Before and After

I don't think that the actions of You Tube either before or after Google's implementation of advanced digital filters constitutes inducement to infringe under Grokster. I don't think it reasonable for the court to expect You Tube to check every single uploaded file to see if it infringes. I don't think it was then or is now possible to affirmatively verify non-infringment of each uploaded video. I don't think it reasonable for the court to expect every single employee of You Tube to have acted with no improper intent. Despite the fact that a few (several? many?) employees may have thought and even expressed in email their approval of copyright infringement through the You Tube site, I do not think that this adds up to the overwhelming evidence of Grokster that the entire point of the enterprise was to facilitate and actually induce infringement.

I give a great deal of credit to Google for cleaning up You Tube's act. I think that some of the technology they have developed and implemented, while creepy, will prove to be invaluable to the content industry's attempts to police the internet for copyright infringements. Google has also implemented some technology that strikes a good middle ground - after identifying a background song to a video as an unauthorized use of a copyrighted work, for example, instead of simply blocking the audio to that video, Google now allows for the copyright holder to sponsor a pop-up ad so that the viewer may purchase the song if they like.

You Tube has proven to be an important addition to the internet, and has served an extremely important role in US as well as foreign politics in recent years. It is a vital platform for free speech that should be protected as such. I strongly believe that the default should be (under both Sony and Grokster) that there is no secondary liability when there is a substantial non-infringing use. The non-infringing use of You Tube is, at the absolute very least, substantial.

(It bothers me to no end, by the way, that this vital platform for free speech is owned by Google. Maybe the US government should take over You Tube. Or better yet, the UN. We could have a free and open public forum with substantially fewer copyright problems!)