A Law Professor's Opinion of Viacom vs YouTube

troll -1 writes "Lawrence Lessig, a well-known law professor at Stanford, has an op-ed in the NY Times entitled Make Way for Copyright Chaos which references the Viacom vs YouTube case. What's interesting about this article is that it gives some historical perspective on copyright law and the courts. Up until Grokster, Lessig says the attitude of the courts was, 'if you don't like how new technologies affect copyright, take your problem to Congress.' But in the Grokster case the court seemed to rule against the technology itself, cutting Congress out of the picture. He also explains that Viacom is essentially asking the Court to rule against the safe harbor provision of Title II of the DMCA which should protect YouTube and others against liability so long as they make reasonable steps to take down infringing content at the request of the copyright holder. Lessig doesn't give us any insight into who's going to win but he does conclude that 'conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright."

Anlogous to Slashdot vs Scientologists

[CrazyJim1 (809850)]

Is Slashdot responsible for it's user's material? No.
Should YouTube be responsible for it's user's material? Viacom says yes. Viacom doesn't want to get into the buisness of tracking down users individually.

Now is Google supposed to rat out offenders minimally? Or is Google supposed to become the user generated content police themselves? If they are, it sets a bad prescedent for all text forums online in that the moderator will have to make sure the posters aren't posting something copywrighted. I won't get into draconian measures an oppressive government has on free speech, even though it does tie in.

Re:

[foodogfoo (1077173)]

Very true ... I see this debate almost everyday about users in various forums cut and pasting articles and sometimes the whole article. Too many shades of gray to figure it all out.

Pawn Shop versus Fence.

[goombah99 (560566)]

When does a Pawn Shop or Consignment Shop that accepts stolen goods become a fencing operation. Presumably it has to do with if the pawn shop owner knew or had reason to suspect the items were stolen. But of course we know that's not good enough. We must also expect the pawnshop owner to make a good faith effort to determine if the goods were stolen. Otherwise we end up with a bunch of Sargent Shultz, winking de facto fences. (I know nothing!). Yet we also can't expect the pawnshop or consignment owners to work so hard at establishing the provenance or they can't exist as a bussiness.

Now scale this up to the point where the consignement owner has both slashed his margins to the bone, and is accepting and reselling so much merchandise he literally hasn't the staff or time to check. Then you have E-bay.

E-bay is a consignment shop that is not really meeting the good faith effort that is the industry standard for pawnshops.

One the one hand, who gave them a free pass on making an effort? On the other by having a huge customer base and low margins, they in some ways have created a new industry. They are arbitraging the junk drawers and attics of america. Putting all that goods back into circulation effectively increases the wealth of the nation, and also means less waste of resources to remanufacture items. It's giving people who could not afford goods, those goods at lower costs, and it's also encouraging others to buy new goods they might hesitate to buy because they know they can cash them out later.

So arguably it's good for the nation.

How to we resolve this dichotomy: promotes illegal activity and is below community standards for good faith effort to prevent that activity versus promotion of healthy commerce at a mega scale.

Hmmmm. Hell if I know. A freind of mine had his skis stolen. One assumes they probably went on e-bay. He also bought a pair of skis to replace them on e-bay at a below wholesale price. Coincidence? Ebay has lots of legit merchandise but it's a good place to sell stolen stuff too.

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

Re:Pawn Shop versus Fence.

[mike2R (721965)]

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

The difference is that the DMCA makes it crystal clear that YouTube is meeting it's obligations as long as it takes down infringing content when the copyright owner points it out.

This was a deliberate decision made by congress, aimed at allowing businesses like YouTube to have a sane set of rules to follow. If Viacom don't like it they should convince congress to change it's mind. They don't think they can so they're asking the courts to "interprate" the law until it says what they want.

Your reasoning is perfectly valid, but it isn't for the courts to decide since the legislature have passed a law on exactly this issue.

Re:

[Antique Geekmeister (740220)]

Google took on the responsibility of censoring content for the Chinese government (http://www.breitbart.com/article.php?id=D8FBCF68 6 &show_article=1, and numerous other articles on it). The question is thus not whether Google can censor: the question is *how much* they'll do it.

