[Infowarrior] - Viacom's argument on YouTube ignores DMCA 'Safe Harbor'

[Richard Forno]

Viacom's New Argument Against YouTube: Embedding Videos Removes Safe  
Harbors

http://techdirt.com/articles/20080528/0108041242.shtml

While we already discussed Google's latest response to Viacom's  
lawsuit against YouTube, Cynthia Brumfeld has picked up on an  
interesting point that's been overlooked: Viacom's amended complaint  
includes a slightly different argument as to why Google/YouTube are  
not protected by the DMCA's safe harbors, effectively claiming that  
YouTube takes an active role in transmitting the content. This is  
somewhat similar to an earlier argument that some made that YouTube is  
disqualified from the safe harbors because it transforms video from  
its original format into flash, but stretches it even further.

Even worse, Viacom brings up the issue of embedding videos. Of course,  
YouTube's embedding feature that allows anyone to easily embed a video  
in any webpage was one of its big selling points. Last year, we had  
raised the question (that still hasn't been answered) whether or not  
it was copyright infringement to embed an infringing video into your  
own site (even though you don't host the content at all). Viacom seems  
to be claiming that by enabling this act of embedding is infringing.  
Why? Because it's YouTube serving up the video, rather than the  
original uploader.

That's a huge stretch by any imagination and hopefully the court will  
toss it out. Otherwise, it effectively nullifies the entire safe  
harbor provision of the DMCA. The point of the safe harbors are to  
protect the platform provider for the infringement of its users. If  
the court accepts Viacom's claim here, then it completely throws out  
that clear meaning of the safe harbor provision. It basically says  
that any service provider who "hosts" content that is accessed via  
another site is now guilty of copyright infringement, even if the  
company is never alerted that the content infringes. That goes against  
the clear meaning and purpose of the safe harbor provisions.