously noted, there are problems with the factual issues in counts one through three, claiming copying, public display, and public performance. It is questionable whether YouTube's technology actually performs those tasks. There are also real problems with interpretations on the legal side of counts four through six. Is there inducement? Is there contributory infringement? Is there vicarious liability? Given the complex nature of the factual and legal issues presented by Viacom's complaint, it seems most likely that the outcome of the case will center on the court's interpretation of the DCMA as to whether a website such as YouTube comes within the safe harbors designed for ISPs. In its complaint, Viacom asserts that YouTube needs to do more to prevent infringement,
arguing that, since YouTube already polices for pornography and hate speech, it should also be policing for copyright infringement as well.
However, the DCMA does not require those types of preventative measures. When Congress created the Act in 1998, it put the onus on the copyright owner-not on the ISP.
One instructive way of thinking about this problem is to consider which party is in a better position to guard against the harm at the lowest cost. Is Viacom, the copyright owner, in a better position to prevent copyright infringement, or YouTube, as the ISP? In many respects the answer to this question may be that YouTube can more easily and cheaply stop copyright infringement on its own website than Viacom, or any other copyright owner, whose works are copied onto YouTube. YouTube is the entity that is sitting at the controls. On the other hand, the DMCA puts that burden on the copyright owner, not on the ISP.
The outcome may boil down to a classic case of judicial deference to the legislative branch. Should the courts not defer to Congress on this issue as to where it wants to place the burden? This seems to be a perfect circumstance for having judicial deference or discretion. If the court holds that the DMCA applies in this case, YouTube should be protected by the safe harbor provision. It is the copyright owner who is required to provide notice and ask that the infringing content be removed; it is not the ISP's job to police the massive amounts of information that users place on its servers.
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