Google gave up the righteous stance of being unwilling to censor when they went along with political content censorship: the decision will haunt them in this and similar situations, where the content doesn't have the protection o

Re:Anlogous to Slashdot vs Scientologists

[OECD (639690)]

Viacom doesn't want to get into the buisness of tracking down users individually.

And that's exactly what this is all about. They're shoveling against the tide. They won the right to have the premptive say in what is or is not a copyright violation, but belatedly realized that it's a hell of a lot of work (ironic, since it actually mirrors the "opt-in" provision of all earlier copyright laws). Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

Re:Anlogous to Slashdot vs Scientologists

[TubeSteak (669689)]

Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

While Viacom (IMO) is on the wrong side of the law, Google/YouTube may have potentially created a problem when they instituted filtering for media companies that are willing to make a licensing agreement.

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

Viacom is going to make the argument that since YouTube has it, they should be forced to apply it on Viacom's behalf.

Re:Anlogous to Slashdot vs Scientologists

[sumdumass (711423)]

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed to someone else not having permision? Currenty, the person who can give permision has to say "hey, you don't have my permision" then goto the appropriate chanels to get the content removed if and when the user doesn't.

Now suppose as part of the user agreement to Youtube, It says you post only what you have copywrite to or permision to use from the copyholder. How are they going to verify the copyright is theirs or that the user has permision to use it? They need to contact the copyright holder. But the copyright holder isn't always clear when the posting consists of a few clips of some obscure show or scenes from some show that doesn't readily make it obvious what the show is. Are they now supposed to have a team of people that reviews every show, movie, song, book, whatever else that can be copywriten in order to scan ever file uploaded in order to see if it is someone elses and how to contact them to verify someone has permision?

It is the copy owners job to determine if their work is being used against their rights acording to the right given by the copyright. It is there job to give notice and request it stop. Google having some op in service is a way for the copy owner to let google/youtube know who does and who doesn't have permision to use a certain piece of copywriten work outside of someone saying they have the right to do so.

Re:

[kripkenstein (913150)]

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

They always had the capability. They could have, in 1998, made posting a video have to pass a 'moderation' step (performed by human beings).

Yes, such a set would be costly, and yes, it would be prone to error - but so is their current technological solution (perhaps less costly, but still - not cheap in any way!).

It's funny. Laugh.

[Short Circuit (52384)]

As someone else pointed out, pasting text articles into forum articles is related to the kind of copyright violation issue Viacom is suing over.

So someone posting the comment of the article in the Slashdot discussion, considering the article isn't slashdotted, is, well, funny. But it illustrates that Slashdot is subject to the same types of copyright violation.

IIRC, CmdrTaco and friends already had to deal with it once before, with the Scientologists. (Though that wasn't a copypaste of a linked article...)

Re:

[squiggleslash (241428)]

Not really sure where he gets off on the conservatives vs justices thing above, because the decision in the Betamax ruling in 1984 was essentially made by the so-called liberals on the supreme court, and opposed by people like Reinquest. Betamax, indeed, was an expansion of fair-use, which isn't something Congress had explicitly ruled upon in any way relevant to the Betamax case.

Be that as it may, what, exactly, is the evidence that the court is going to rule against YouTube even if it shows it did obey

Digital Rights Act

[geekbeater (967717)]

As the opinion piece clearly points out, a deal was struck by law in 1998...now one of those parties doesn't want to have to hold up its end of the deal. (Viacom self monitoring of content providers) It is always frightening when the courts make law, of course it is rightly obvious that is not their intended responsibility to do so...but the oversight of lawmakers has been usurped by their fear of not being re-elected...no one in congress wishes to show leadership...i.e. "rock the boat" as it were , heaven forbid if they can't stay on the DC party circuit.

Re:

[rm999 (775449)]

It's more complicated than that. From the economist:

"The legal situation is ambiguous. At issue is America's Digital Millennium Copyright Act, which became law in 1998, when Google, founded that year, was unknown and YouTube did not exist. It includes a "safe-harbour" provision for anybody who removes copyrighted content as soon as the owner requests it.

