VII. YouTube's Defenses

A. General

Now, what does YouTube have to say in its defense? YouTube filed its answer on April 30, 2007.51 As a threshold matter, it is useful to recognize that in any civil litigation, there are two basic kinds of defenses. One is a direct defense.52 In copyright litigation, a plaintiff makes out a prima facie case by proving that she owns a valid copyright and that the defendant has violated one of the § 106 rights.53 A defendant may mount a successful defense by disproving any one of those elements of a prima facie case. In its answer, YouTube has constructed a direct defense by denying the allegations of most of the paragraphs in Viacom's complaint wherein Viacom has alleged facts that would create a prima faciecase for direct infringement, contributory infringement, and inducing infringement.54

YouTube's direct defenses raise many factual issues that will require a great deal of discovery work. In addition, technical experts will need to testify as to whether the technology YouTube employs actually operates in such a way that YouTube is making the copies. Technical experts will also need to testify regarding whether YouTube is publicly performing or publicly displaying Viacom's works. Technologically speaking, it is possible for YouTube to argue that it merely establishes the software that allows individual users to copy, upload, and download videos. YouTube will argue that its software is similar to Hotmail in that it simply provides a platform for people to send e-mail to one another. YouTube, in turn, will argue that it is an Internet service provider (“ISP”), saying in effect that it merely provides the technology, whereas it is others, members of the public, who are directly infringing.

By analogy, e-mail providers take the position that, if individual e-mail users write defamatory statements, they (i.e., the e-mail providers) cannot be liable for defamation..55 Similarly, ISPs claim that bloggers who write defamatory comments should not render their ISPs liable for defamation.56 Courts have by and large accepted these arguments, acknowledging the fact that e-mail providers and ISPs cannot screen every single piece of information for defamatory content.57 Accordingly, the central question is whether YouTube is technically, factually, and directly infringing by providing the technology that makes the copying possible.

Counts four through six deal with rather mushy copyright concepts-inducement of copyright infringement, contributory infringement, and vicarious infringement-and these allegations will require sophisticated legal interpretation. Similar arguments were made about Sony when it came out with its Betamax, which made it possible for people to make copies of their favorite television programs.58 Is that contributory infringement? Is that vicarious infringement? These are very difficult issues. Thus, this lawsuit involves difficult questions of fact that need to be resolved and also some difficult interpretive questions in order to deal with direct defenses.

On the other hand, YouTube can defend itself indirectly using any number of affirmative defenses.59 In its answer, YouTube has offered no less than a dozen separate, affirmative defenses.60 YouTube argues that it is not liable for copyright infringement due to: 1) safe harbors under the Digital Millennium Copyright Act (“DMCA”); 2) express and implied licenses; 3) fair use; 4) Viacom's failure to mitigate damages; 5) failure to state a claim for works not listed on the exhibits in the complaint; 6) YouTube's innocent intent; 7) Viacom's misuse of copyright; 8) estoppel; 9) waiver; 10) Viacom's unclean hands; 11) laches; and 12) the fact that YouTube has substantial noninfringing uses.61 Of these defenses, fair use and the DMCA safe harbors appear to be the strongest.

B. Fair Use

Copyright infringers often assert that the First Amendment grants the right to free speech, and therefore the right to “say” whatever they wish. However, copyright law-by its very nature-carves out significant exceptions to the right to freedom of speech, by cordoning off specific expression that may only be copied, displayed, or performed by the owner or those to whom the owner has given permission. Therefore, freedom of speech alone will rarely excuse copyright infringement. Nevertheless, the doctrine of fair use presently embodied in § 107 of the Copyright Act incorporates the spirit of the First Amendment by allowing certain socially desirable uses of copyrighted materials. The Copyright Act states:

Many of the clips that appear on YouTube use only a small portion of the entire videos.63 Thus, fair use may be an attractive argument for YouTube. The purpose and character of the video clips' use may often be “commentary” or even something akin to parody, since, by posting a humorous clip in isolation, the users call attention to the humor that may not have been readily apparent when the clip existed in its original context. Accordingly, the purpose and character of YouTube's videos suggest that such a use is permissible fair use. The nature of the copyrighted works, however, tends to be entertainment-oriented, a factor that tilts decidedly toward a finding of infringement. The amount and substantiality of the portion used in relation to the copyrighted work as a whole is another important factor.64 Generally, YouTube's video clips are relatively short, typically a few seconds or at most a minute or two long;65 the portion used is very short-a small percentage of the whole movie or television show. Therefore, this factor weighs in favor of a finding of fair use. Lastly, YouTube clips do not appear to serve as substitutes for Viacom's copyrighted videos, because the clips are often a select part of the whole, a fact which also suggests a finding of fair use.

