news analysis Whether YouTube suffers the same fate as Napster may depend on the wording of a nearly antique law written long before video-sharing Web sites were envisioned.
The law is, of course, the Digital Millennium Copyright Act, or DMCA, which made its appearance in the U.S. Congress in July 1997.
That was a year marked by the arrival of Apple's Mac OS 8, Microsoft shares increasing in price by 150 percent annually, and Amazon.com holding its initial public offering. High-speed connections that enable video sharing were a luxury, and the Internet's total population hovered around 19 million people.
Today, more than 1.1 billion people use the Internet, and a huge percentage seem to end up viewing YouTube videos at least occasionally.
In its lawsuit filed on Tuesday against YouTube and its parent company, Google, Viacom claims that more than 150,000 unauthorized clips "have been viewed an astounding 1.5 billion times."
That may be true. But whether the DMCA's wording will let Viacom win -- it's asking for a permanent injunction (PDF) requiring Google and YouTube to stop enabling copyright infringement -- remains a surprisingly open question.
"I'm not aware that's been tested," said Melvin Avanzado a litigation partner at Jeffer Mangels Butler & Marmaro in Los Angeles.
Central to the question of Google's legal liability is the phrasing of a densely worded portion--Section 512--of the DMCA. It was drafted by Congress in the days when Web site hosting was a more static affair, and it doesn't clearly address a situation such as YouTube's. That didn't stop Napster from invoking Section 512, unsuccessfully, in its own legal defense.
Section 512's so-called safe harbor generally lets hosting companies off the hook for legal liability, as long as they don't turn a blind eye to copyright infringement and if they remove infringing material when notified. YouTube does the second part through a formal posted policy, and it prohibits uploads of unauthorized videos more than 10 minutes in length.
But what about the safe harbor's first requirement of not ignoring massive infringement? Viacom's complaint says, "YouTube has failed to employ reasonable measures that could substantially reduce, or eliminate, the massive amount of copyright infringement on the YouTube site from which YouTube directly profits." (For its part, Google says it's confident that YouTube has respected the legal rights of copyright holders and predicts that the courts will agree.)
Avanzado, the entertainment attorney, says he expects Viacom to argue that Section 512 doesn't protect YouTube. That's because the safe harbor applies only if the Web site does not financially benefit directly from the alleged infringing work.
"We know what financially benefits means, but every business operates to financially benefit," he said. "So then what does 'directly' mean? Does it have to be with that specific clip that they benefit from?...Those are the kind of issues, and I don't know that the act has been interpreted yet, as to what constitutes a direct financial benefit."
CNET News.com's Anne Broache contributed to this report.
