In countering Viacom’s $1 billion suit against YouTube, Google relies on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) to shield it from liability for third party copyright infringements. That’s stretching it a bit says OUT-Law.com.

In Viacom’s words, “the YouTube strategy has been to avoid taking proactive steps to curtail the infringement on its site, … shifting the entire burden … of monitoring YouTube on to the victims of its infringement”, and Struan Robertson on OUT-Law argues that, following a Supreme Court ruling against file-sharing firms Grokster and Streamcast in 2005, if this amounts to promoting the infringements, Google could be liable.

The safe harbour provisions were designed to protect ISPs and web hosts acting (as I see it) as innocent conduits for third party publication. Then along come services like YouTube where the “service provider” is in most respects the publisher rather than a dumb network of pipes. Should these publishers not be obliged to police their sites?

Added: As Lawrence Lessig points out, the case should be decided on the meaning of s512(c) of the DMCA. The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing.