Is the DMCA harbour safe for YouTube?

In an op-ed piece in the Washington Post, a lawyer for entertainment giant Viacom writes what amounts to a thumbnail summary of the company’s $1-billion lawsuit against YouTube for copyright infringement. In a nutshell, Michael Fricklas says that the case boils down to whether the video site — now part of the Google empire — is protected by the so-called “safe harbour” provisions of the U.S. Digital Millennium Copyright Act.

Obviously, Fricklas’s argument is that it is not. Why? Because, he says (and Cynthia Brumfield has more on his argument at IPDemocracy), YouTube knows that infringing material is uploaded to the site, it has both the ability and the duty to monitor and remove this content, and yet it not only leaves the content on the site but makes money from it — which is a no-no under the DMCA, and removes the protection of the “safe harbour” provisions. Ipso fatso, as the legal types (of which I am definitely not one) like to say when they have proven their case.

This may sound like a slam-dunk, and other observers — including billionaire Mark Cuban — certainly seem to think YouTube is on shaky ground when it comes to safe harbour protection. But others aren’t so sure. For example, Electronic Freedom Foundation lawyer Fred von Lohmann has said that simply making money from potentially infringing content is not a clear breach of the safe harbour, at least according to some lower-court rulings.

Some of what Fricklas seems upset about is the structure of the DMCA itself (which, it’s important to remember, was essentially created by content owners like Viacom). He says “Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites.” And yet, that is the way the DMCA works: copyright owners notify a site and the site removes the content.

In other news, one of the chief architects of the DMCA thinks that it is flawed (primarily because of the focus on DRM, as Michael Geist noted in an email to me) and likely needs to be reworked.