The Story
In the ongoing case of Viacom Vs. YouTube, Google, some new and potentially very deadly evidence has just come to light. According to internal emails from YouTube, not only did the company know about the plethora of copyrighted material on the site, but some of its employees may have been the uploaders.
If YouTube did have knowledge of the copyrighted material and did not act promptly to remove it, then it may be liable under the DMCA. Last month, Veoh won a case against Universal Music Group when a judge ruled that despite the large amounts of illegal material on the Veoh site, the company acted as it was supposed to and removed material that was prohibitively copyrighted. Thus Veoh was ruled to be protected by safe harbor.
Damning For YouTube
My legal opinion: YouTube is in a whole lot of trouble. Unless the judge decides something really strange and off-kilter, Google is going to have to pay out a hefty fine or reach some sort of settlement. Viacom could easily argue that YouTube used its content without permission to attract users to the early versions of the site.
There are some who think Viacom could argue that YouTube should have been acting more promptly to take down copyrighted material as so much of it was often on the front page of the site. But that assumes that YouTube essentially has staff babysitting the site. The whole point of the safe harbor portion of the DMCA is to make it so websites don’t have to spend tons of money policing what third-parties do. But that’s insignificant compared to the emails that came to light.
