V. Some Relevant Copyright Principles

In the United States, Copyright Law protects original works of authorship fixed in a tangible medium of expression, such as the videos, movies, and television shows that Viacom owns.29 Section 106 of the Copyright Act gives the copyright owner the right to reproduce the work or make copies of it,30 and to adapt the work or make derivatives of it.31 Section 106 also grants copyright owners the exclusive right to publicly perform works32 and to publicly display works.33 So when an individual copies one of Viacom's videos-an episode of The Brady Bunch, TheColbert Report, or The Daily Show with Jon Stewart-that copying is technically a violation of Viacom's copyright because the individual is reproducing the work. Furthermore, when YouTube users download that video and click “play,” they may be watching a public performance, because the video is publicly available to millions of people.34 Thus, individuals who copy and watch these videos are probably violating § 106 of the Copyright Act. However, unlike the recording industry's efforts to protect its copyrights in music against illegal copying on the Internet,35 Viacom has chosen to sue Google and YouTube rather than the individuals like you and me who directly infringe.

Hence, the central issue concerns whether YouTube or YouTube's users are chiefly responsible for the copyright infringement outlined in Viacom's complaint. Accordingly, many difficult factual issues must be resolved in determining if YouTube technology is in fact independently copying, performing, or displaying Viacom's copyrighted videos as a matter of course.