Ed Felten has noticed an interesting wrinkle in Viacom's suit against YouTube — Viacom says that YouTube contributes to copyright infringement by allowing users to have private videos, because those videos might infringe on copyright.
In addition, YouTube is deliberately interfering with copyright owners' ability to find infringing videos even after they are added to YouTube's library. YouTube offers a feature that allows users to designate "friends" who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation…. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners.
And IP Democracy notes that Viacom uses the same laws as YouTube to shield it from liability on its own film-sharing sites, iFilm and Atom.
Does Atom Entertainment fail to actively and repeatedly sweep its uploaded user submissions for copyrighted content, an allegation that Viacom levels against YouTube in its complaint? I would bet a lot of money that Atom doesn't take the proactive steps to prevent infringement that Viacom demands of YouTube. Why? Because the law doesn't require it.
What about iFilm, another Viacom-owned video sharing site, which also relies on the take-down provisions of the DMCA? Are any iFilm employees aware of copyrighted content that is uploaded to the site, content that may stay in iFilm's archives until a take-down notice appears, which places an impossible burden on copyright holders? Viacom says that YouTube relies on this impossible burden to get rich.
Lessig sums it all up nicely: Viacom got the world's most generous copyright law in 1998 with the DMCA and it's still not enough for them. The YouTube suit makes recourse to the terrible Supreme Court decision in Grokster, seeking to prove that YouTube "induced" copyright infringement:
Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn't like one part of that law – the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend – the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you've got a Supreme Court eager to jump in and legislate?