Thanks for the well-thought out post. I just completed my JD and am taking the bar this summer, so I'm not quite ready to outgun anyone yet
I think you've hit the nail on the head on many of your points.
Viacom and thousands of others clearly see some benefit to using Youtube. As an avenue for revenue, it's obviously still in its infancy, but as an avenue for promotion, it is quickly becoming as important as other forms of traditional media.
On the other hand, we need to ensure that copyright laws continue to work to provide artists and distributors with the incentives they need to create high-quality work. America has been the home of an amazing body of art and entertainment for decades, enjoyed by billions across the globe, and the production of those works has coincided with a copyright regime that pre-internet has remained largely unchanged.
Previous disruptive technologies resulted in their fair share of messes, but the law eventually adjusted to a workable solution to balance the interests of content producers and consumers. We've had innovations like performance rights and mechanical licenses in response to radio and recorded music, just to name a few.
As both of us have noticed, however, the law continues to struggle with responding to the challenges of the internet. The biggest problem I see with complex statutory regimes like the DMCA is that they obscure the bigger picture, like we're discussing here. Courts get bogged down in discussions like "according to section A, subparagraph 3, a service provider as defined in chapter 9..." Courts also are very deferential to statutory language, reluctant to substitute their own wisdom for that of Congress. But the assumption is, as stated in the initial quote that I pointed out, that Congress carefully crafts its legislation, that the policy goals it seeks are inherent from the text, and that the law as a whole clearly reflects its intentions. Unfortunately, that has not been the case in copyright law over the past couple decades.
But it is what it is. It's difficult to predict how this lawsuit will play out. My guess is that Youtube will end up being required to take on a stronger role in policing content - incorporating and strengthening features like the audio fingerprinting technology you mentioned. It's simply too onerous to place all the burden of policing content on the content owners. Can't find the link now, but I've read that NBC Universal alone has three full-time employees on staff whose sole job is monitoring YouTube for unauthorized clips!
Automated systems for detecting infringement have different challenges than those that can ferret out porn and extreme violence. Those types of videos are apparent on the face - anyone knows something is pornographic just by watching it. Determining whether a clip is infringing isn't apparent on the face; it requires determining the ownership of the copyright and whether the user who is uploading is that owner or has authorization. I think, technology-wise, this could eventually be done automatically, but it's safe to say that without pressure from content owners, like this lawsuit, YouTube isn't going to take the time developing such mechanisms.
If the case settles before trial, I'd imagine Viacom would ask for something like this apart from any monetary payment. Even if the court finds that YouTube has been in compliance with DMCA requirements for safe harbors, that only shields them from monetary damages. A court could still issue an injunction, and courts have in the past crafted structural injunctions similar to what I mentioned above.
In my opinion, that would be the "best" possible outcome for this suit. Thoughts?