While much attention has been paid to Viacom’s high profile filing of a lawsuit against Google for â€œmassive copyright infringementâ€ little has been said about the grounds on which YouTube currently legally operates, and why the lawsuit is frivolous unless an amendment is made to the 1999 Digital Millennium Copyright Act.
DMCA Section 512 which covers liability relating to online material contains the following notable points:
[A] provider shall not be liable for…direct infringement, based solely on the intermediate storage and transmission of material through a system or network controlled or operated by or for that provider, if the transmission was initiated by another person; the storage and transmission is carried out through an automatic technological process, without any selection of that material by the provider;
[M]onetary relief under section 504 or 505 for contributory infringement or vicarious liability, based solely on transmitting or providing access to material over that provider’s system or network, other than conduct described in paragraph (1), if the provider…does not have actual knowledge that the material is infringing or, in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;
At the same time, another part of the same section may land Google in trouble if Viacom is able to prove beyond doubt that YouTube’s success is directly attributable to infringing material and that YouTube is doing nothing in spite of being able to control this activity.
[D]oes not receive a financial benefit directly attributable to the infringing activity, if the provider has the right and ability to control such activity.
Whether YouTube is found to be guilty or not, the ruling in this case will most certainly get lawmakers to take another look at the DMCA.