Viacom v. YouTube and Infringement Monitoring in the DMCA: Who Should Have the Burden?

In March 2007 Viacom filed a $1 Billion lawsuit alleging that YouTube “actively engage[s] in, promote[s] and induce[s] [copyright] infringement”. Viacom properties such as South Park, Mean Girls and An Inconvenient Truth have been posted on YouTube.[1]

For their part, YouTube has asserted a seemingly ironclad defense: Under Section 202 of the Digital Millennium Copyright Act, a “service provider shall not be liable…for infringement of copyright” as long as it “responds expeditiously to remove” infringing content.[2] YouTube argues this provision provides a full answer to Viacom’s claim since they immediately respond to takedown requests.[3]

Viacom’s legal claim is that YouTube is not doing enough to protect rights holders, despite conformity with the DMCA. As summarized by one copyright attorney: “Viacom is asking…something that the letter of the law does not require. Viacom is really asking the judge to do something extraordinary here.”[4]

So it seems YouTube is safe. But should it be? Posts of protected material indisputably drive YouTube site traffic. Despite this the DMCA puts the onus on copyright holders to spot infringements. YouTube therefore has legal license to facilitate, and profit from, copyright infringement on a massive scale - as long as it responds to takedown requests “expeditiously”. On its face this seems tremendously unfair. Thus it is argued that the DMCA unjustly puts the burden of infringement monitoring on IP holders. I, however, assert that this position is untenable.

Characteristics of copyright make it effectively impossible for sites like YouTube to monitor infringement: First, copyright is ubiquitous - somebody has copyright in almost everything posted; second, whether a specific use of copyrighted material qualifies as “fair use” is difficult to ascertain. The monitoring task is clearly smaller and more manageable for each individual rights holder. For example, each rights holder can focus on monitoring its most profitable titles, which they have the greatest interest in protecting. Also, if a rights holder feels a post constitutes “unfair use” it can request takedown – this is far more practicable than having websites determining what qualifies as “fair use”.

Further, requiring rights holders to monitor infringements benefits personal privacy. Notification and removal of an infringing post does not require any inquiry into the identity of posters (only of those complaining). If, however, the monitoring burden were placed on websites, determining the identity of posters would be strictly necessary.

Finally, YouTube provides a free service to rights holders: A forum to either post their IP or passively acquiesce to having it posted. Rights holders benefit by gaining access to an extremely broad audience, and can ultimately profit from this. The burden of infringement monitoring can be seen as a fair trade for the broad exposure that entertainment properties get from being posted.

Given the benefits to rights holders of wide dissemination of IP, it is deeply problematic to assume that IP holders in general do not see the monitoring burden as a reasonable tradeoff. Indeed, the balance reached by the safe harbor provisions of the DMCA seems the only practicable solution.