The DMCA provides a "safe harbor" for Internet companies that take down content that they've been notified infringes on another party's copyrights. YouTube's supporters have argued that even though the site's founders might have suspected that some of the videos on the site were illegally uploaded, they couldn't really know for sure until they'd been served with an official takedown notice.
Technically, most videos—even your home videos—become copyrighted at the moment they're created. Thus it wasn't a video's copyright status that YouTube had to determine but whether it had been uploaded by someone who had been authorized to do so. Some YouTube clips of TV shows and movies had clearly been uploaded legally—Viacom itself was putting clips up on the site. Other videos, meanwhile, may have been considered legal under the fair use exception of copyright law (news videos, for instance, may have fallen under this clause). Viacom itself had trouble deciding which videos were on YouTube legally; it occasionally sent YouTube takedown notices for clips it had itself uploaded. "If Viacom itself can't get it right—when it holds the copyrights and some of the videos were uploaded by itself—how the hell is Google supposed to know which videos are legit and which are not?" TechDirt's Mike Masnick argues.
That's a fair point. And it could have helped YouTube's case—except that the e-mail evidence makes clear that the company's founders were reluctant to take down videos even when they were positive that they were uploaded illegally. When Hurley told his partners that they needed to reject Bud Light commercials (PDF), Karim at first complied. But then Chen responded (PDF), "Can we please leave these in a bit longer? Another week or two can't hurt." So Karim put 28 Bud commercials back on the site. In another e-mail (PDF), Karim says that he decided to keep up a news clip; "let's ease up on our strict policies for now," he writes. Hurley responds, "OK man, save your meal money for some lawsuits! ;)" and then adds, "No really, I guess we'll just see what happens."
What does happen now? In 2008, Google implemented a "digital fingerprinting" system to spot and take down copyrighted material on YouTube. In its filing, Viacom says that it's satisfied with this system—in other words, its only remaining quarrel is with the YouTube of yesteryear. It sure seems hypocritical of Viacom to go after a system that it also saw as a key promotional tool for its videos. But Viacom's hypocrisy is not on trial here; YouTube's actions are, and it's difficult to read through the record without concluding that YouTube was playing very fast and loose with the rules.
As Fred von Lohmann of the Electronic Frontier Foundation points out, a Viacom victory in this case could substantially weaken protections for a range of Internet companies. If a court rules that Web firms are only safe from liability if they implement rigorous copyright filtering systems—and not if they merely take down material they've been told is unauthorized—then search engines, auction sites, "cloud" apps like Google Docs, and all kinds of other services could be rendered illegal in their current forms.
In other words, the stakes are bigger here for Google than for Viacom. In the end, the search company might decide it's best to settle the lawsuit out of court and forever forget about YouTube's original sin.