Can YouTube take refuse under the "safe harbor" provisions of the DMCA? That is the question of the day it seems for the video sharing web site. YouTube has been accused of intentionally developing and making available a technology with the intent to allow their users commit copyright infringement. This issue is directly on point with a case brought before the United States Supreme Court, Metro-Goldwyn-Mayer studios inc. et al. v. Grokster, LTD., et al. in a peer to peer file sharing case.
The DMCA safe harbor provision grants a provider of "online services" immunity from copyright infringement resulting from creative works stored on its servers by users, so long as the provider satisfies the statute's requirements.
The real issue is whether users are placing their own content or that of others on the site. YouTube says it has implemented "technological mechanisms," including a "Content Verification Program," that are meant to locate and tag content so that it can be removed and blocked from future re-posting. YouTube can also make an arguments on the merits of the case based on the opinion in Grokster, where the court relied on a previous case holding, One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 p. 10-24. The court further held, copying technologies are acceptable if they provided "substantial non- infringing uses as well". This was the case when the TV networks sued Sony in the early 1980's for the invention of the VCR. The court held in that case that the only effect a VCR had on network TV was that of time shifting, and that in no way was the intent of Sony to allow users to intentionally violate the copyright act.
In this particular case, YouTube is not intentionally allowing for copyright infringement, but rather the inverse, where they have established policies and procedures to deal head-on with any potential copyright violation, including the development of technology built right into the web application.
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