There was *very* specific evidence of specific videos that YouTube Executives were talking of, and specific knowledge demonstrated by Google employees. In fact, Chen and fellow co-founders were debating whether to remove specific copyrighted videos and decided to leave it up a little longer until the owners notified them. Google employees specifically forwarded links to copyrighted videos to each other. Google employees were asking their managers if certain videos should be removed, and they were told to leave all the music videos and news clippings.

If these aren’t specific enough, I don’t know what is. So the DMCA safe harbor “see/hear no evil” defense is indeed out the window.

Google’s “main” defense is their DMCA defense (as evidenced by it being the first argument in their motion for summary judgment) , which is actually airtight under the current law / precedent. Viacom really only has a case if the judge decides to deviate from the current DMCA precedents.

So saying things like “At the very least, it seems that YouTube no longer falls under the DMCA Safe Harbor provisions” and “So much for the DMCA defense” are really misleading.

Viacom needs to prove “Actual Knowledge” of the infringement of the “Specific” videos alleged in the complaint (not just general knowledge of infringement) to kick Google out of the safe harbor provisions.

In such a circumstance the question might become; “what are we really dealing with here?”

Is it exactly what it seems to be? A company has copyright protected content that has illegally made its way onto a website, and the said company dosnt mind certain protected content on the site but the company wants to exercise its rights of control over which protected content goes on the website.

Or is there more then meets the eye? The website is providing an invaluable service to the said company by providing a place to view the companies content on demand. The company has recognized the enormous value in this, but their interests are not perfectly served because they see much of their content on the site provides little to no profit for them. The company finds themselves in a predicament because they are better off with the status quo then to not have any of their content on the website, but they are worse off then if they had the kind of control they would like to have. The brilliant solution is to fully acquire the website and run it their way. The brilliant method of doing that and avoid having all their content dropped due to confrontation with the website owners is to sue the website owners for copyright infringement and hopefully collapse its value to them and then grab it for themselves.

This creates the question about damages. Has the said company been disingenuous in their dealings with the website because on the one hand they don’t want to lose all access because it is so valuable to them, where that total loss of access would have completely addressed their copyright concerns? Have they in fact suffered no real damages in the over all scope of what the website has done for them and are they in fact simply trying to use the courts to acquire what they otherwise could not have? Could Viacom have just told You Tube “remove all our content and continue to do so?”

Could You Tube have done that and saved this whole mess? Is that something Viacom absolutely did not want to happen? Is Viacom looking to have the best of both worlds by having found a way to hogtie You Tube just enough to have the grounds to litigate their way to the ownership of You Tube? How damaged is Viacom in the end?

I’m no huge fan of all that Google does by any means. Not at all. But, on the other hand I am far less a fan of the big media companies who are still seeking to crush all that stands in their way of maintaining the kind of control over their content like the old days before they decided that digitization was the way to go. I am not a fan of companies who seek to use the courts as a “side door left” method of acquiring what they could not otherwise properly have. I feel that way primarily because it seems abundantly clear those tactics and policies will do nothing in the long run to solve what the media companies see as their problem. The kind of issues that You Tube and all kinds of file sharing create for media companies are not currently solvable at all in a traditional sense.

It would be like trying to claim an airplane should be paying road tolls because they go right over the parts of roadways that require tolls from travelers going in that direction. Of course that sounds like lunacy but thats because we recognize that once airplanes came along that form of travel when it was used created a completely different playing field for travelers. What the media companies cannot seem to get through their head is that once we went digital that too changed everything and like it or not they themselves created this new playing field and trying to erect toll booths in the sky just isnt going to work. Its an old fashioned solution that will never work for a new problem thats never going to go away.