VIII. Prospects for Summary Judgment

One thing that seems clear is that this case probably will not be decided on summary judgment. There are so many facts still at issue-such as how the technology works and whether YouTube's activity constitutes direct infringement, direct reproduction, direct public display, or direct public performance-that it is very unlikely that summary judgment will be appropriate for those three counts. Other factors that may weigh against a ruling of summary judgment include tough questions of whether the DMCA applies to the case and, if so, how. There would also be multifaceted factual questions involved in deciding whether there has been contributory infringement, vicarious infringement, or inducement, all of which make summary judgment an unlikely outcome.