IX. Some Practical Considerations

The Viacom case really grew out of failed negotiations. As previously mentioned, the BBC and CBS reached licensing agreements with YouTube.86 YouTube agreed to be more vigilant about deleting copyright violations when notified, and to be more proactive about finding violations in return for a fee paid by the copyright holders.87 Viacom and YouTube were unable to agree to similar terms, and as often happens when negotiations break down, one of the disappointed parties-in this instance, Viacom-sues. These unsuccessful negotiations lurk in the background of this lawsuit; sometimes people do not sue for good and just reasons, but rather because they are mad.

Also, YouTube does proactively try to remove certain types of content. For example, Viacom's complaint notes that YouTube quickly removes material containing hate speech and pornography.88 Given that YouTube does such a good job of policing those kinds of objectionable, unwanted activities, the obvious question then is why it cannot remove copyright violations just as expeditiously. YouTube's response may very well be that it is easier to tell when something is pornography than it is to discern when something constitutes copyright infringement. A two-minute clip taken out of a three-hour movie might be fair use depending upon how it is used, especially in light of the third factor of § 107 of the Copyright Act (i.e., “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). On the other hand, when you see genitalia and certain telltale conduct, it does not take as much acumen to determine that what you are viewing is pornography. There is also an issue as to whether YouTube could police potential infringement by having people review content or whether filtering technology could adequately perform this function.89