Ever seen this image? Does it make you sad? It makes me sad too. Unfortunately, we’re probably going to be seeing a lot more of it very soon.

Three weeks ago Veoh, an online video site similar to YouTube, won a suit against Universal Music claiming they had no actual knowledge that users of their site were uploading copyright infringing content on their website, thus they were exempt from liability under the DMCA.

Under the Digital Millennium Copyright Act (DMCA) 17 U.S.C. §512(c)(1)(A), a service provider cannot be liable for infringing material uploaded to their site as long as:

1. The services do not have actual knowledge that the material, or an activity using the material on the system or network, is infringing;
2. In the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
3. Upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

YouTube is currently facing its own legal battle over actual knowledge and copyright infringement under the DMCA. Recently, CNET reported that Viacom may have discovered evidence showing YouTube was aware it was infringing on the rights of copyright holders because employees of YouTube were among the users who uploaded infringing content. CNET also reported three sources indicated that, “internal YouTube emails indicate that YouTube managers knew and discussed the existence of unauthorized content on the site with employees but chose not to remove the material.” If this is true, YouTube will not qualify for protection under the Safe Harbor provision of the DMCA.

CNET also reports that Viacom employees also uploaded content to YouTube’s website for promotional purposes. But Viacom claims the full episodes of television programs, music videos, and promotional clips do not infringe on copyright law because they are merely clips, whereas, the content in question is clearly infringing.

YouTube claims, “how is a company supposed to know the difference between pirated and legally uploaded clips when companies like Viacom are among those uploading material?” –CNET.

It’s a good question. Is YouTube expected to scan every YouTube video in search of copyrighted content or can they claim ignorance and cover their eyes? CNET explains:

“One of the major complaints that content owners had about YouTube was that before the company launched its filtering technology, they were forced to file takedown notices for every instance of infringement. In some cases, an entertainment company could remove a popular clip, to see someone else upload it again seconds later.”

Even if YouTube were to improve its filtering software, actual knowledge will be the straw that breaks the camel’s back in this case. Veoh won its case only because it was able to show it lacked actual knowledge of the infringing content. If Viacom can show YouTube had actual knowledge of the infringing material, then YouTube will have a heck of a time proving it lacked actual knowledge that copyright infringing material was uploaded to YouTube.

If this case does make it to trial (I think Google, the owner of YouTube, will most likely settle) it could be instrumental in determining whether service providers like YouTube, Facebook, Twitter, etc. can be liable for copyright infringing material uploaded to their websites. The outcome of this case could not only affect online video sharing sites, it could also affect sites like Facebook, MySpace, Wikipedia, etc.

Anytime a website gives its users free reign to post content, it has to claim ignorance of infringing material to escape liability under the DMCA. Is this good for public policy? I think there’s definitely a public policy argument claiming that the limitations on liability for service providers is ridiculous. “Because I didn’t know it was uploaded on my site, it’s okay!?” Shouldn’t a website provider be required to know what’s on his or her site especially when that website is what provides the bread and butter for the table each night? On the other hand, Google would have to hire a lot of people to police their user generated content and it would be very costly for them to determine whether the user generated content is owned by the user or infringing on copyright.

What troubles me the most about this case is that the possibility that creativity could be impeded in the name of copyright law when the very purpose of copyright law is to protect and promote creativity. Those who use copyrighted material to create mashup videos on YouTube make some very creative content that is not only informative, but artistic. I understand that the bits and pieces some content creators use infringes on copyright, but there is a great deal of unique content on YouTube as well.

Overall, the internet it is like a bulletin board. Anyone can stick their push pins anywhere they like and add content to the board. There are very few rules stating what content is okay and who should be responsible for making sure the board isn’t overtaken with law infringing content. Should the person who owns the board be responsible or those armed with the push pins? Either way, I think the court should consider the immense value added by the mashups YouTube provides. Here are a few of the world’s favorite for a little reminder of why YouTube isn’t all bad.

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6. Digital Life after Death: Social Media and Your Digital Content Post Mortem
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