Based on my reading of the complaint, Tim Wu’s speculation on Viacom’s strategy seems about right:
Viacom seem to be preparing to argue that, since Youtube plays such a role in hosting the videos, and doing things like screening porn, the videos are not, in fact “user-directed content,” the hosting of which is protected by 17 U.S.C. 512(c). The main challenge for that argument is the text of 512(c), which protects “user-directed content” or “the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”
That sounds like Youtube, since as the name suggests, Youtube stores content at the direction of a user. However, no one knows whether little steps, like making thumbnails, or screening sometimes and sometimes not, or offering search services, might take Youtube out of 512(c)’s protection. The strongest argument that YouTube is not covered depends on the text. The idea is that Youtube is going beyond “storage” of videos, and is in fact that active agent here, not the user. That reading of 512(c) leaves most Web 2.0 sites with alot less coverage than they may have though they had — that is, all sites other than naked web hosting sites. Facebook, Flickr, Myspace — all of these sites do more than just “store” information . Are they covered by 512(c)? Stay tuned.
It seems to me that the courts would be wading into a legal swamp if they bought this argument, because it’s hard to see how you’d draw a principled distinction between what YouTube does and what a lot of modern web hosts do. Most modern web hosts provide a variety of useful software layered on top of the basic web-hosting service. Many of those facilities (blogs, photo galleries, video- and audio-hosting services, etc) could be used to infringe copyright.
If the courts rule that YouTube is liable for infringement because its software isn’t passive enough, then the courts will have two unappetizing choices. One is to argue that any service that offers more than bare web-hosting functionality is ineligible for safe harbor protections. This could conceivably cause web hosts to stop offering easy-to-install software. The even worse option would be to craft some rule about which kinds of data manipulation voids protection under 512(c). Given the pace at which web services are evolving, it’s hard to imagine them crafting a rule that won’t look anachronistic in five years.
It seems to me that a stronger argument would be to focus on YouTube’s advertising revenue. That would at least offer the courts a bright-line distinction: companies that are paid directly by customers to host content are eligible for the safe harbor, but companies that offer free advertising-supported hosting services have to police the content on their sites. That isn’t an outcome I particularly relish, but at least it’s clear, and it does have some basis in statute.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.