One of Viacom’s core arguments against YouTube is that the DMCA takedown notices are not effective due to the large volume and rapid speed of user postings. However, isn’t this volume and user-based culture the reason why this safe harbor exists in the first place? This was the idea behind CDA §230, which created a safe harbor for tort liability for ISPs, recognizing that such liability would have a chilling effect on this new digital culture.
A peer to peer culture.
The same rationale sits behind the DMCA §512 takedown provisions, except as applied to copyright. However, now we have property rights in the mix. But should that really change the free speech equation? At what point do artifacts from television and film become part of our shared speech? One need only look to the culture of mashups and remixes that thrive in the YouTube environment to see the emergence of new art forms.
The conservative lawyer will vigorously defend his client’s assets from each and every infringement. A creative counselor will find ways to turn this new technology into a strategic advantage.
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I agree with many other commentators that Viacom filed the lawsuit against YouTube as they want to use such lawsuit as a negotiating chip or bargaining tools. In my opinion, what they really want is to put the burden of policing infringing materials on website to YouTube. This idea is annoying to me. This type of conglomerate which have gained so much benefits (which, in my opinion, too much) from us should be able to spend some money to do such policing without a fuss.
I do not care much about YouTube as they (with Google) have more than enough money to pay for any damages and will be able to generate more money in the future after the case is settled or final. I believe Google have done due diligence thoroughly before they decided to purchase YouTube and saw this type of lawsuit coming. I am worried for the smaller with lower budget websites that will have to get the burden of policing their websites should Viacom can successfully force YouTube, one way or another, to policing its website. It would be a sad story if these small websites are forced eventually forced to close down.
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