YouTube has to meet all the requirements to enjoy the DMCA safe harbor protection (§512(c)). One of the most important issues in this case is whether YouTube had actual knowledge of the alleged infringement. It seems difficult to deny YouTube’s actual knowledge of infringement in light of the content of YouTube founders’ emails, even if the provision requires service provider’s knowledge of the “specific” infringing activity.
Moreover, financial benefit exists where the availability of infringing material acts as a “draw” for customers (Fonovisa). Here, infringing videos were the major draw for the site and YouTube have earned actual ad revenues from the draw of infringing videos on YouTube. Also, the ability to block infringer’s access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise (Napster), and YouTube showed their right and ability to supervise by removing videos containing adult material, hate speech, violence etc. routinely. So, it seems to be difficult for YouTube to satisfy §512(c)(1)(B).
Even though there are many blamable conducts of Viacom in this case, e.g. it deliberately allows some infringing contents to continue to be on YouTube, Viacom seems to prevail against YouTube if there is no political consideration.
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