On behalf of Lindsey Simon, who for some reason can't sign in.

There are a lot of views about Viacom v. YouTube that I have floating around in my head, and to be honest, I'm not always sure that I can make coherent sense of them. On one hand, I sympathize a lot with the copyright holders in the case because I do think that YouTube (and the Internet in general) makes it incredibly difficult to enforce the rights. And the fact that the copyright holder in this case is Viacom, a giant media conglomerate, doesn't make a difference to me. The rights of the copyright holder should not vary depending on who the right belongs to. But on the other hand, I do think that there is a substantially non-infringing use to YouTube, one that implicates the freedom of expression. So I recognize that there are important policy interests involved here.

But there are a couple of issues that concern me. First, I'm not entirely comfortable with YouTube qualifying for ISP immunity. I think that ISP immunity is very important, but at the same time I think there is a distinction between an ISP like Comcast that opens up the entire internet, and a website like YouTube that only opens up their own site. To me, YouTube has more direct control over user access than a general ISP, and for that reason I think the control aspect plays an important role in determining what facts and circumstances YouTube knew. My personal view would be to grant ISP immunity conservatively in situations like this.

I am also concerned about the potential fair use defense that YouTube may assert. While I acknowledge that copyright law is inadequate to address many of the modern issues that have arisen due to new technology, I don't think that changing the meaning the fair use is the place for the accommodation to occur. I am fundamentally uncomfortable with allowing one stakeholder group, because of its size and popularity, to set the copyright law. Because there are so many important policy issues on both sides, I feel that the solution needs to come from the legislative branch. Congress has ability to hold hearings, etc, that are necessary in order to reach the proper balance.

If I had to choose, I think my gut reaction would be to come down on the side of Viacom. In my mind, I can't help but analogize to tort law on common carriers. If you operate a service to the public, then you bear the risks. The same goes for YouTube--if they want to operate a website that so easily allows for copyright infringement, then I think they bear the risk for infringement lawsuits.

Lindsey Simon