What's ironic about this case is that in practice, YouTube currently seems to comport with the standard that Viacom wants. Viacom argues that Web sites should pay attention to "red flags" that indicate uploaded content may be infringing. After Google purchased YouTube in 2006, the company built a system called Content ID that takes down potentially unauthorized material by looking for just the sort of red flags Viacom has outlined.
Remember those parodies of Hitler fuming about trivial things like getting banned from Xbox Live? In April, YouTube began to pull many of those down. The site hadn't received a formal takedown notice before doing so; rather, it deactivated the clips because Content ID had fingered the videos as infringing. (The parodies used footage from the movie Downfall and added new subtitles.) In other words, YouTube pulled them down merely because it had doubts about the clips' legality, which is exactly the standard Viacom wants. In fact, as parodies, many of those clips would likely have been deemed legal under the fair-use exemptions to copyright law. Fortunately YouTube's system allows parody makers to contest Content ID's rulings; many have since been restored.
Viacom says that it has no objection to how YouTube operates now—its beef is with YouTube's early practices. So why press on, when YouTube has reformed itself? Because a ruling in Viacom's favor would have much wider repercussions. It would shift the balance of power between Web companies and entertainment companies, requiring sites to essentially ask permission or seek licenses from Hollywood and the music labels before innovating. Some of the world's biggest Internet companies—not just YouTube, but also Facebook, Amazon, Yahoo, eBay, Flickr and others—would never have been able to get off the ground had they been required, as struggling startups, to constantly police their networks for potentially infringing material.
You might argue that the site's capacity to investigate its network is irrelevant; if startups are aware that their sites are filled with stolen stuff, shouldn't they do something about it?
Well, but who's to say what's stolen? Sure, YouTube's founders thought that that some of the stuff on their site didn't look legal—but we also know, in retrospect, that some of it was authorized, secretly uploaded by Viacom itself. Fortunately, there is a common-sense way to decide whether a certain video should be online: If the content owner objects, take it down. That system works pretty well as it is. Yes, this becomes more difficult when sites achieve the vast scale of YouTube, which now sees about 24 hours of video uploaded every minute. But innovations like Content ID show that instead of fighting about copyright in court, Web sites and entertainment companies can work together to solve the potential for mass copyright infringement. This is a much more creative and useful approach than a lawsuit, and YouTube's victory will ensure more such collaborative efforts between Web companies and entertainment companies. I'm sorry I ever argued that we should look for another way.