YouTube has been doing that--most notably a month ago, when Viacom demanded that 100,000 clips be taken down. But the safe-harbour clause applies only as lo

Trias politica

[remmelt (837671)]

You better be thankful that the courts do "make law" as you describe it. Laws passed down by the government can never take into account all the circumstances of your specific case. They hardly ever see how the law may be used or avoided, even though the law making process takes so long.
All laws are judged in a public court, and mostly impartial judges are there to see if your case fits the law in question or not. This is the way the trias politica works, and it works well. What's sometimes even more importa

Wrong arguments....

[zappepcs (820751)]

While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

I say that because Google/YouTube is one of the few companies that actually wants to provide such services. They have the right business model to do so, and they are making stars out of ordinary people. There is some evidence to show that YouTube sites et al will replace network television in short order if network television continues to suck and user generated content continues to get better. Mashups will make the 45,000+ channels of on-demand YouTube content even more coherent, and thus more attractive to the average viewer.

Back to the question on the table. The article clearly shows that what Viacom is pissed off about is that they have to look for the infringement on their own, or PAY YouTube to do so. Personally, I think Viacom is just whining because they are being hung with their own rope!

IMO, it would benefit the industry, the country, the world if YouTube wins. I say this because on-demand content is the future, and not the kind where you are paying DVD rental costs for each view. The on-demand video industry will replace television eventually, but it cannot grow to that size if the Viacom's of the world are allowed to destroy it before it gets off the launching pad.

Re:

[Telvin_3d (855514)]

The major issue with what you are saying is that YouTube is a distribution model, not a production model. Once the TV stations are gone, who pays for the shows to get made? Who foots the bill for $100,000+ episodes? If YouTube wins, it may be a good thing for free speach, but it might also be the end of one of the most powerful sources of entertainment ever created.

Re:

[heinousjay (683506)]

People will do it for free! And it'll be better than the commercial crap everybody hates but downloads anyway, because it'll be done only with pure motivation! All those video blogs of people picking their nose while discussing the latest developments in their crusade against disease-free personal areas will provide our entertainment.

Re:

[sumdumass (711423)]

Maybe this is just like the pixies in the buble gum forest. If you don't believe hard enough you won't see them.

Re:

[Telvin_3d (855514)]

As someone who has been involved in small scale DIY productions, I have to thank you. I have not laughed this hard in a while. Your sarcasm is truly breathtaking. ... it was sarcasm, wasn't it?

Re:

[zappepcs (820751)]

Here is how I see it happening: First, aspiring film makers and video stars will work to get 'discovered' via their work on YouTube. Second, some shows that 'production model groups' won't put on TV will get aired via YouTube (first as an experiment, then as a shared revenue model with YouTube). Third, more popular 'free agent' content makers will get corporate sponsorship, just like you see for sport figures etc. Fourth, syndication mash-ups will garner sponsorships for presenting channeled content from Yo

Re:

[Telvin_3d (855514)]

All of this is a nice dream, but there are a few issues. First, you are still assuming that TV is going to be around as the cash backbone of the production industry. Going through your four point first paragraph;
1 - Aspiring filmmakers and video stars discovered on YouTube. Discovered by who and for what? If YouTube and direct distribution win over the traditional methods (which is inevitable), who is going to be discovering these people and who what? Yes, millions of people on the internet will happil

Re:

[cooldev (204270)]

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.

If YouTube is successful and sets a precedent, I hope you are happy with watching reruns for all the stuff created between ~1900-2007, because everything else will likely be created by India and China, with serious DRM protecting their content.

Re:

[richie2000 (159732)]

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.

Here's an offer you can't refuse: Show me one single independent academic paper that conclusively proves this thesis and I will Paypal you $50 USD.

