I have previously written about the Viacom v. YouTube case here and here. Ben Sheffner has an update that points to the Washington Legal Foundation amicus brief in the case. This brief, unlike the other brief mentioned in the article, deals not with the facts in this case, but rather with whether sites like YouTube should be afforded DMCA Safe Harbor protection at all. The brief is incredibly misleading, even for a Washington-based company.

     My biggest problem with its brief is the assertion that if Google is given safe harbor protection, then all of the onus of preventing copyright infringement falls on the copyright holder. The DMCA requires that service providers remove content that they know to be infringing. Google has incredibly sophisticated software to determine the copyright holder of videos uploaded to its site. The problem that Google has is that almost every video that is uploaded is protected by copyright. Most of those uploading the videos own the copyright and want their videos to appear on YouTube. There is no practical way for Google to know whether the person who uploaded the video owns the copyright or not. What makes this so hypocritical is that Viacom isn’t even sure what videos it owns the copyright to and has issued bogus DMCA takedowns for innocent videos. Yet the Washington Legal Foundation thinks that YouTube should be liable when users upload infringing content? How could YouTube possibly be able to find all unwanted content when the content creators don’t even know what content is theirs?

     To be fair, if some of the allegations made in the Viacom case are true, Google may be liable for videos YouTube founders purposely pirated. However, now Google goes above and beyond the legal requirements to ensure that copyright owners know when their videos are on YouTube. They then give the owners the option to make money off of the video or have it removed.
But this isn’t enough for Viacom and other television networks, as YouTube is allowing everyday users to create entertaining content. This content competes with the networks, and they don’t like that. So instead, networks would rather shut down one of the most popular sites on the Internet. That’s what I like about legal action, it’s easier than competing, and it helps improve my future job prospects.

Stephen Burch

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