Burden to find infringements

I think that the outcome of this dispute heavily depends on fact-finding about Google’s actual knowledge because YouTube seems to meet the technical requirements of §512’s safe harbor defense. If Viacom fails to establish the evidence of Google’s actual knowledge or “have to know” circumstances, Google will obtain safe harbor protection.

However, it would leave something uncomfortable on my mind. YouTube and other OSPs may be able to escape liability just by complying with takedown provisions. By contrast, Copyright owners need to keep monitoring infringing sites even which already alerted. That is unfair. It is probably true that copyright owners are better situated to find infringements than OSP. But, a burden currently imposed to copyright owners is tremendous. The better measures I think are that initial burden is to be allocated to copyright owners and subsequent burden to find the same contents as already notified is to be allocated to OSPs.

By the way, YouTube’s satisfaction of §512(c) requirements doesn’t follow that Google will win. I think YouTube will be still open to inducement liability, which is also fact-dependent.