(The reason I can offer you this wager with impunity is because I can link to close to a dozen academic papers, in various languages, proving the opposite. Here's my favourite, in Swedish: http://www.ulfpettersson.se/2006/06/27/upphovsratt en-som-incitament-en-inkomstanalys-av-kreativa-yrk en/ [ulfpettersson.se])

While you Google your life away, ponder this: When the US had a copyr

Ironically

[eclectro (227083)]

Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.

Re:

[limecat4eva (1055464)]

The lasting legacy of this administration will be conflict and unrest engulfing everything from Istanbul to Islamabad. Bush will be remembered more for his neglect, incompetence, and tolerance of failure than for his appointments to the Supreme Court, which are frankly forgettable in the disastrous broader picture.

Re:

[VGPowerlord (621254)]

Yeah, but at least we can still watch Jon Stewart mocking Bush on YouTube. Get some priorities man.

Not if Viacom keeps asking Youtube to pull them down... particular if Youtube isn't pulling them, as they can then be found liable under the DMCA for not complying with takedown requests in a timely manner.

Re:

[Antique Geekmeister (740220)]

I'm not young. And Iraq is becoming the new "Godwin's Law" in electronic discussions.

But the young'un has good points on every single issue he or she raised. Look again at those issues if you can find time: even the Canada soft timber one was a solid gripe. Complaining about government subsidies in a trade partner is great, but the US lost the court cases on this 3 times and imposed an illegal tariff in direct violation of NAFTA as punishment. Then when the US lost its case in the WTO about tax breaks for c

Re:

[king-manic (409855)]

Do you mean when the tarrif that was put in place because canada was subsidising their lumber industry and allowing them to undersell american mills like the chinese and japanese did witht he steal industry durring the previous decade when it colapsed?

On this particular point you are wrong. WTO ruled there was no subsidy. The difference between the two industries aren't government subsidies but entirely different models. Canadian logging companys pay less to log on crown land then US logging do for a simili

Who didn't see this?

[shrapnull (780217)]

Even before Mark Cuban stated that whomever bought YouTube would become a "marked" company, how many of us genuinely thought that YouTube could succeed with millions of leechers benefiting from loose standards under the guise of "Fair Use" and no income?

Google _had_ to expect this. They probably consulted Lessig _prior_ to purchasing the startup. The thing is, this is the showdown that we all expected. Does 'Fair Use' exist? Are content providers liable for member uploads? How is YouTube above the laws that Napster collapsed under? According to the "big, bad DMCA" the _victim_ has to prosecute, which in this case is Viacom, and by the same standards, they should be forced to go after individual users (uploaders) that are at fault, like the RIAA.

The real issue at hand is that copyright law is in complete disarray today. It has an identity crisis that makes such a risky purchase on Google's part worth pursuing on the off-chance that they can score several million more users and page impressions, while still weathering a lawsuit of this magnitude.

The justices will ultimately determine who the winner/loser is, not Congress. This is a rare stage in history where the "intent" of the law will determine its true meaning and either empower or enslave the people going down one path or the other.

Re:

[Petey_Alchemist (711672)]

"The real issue at hand is that copyright law is in complete disarray today"

Tell me about it.

We have extensions left and right. Fair use and the first sale doctrine are slowly disintegrating.

Someone needs to remind Congress and the Courts that the point of the intellectual property system is not to set the terms under which the public may redistribute artistic work, but rather ensure that the artist gets some renumeration.

"To promote the progress of science and useful arts, by securing for limited times to

Re:

[VGPowerlord (621254)]

I'm surprised you didn't mention that laws are also eroding the "limited time" part of that directive.

Right now, if I were to self-publish a book right now, and I live for another 50 years, that book won't enter public domain until 2127 (2127 is not a typo). If I were to sell it through a publisher, it still wouldn't enter public domain until 2077.

That number will increase the next time Disney... er... I mean Congress entends copyright.

Re:

[zootm (850416)]

But this isn't even about fair use! Fair use doesn't even protect YouTube here - they do not have a good fair use case for the use of the content. What they do have, though, is a provision in the otherwise-horrid DMCA which says specifically that they are not responsible for the content posted by users, they just need to take it down when asked. That's what's under debate here.

WWSVD -- What Would Siva Vaidhyanathan Do?

