Indirect Infringement and the burden of the DMCA
Viacom alleges in its complaint that “Although YouTube touts itself as a service for sharing home videos, the well known reality of YouTube’s business is far different.” There clearly is copyright infringement occurring on YouTube’s website. However, after reading Grokster, YouTube may have a defense. Grokster references the holding in Sony Corp. of America v. Universal City Studios that “distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge.” This seems to be another argument that YouTube could make by bringing up all the ways that people use YouTube in a non-infringing way. The fact remains that there still are some videos on YouTube that are not infringing any copyrights, thus these such videos provide a substantial benefit for the public with no copyright holder incurring any harm.
However, I am sure that Viacom would rebut this argument by citing Grokster again. In Grokster, there were non-infringing works, such as Shakespeare, on the peer-to-peer network, but the Court decided that the evidence showed that there was more demand for the copyrighted works. This may also be the case for YouTube, but I think that it can be differentiated from Grokster because of its use of advertising. Grokster and StreamCast wished to capture the market that Napster left behind when it was shut down, and they flaunted this in their advertising. In contrast, although YouTube does advertise, it does not advertise in a way to promote copyright infringement. I think that YouTube would probably argue that since it promotes the posting of original works rather than copyrighted works, it should not be held liable like Grokster and StreamCast.
Also, Viacom further complains that YouTube places the entire burden on copyright holders to notify it of infringing works on its website. This burden is not imposed by YouTube, but by the Digital Millennium Copyright Act [DMCA]. The DMCA grants protection against liability to Internet service providers, while leaving copyright owners with only limited injunctive relief. This was an effort for Congress to balance the need for rapid response to potential infringement with the legitimate interests of end-users in not having material removed without recourse.
This burden which the DMCA created helps maintain the dichotomy between the benefit to society and the cost to the copyright holder. Congress seems to be saying with this Act that it is more important for the public to be exposed to things on the Internet than to automatically take possible infringing works down. The Internet has become a very useful and educational tool. If the burden, that the DMCA places on copyright holders, were to shift, then a precedent might be set which would affect the way people use the Internet. Regarding YouTube, although there is blatant infringement, there is also educational, self-expressive works on the website, and if such works were removed, then it would decrease a benefit to society. Thus, the education, that the Congress wanted people to receive from the Internet, only seems to be further enhanced by YouTube by getting a visual and audio component. In the end, although copyright infringement occurs on YouTube, shifting the burden to infringers, and causing website like YouTube to shut down would hinder the benefit to society, which is the primary purpose of the Copyright Act.