Questions with few answers...

I believe that this case comes down to the question: What is the duty of care of UGC hosts in preventing copyright infringement? Google argues that making a good faith effort is enough to fall within the DCMA safe harbor provision. Of course, Viacom contends that Google falls outside the DMCA safe harbor by intentionally turning a blind eye to copyright infringement.

Google may not be able to successfully argue that YouTube enforced its DMCA policy in good faith at the early stages, but that has somewhat changed with the current ownership and practices. The arguments for infringement between 2005 and 2006 are stronger than now, but I think it’s unclear whether the court will care more that YouTube has a better DMCA policy now or whether it will care more about Viacom’s role in secretly uploading the infringing videos itself.

I believe that regardless of the outcome, the artists wishing to gain internet exposure on YouTube cannot win here. Litigation will only increase YouTube’s cost, which may require YouTube to charge fees for uploading videos, which in turn may reduce the exposure of new artists. If Viacom prevails, YouTube will be forced to require barriers to posting almost any content, such as proof of copyright, license, or permission agreements, and perhaps require fees which the average artist may not be able to pay.

If the court rewards damages to Viacom, however, equaling the amount of royalties that could have been paid under a typical blanket license arrangement for use of the content, it might encourage media companies and technology companies to solve the problem with a more efficient scheme (as opposed to lengthy litigation or bullying on the internet by the company with more money).

This case poses other questions than simply resolving the current dispute. How should the artists be protected and better compensated under the current copyright protection scheme? How and when should courts intervene in technology development while the rest of us wait for copyright protection to catch up?