[haaz (3346)]

Yes, what would Siva Vaidhyanathan [slashdot.org] do?

This and the whole filesharing thing...

[wile_e_wonka (934864)]

...trying to stop these is like trying to stop the Missouri River. Give up. People obviously want this technology; give it to them, and figure out how to make money from it.

Re:

[Antique Geekmeister (740220)]

Really? Tell that to New Orleans, where they're fairly successfully stopping the Mississippi, and tell it to the Dutch, who've successfully stopped the Atlantic Ocean.

It's amazing how long you can succeed in holding back something "unstoppable". It's not always successful, but people can and do live their entire lives in the areas at risk.

Lawrence Lessig, familiar name?

[Talennor (612270)]

Since when is Lawrence Lessig introduced on Slashdot simply as "a law professor"?

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

Re:

[TodMinuit (1026042)]

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

So they should have introduced him as, "Lawrence Lessig, a bias law professor"?

Re:

[Bodrius (191265)]

No, he should be introduced as "Prof. Lawrence Lessig", and a short explanation of who he is should be in the summary, with some background links for context.

Much like Bruce Schneier is presumed to be a recognized authority in cryptography and security, Lessig is universally recognized as an influential authority on the field: copyright, software and IP in general. Whether he is right or wrong, his opinion most likely will carry more weight in and out of academia than other random law professors.

Mentioning

Congress polices constitution; Courts make law

[evought (709897)]

Great, so SCOTUS remands Constitutional issues (copyright extension) back to Congress, and then wrests legislative power away from them. Dubya sets up his own judicial system in Gitmo. Soldiers playing cop in Iraq. FBI playing "secret agent" at home. The Patent and Trademark Office weighing in on National Security. WTF? Next thing you know we'll have corporations determining foreign policy.

The problem is volume

[edwardpickman (965122)]

Youtube's business model has depended on copyrighted material for roughly half it's content. Their stance is tell us what you don't like and we'll take it down. Well they are effectively asking the copyright holders to police their site. Viacom will have to create an entire department just to police Youtube. Youtube benefits from the traffic while Viacom takes on the expense of tracking down copyrighted content. Let's say I start a TV network based on old TV shows. Half are in public domain and the other half are copyrighted. My policy is is you complain about a specific episode I'll stop broadcasting that episode. It's even worse with Youtube because it's like tens of thousands of TV stations running at the same time and even if they take down the episode some one can post it again minutes later. It's an impossible situation for Viacom. The only option other than fighting it is to let them run content for free. If they do that the advertisers will refuse to pay when large numbers watch commercial free postings. There's already been a drop in commerical revenues. The networks are facing a loosing battle and what it means is eventually little or no new content. In the old days just for primetime the networks would do three hours or more of content with even more non primetime content. Now nearly half of television is paid advertisements and a lot of the rest is reruns. The average for primetime content is less than two hours and dropping and a lot of that is reality TV. Network TV won't survive in the long run. People may not post and file share lesser shows but they will the popular ones and those are the profitable ones due to commercials. Take away the profit and TV goes away. The only other option is going to a BBC system where tax money is used for broadcast TV and the budgets of the average show is pocket change.

Re:

[grmoc (57943)]

Yup. Welcome to the internet and the new paradigm.

I have little sympathy-- They want absolute control over the works, for 70 years, despite the obvious fact that this is not what the market wants! The market wants a more dynamic approach to content acquisition. If they'd embraced the technology, instead of fighting it, then they wouldn't have to deal with the consequences of the law which they pushed for.

Instead of content on demand, we have a seeming dearth of good programing, and an increase in the amount

YouTube Summer of Art?

[zotz (3951)]

"That being said, Youtube is doomed eventually, maybe this case, or another."

I am not so sure...

YouTube Summer of Art anyone?

Put up some nice prizes in several categories. Contest rules like so:

1. Make and post videos in some category. License must be copyleft.

2. Put all "raw materials" that went into the video up somewhere like the internet archive. (Google could host for free as well I guess.) This is for reuse by all in the next contest that will be held.

