From Safe Harbor to Choppy Waters: YouTube, the Digital Millennium Copyright Act,and a Much Needed Change of Course

Authors

Lauren B. Patten

First Page

179

Abstract

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube and Google for infringing their copyrights.

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), specifically addressing the potential copyright liability of Internet service providers. The DMCA provides a series of "safe harbors" for certain activities of Internet service providers, ensuring limited liability so long as providers comply with the "notice and take-down" provision of the statute. To date, YouTube has been capitalizing on the safe harbors provided by the DMCA and has avoided liability for infringement. Although the DMCA protects Internet service providers like YouTube, it leaves copyright holders out in the cold.

This Note first traces the development of copyright law and the liability of Internet service providers from the Copyright Act of 1976 to the DMCA. The Author then evaluates potential copyright claims against YouTube and Google under both statutes, with special emphasis on the applicability of the safe harbor provisions of the DMCA. The Author then discusses the current legal status of YouTube, how the site has avoided copyright liability in the past, and how it fares under the more traditional fair use analysis. The Author concludes that YouTube should not be eligible for a fair use defense and argues that the site, with all of its far-reaching capabilities, should be held responsible for its infringing actions.

Recommended Citation

Lauren B. Patten, From Safe Harbor to Choppy Waters: YouTube, the Digital Millennium Copyright Act,and a Much Needed Change of Course, 10 Vanderbilt Journal of Entertainment and Technology Law 179 (2020)
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol10/iss1/3