YouTube,Viacom Case May Not See Courtroom

    March 27, 2007

The legal battle between YouTube and Viacom comes down to one central issue. Does the Digital Millennium Copyright Act (DMCA) apply to YouTube or are they guilty of copyright infringement as Viacom alleges?

The DMCA does protect Internet companies from copyright infringement if rights holders request that a company removes copyrighted material. This is something that YouTube has complied with in the past. YouTube believes that since they do comply with take down request that Viacom’s suit against them will not hold up in court.

General Counsel for Viacom Michael Fricklas sees it another way. In an opinion piece in the Washington Post Fricklas argues that the DMCA does not apply to YouTube. He says YouTube defends itself by using only a narrow portion of the DMCA that says service providers are protected from copyright infringement if they store content at the direction of the user.

Fricklas writes, “This defense is available only to users who do not have "knowledge" of infringement or who "expeditiously" take down material when they find out they are infringing a copyright. The defense is not available to someone who "derives a financial benefit" from copyrighted material he stores if he has the "right and ability to control" it.”

He goes on to point out that YouTube does not receive visitors because of their storage facility or technical functionality and that the reason people visit the site is for entertainment value. In addition he says YouTube receives financial gain by selling traffic to advertisers.

Whichever side you believe to be correct, it is highly doubtful that the Viacom vs. YouTube suit will ever see a courtroom.

Cynthia Brumfield makes a point that Viacom has approached the issue in the wrong way. She writes, “I still think Viacom made its work harder by not grabbing the bull by the horns at the outset and explaining from the get-go how the DMCA doesn’t apply to YouTube. Obviously, Viacom might be thinking this too. Otherwise why is the company going public, tipping its legal hand, so to speak, in a major newspaper well before it needs to?”