C. DMCA Safe Harbors

YouTube's strongest defense was provided by Congress in 1998 in the form of the Digital Millennium Copyright Act (“DMCA”).66 The drafters of the DMCA recognized that there was potential liability for copyright infringement by ISPs, the individuals and companies who create and host Internet technology platforms. The drafters' goal was to make sure the ISPs would not be liable for copyright infringement under most circumstances, because there is no realistic way they can monitor everything that users post on the Internet.67 The same was true for those computer pioneers back in the 1980s who created “computer bulletin boards.”68 Even then it was recognized that there was no way those bulletin board operators could monitor everything posted in order to guarantee that no defamatory or hate speech was published online. A number of cases in the 1990s69 addressed whether those bulletin board providers should be liable for defamation, and the courts quickly answered “No.”70 Courts reasoned that bulletin boards were providing a public forum for other people to exercise free speech.71 This was the existing model available to Congress when it provided in the DMCA that ISPs would not be liable for copyright infringement.72 Under the DMCA, ISPs are not required to monitor their sites for copyright infringement, but, in the event that a copyright owner notifies an ISP of infringing activity, the ISP is required to remove that allegedly infringing content within a reasonable period of time.73 Thus, Congress put the burden of policing online copyright infringement on the copyright owners, making them responsible for searching the Internet and then notifying the ISP if they find infringing material. The DMCA protects ISPs from liability as long as they delete infringing material after proper notification.74 This is the DMCA's “safe harbor.” So, as long as the ISP takes the infringing work off the web when instructed by the copyright owner, the ISP comes within the safe harbor of the DMCA.

This is exactly what YouTube is arguing that it does.75 YouTube claims that when Viacom notifies it that something on the site infringes one of Viacom's copyrights, YouTube removes the infringing material. Interestingly, Viacom's complaint partially admits that YouTube complies with the requirements of the safe harbor by removing allegedly infringing videos.76 However, the complaint alleges that, although YouTube may take infringing content down, it fails to do so aggressively or quickly enough.77 Furthermore, according to Viacom, as soon as the material is taken down, someone else often reposts the same material within a matter of hours.78 Thus, Viacom argues that YouTube fails to comply with the spirit of the DMCA because it does not remove infringing material in a timely manner; YouTube is not as aggressive as Viacom thinks it should be.

Google attorney Glenn Brown stated that YouTube is in the right, and he has confidence in YouTube's legal position: “[W]e're proud to continue giving creators a place to post and discuss their videos, whether it be a family's home video or a company like the BBC or any of the other big professional media companies to partner with us to host their content.”79

In fact, the BBC and several other large media providers have reached agreements with YouTube, whereby YouTube has agreed to be more vigilant about protecting the media providers' copyrights once they sign on the dotted line and agree to pay a license fee.80 This, however, will be discussed in Part IX of this Article.81 Another important development relating to YouTube's DMCA safe harbor defense is a relevant Ninth Circuit Court of Appeals case, Perfect 10, Inc. v. CCBill, L.L.C.82 In Perfect 10, filed just weeks after Viacom, the Ninth Circuit interpreted the DMCA's safe harbor in a manner that strengthens YouTube's position. The Ninth Circuit not only reaffirmed the strength of the protection afforded by the safe harbor, but also reaffirmed that the onus to police the site's content is on the copyright owner and not on the Internet service provider.83

Despite the Ninth Circuit's ruling, one critic has argued that the DMCA's safe harbor was not designed to protect websites: “The DMCA was never meant to protect websites such as YouTube, [as evidenced by the fact that] lawmakers explicitly left out the term 'website' when crafting the act.”84 This argument raises an issue as to whether there is a meaningful distinction between “Internet service providers” and “websites.” The plain language of the DMCA, however, appears to contradict this position. Section 512(k)(1) defines “service provider” as follows:

Thus, the plain meaning of the statute seems to encompass websites such as YouTube and America Online as an “operator of facilities” for most of the activities enumerated in § 512(k)(1)(A)-(B).