In today's technologically advanced world, video-sharing Internet sites ("VSIs"), such as Grouper.com, Bolt.com, and YouTube.com, provide free, unfettered access to clips of your favorite television shows and artistic performances, from Animaniacs to ZZ Top. With movie clips viewed over 100 million times each day, YouTube is the behemoth of these sites5-a major accomplishment considering the site entered the video-sharing market in May 2005. Two friends, Steve S. Chen and Chad Hurly, created YouTube after they experienced difficulty posting a video online. Taking advantage of online blogging's popularity, the two distinguished their site by coupling quick and easy video posting with the ability for site users to comment on particular clips. Their plan worked, and soon YouTube was attracting over 15 million viewers per day. The site's popularity has continued to grow, and now the website receives over 100 million hits daily.10 Indeed, YouTube is so popular that Google Inc. ("Google") purchased the site for $1.65 billion to acquire advertising revenue. Although this purchase sent Google's stock soaring, it could ultimately prove to be the company's undoing if it does not thoroughly examine the legality of YouTube's current and future operational framework.
VSIs exist in a gray area of the law, and as such, they are prone to copyright infringement lawsuits by big-name corporations and artists, such as Universal Music Group and Sony BMG Music. If litigated against successfully, VSI owners could be liable for millions, if not billions, of dollars in damages, effectively putting them out of business.' So the question arises: Given the current operational framework of video-sharing Internet sites, are owners of these sites liable for copyright infringement when copyrighted material is illegally posted by their users?
The Digital Millennium Copyright Act of 1998 ("DMCA") primarily governs this issue. This Act, established to prevent the problem of online copyright infringement, contains "safe harbor" provisions that protect Internet service providers ("ISPs") from liability if they meet certain criteria.16 Specifically, ? 512 of the Act precludes ISP liability as long as the ISP (1) adopts and implements a policy to remove repeat infringers, (2) informs users of this policy, (3) accommodates and does not interfere with "standard technical measures" used to protect copyright holders, and (4) meets the additional activity-specific requirements parsed out in the remaining subsections. For VSIs such as YouTube, which allow third-party users to store information on their systems at the users' election, this fourth prong requires that that the ISP (1) not have actual or apparent knowledge of infringing activity, (2) not receive a direct financial benefit related to the infringing activity when the ISP has the right and ability to control its users' actions, and (3) upon notice of infringing material or activity, "expeditiously" remove the infringing material. Many commentators have suggested that even though YouTube and other video-sharing sites implement policies to remove repeat infringers, inform their users of these policies, and remove copyrighted material upon notification by the copyright owner, the VSIs may still be liable for infringement.
The Digital Titanic: The Sinking of YouTube.com in the DMCA's Safe Harbor,
60 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss5/4