Yesterday, news came out about Viacom suing Google for $1 billion over alleged video copyright infringement on YouTube. With some dust settling, I thought it would be helpful to recap some of the analysis out there. I’m pulling this roundup mostly fro…

“you are forgetting that the DMCA Safe Harbor provision only applies to hosts. I would anticipate that part of Viacom’s strategy will be to question whether YouTube reasonably qualifies as a host. Unfortunately, the DMCA does not do a great job at defining a host (it was written in the late 90s), however I believe that it did not intend for a service such as YouTube to be considered one. See my post above (#39) for the three arguments against YouTube being a host. As PJ correctly points out, one of the arguments against YouTube being a host revolves around the transcoding of videos into FLV format. I don’t see how the traditional definition of a “host” as contemplated when the DMCA was drafted would apply to a service that formats content. Essentially, YouTube is directly involved in the infringement not only because it has a significant financial incentive but because it directly facilitates infringement through the prepartion of the content for display. It is not as if users are simply uploading their content to a YouTube server where other users can download it in raw format. YouTube is involved in all aspects of the infringment: putting content into a format that enables it to be played and shared via YouTube’s player and then providing tools to easily organize and locate content. And to top it off it is benefitting financially by showing advertising.

Using Napster as a comparison, Napster simply provided a “directory” of where infringing content was located. It didn’t host it, didn’t transcode it and actually didn’t benefit much financially (although it did raise substantial funding which counts). On the surface, it seems to me that Google is facing a serious legal challenge.”

It sounds like unless Google strikes a deal they will be in for a world of hurt.

lawyers win

Kazaa is still in business and Joost only came to life after Zenstrom and Friss paid 20 Million of their own money in the $125 million suit against Kazaa.