3. Winners determined. (How? Most popular on YouTube itself? Some other way?)

4. Winners get a nice budget to make more copyleft videos.

Whatever.

If the "content" industry insists on hamstringing the tech industry, the tech industry might need to fund alternate content. Content that can't be used to hamstring new tech but would rather promote new tech while that same new tech promotes that content.

all the best,

drew

http://www.youtube.com/watch?v=vcaf2ThG7q4 [youtube.com]
UFO seen in skies over Winton!

Grokster is in favor of YouTube

[Petey_Alchemist (711672)]

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

Let's look at the holding:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirma- tive steps taken to foster infringement, going beyond mere distribu- tion with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the deviceís lawful uses.

This does not apply to YouTube. YouTube, by actively discouraging infringers by being *overzealous* when pursuing alleged infringers (see Chung, Anshe; Crook, Michael), and plasting the site with warnings, and setting annoying upload limits that are shorter than television episodes, is not conducting itself in any manner remotely analogous to Grokster.

Technologically, YouTube is more analogous to the Napster case (centralized database, ability to terminate users). But Napster was never found guilty--it was just found that an injunction could be filed against them, and the legal costs forced bankruptcy.

I do not see Viacom winning this case, and I am surprised Lessig didn't opine similarly.

Re:

[julesh (229690)]

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

That's not Lessig's point: his point is that in making the Grokster decision, the court effectively created new liability for an action that wasn't covered by legislation. This is something they've previously shown themselves unwilling to do. If they do the same thing in this case (i.e., create new liability that doesn't originate in legislation but which protects copyright holders more than the legislat

Horrible Characterization of Grokster

[IanDanforth (753892)]

Having sat in on the oral arguments and read the decision I can tell you that the reason the court was unanimous in ruling against Grokster had almost nothing to do with the technology. There was clear evidence that the founders created a business model expressly to allow copyright infringement. It was, in fact, a fairly narrow ruling that did not condemn any underlying technology, but made clear that there was a responsibility of business to respect copyright, and that knowingly enabling piracy for profit

If Viacom is Smart...

[Stanislav_J (947290)]

...then they are just looking for a big payday from Google's deep pockets, and are using the suit to force them into some sort of deal the way some other content providers have done. Realistically, there is no way to effectively police millions of clips uploaded on a daily basis for copyright violations any more than Slashdot could police every single post on its site to see if there is anything infringing, libelous, or somehow illegal. And don't forget, YouTube is NOT the only game in town -- they may be t

Re:

[VGPowerlord (621254)]

Indeed. He is also well known for being lead counsel in Eldred v. Ashcroft [eldred.cc]. For those of you who don't know, Eldred v. Ashcroft was an attempt to get the Sonny Bono Copyright Term Extension Act overturned for, among other things, being unconstitutional. The appropriate text from the constitution is thus

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Alas, SCOTUS did not agree, which

Re:

[Antique Geekmeister (740220)]

No, I'm afraid not. It's easy to tell on even a casual glance whether a video has nudity or pornography. It's quite awkward to search for copyright: verifying the copyrights alone is a job for a seriously large legal department, especially with "fair use" laws or policies.

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[Siguy (634325)]

Your argument would make sense if youtube just had obscure and unknown copyrighted clips showing up. If it were just random BBC shows no one has heard of. But when episodes of South Park, the Simpsons, Family Guy, etc etc show up, no, you do not need a set of lawyers to figure out what's going. And I'm not even talking about video mashups and parodies and other gray areas. The fact is that Youtube makes no effort to block completely obvious copyright infringement when they already clearly have the capabili

Re:

[hey! (33014)]

The DMCA protects passive storage - think web hosting companies.[emphasis mine] YouTube obviously has knowledge of what's up and filtering is implemented in a lot of places, including MySpace (with approximately equal volume). In short, YouTube is arguing that it can sell content to users (by advertising to them), but doesn't itself know what's on.

"DMCA protects passive storage" is a pretty narrow restatement of the safe harbor protections of DMCA.

I think it's more accurate to say that the provider cannot