This article written by Lawrence Lessig, a professor at Stanford University, sees Viacom’s lawsuit against YouTube as preempting Congress’ preeminent role in determining copyright law.  Lessig cites to case law and the Constitution to conclude that sound policy and history support deference to Congress when major technological innovations alter the market for copyrighted material.  He opines that Viacom is trying to play an end run around Congress and the 1998 Digital Millennium Copyright Act (“DMCA”) with its lawsuit against YouTube. 

    He explains that the DMCA was intended to protect copyright owners while making it possible for internet service providers to avoid crippling copyright liability.  It achieved this result by immunizing the internet service provider from liability for infringing material posted by its users as long as it removed the infringing material upon notice by the copyright holder.  According to Lessig’s article, the statute expressly places the burden of policing content on the copyright holder and not on internet service providers like YouTube.  Through its complaint, Viacom is trying to shift that burden onto YouTube. 

    Lessig claims that Viacom, not satisfied with a Congressional statute, is turning to the courts to “update the law.”  According to this article, it is not the role of the courts, but rather the role of Congress to modify the DMCA’s safe harbor provision.  He states that Viacom’s lawsuit will result in the internet facing years of uncertainty in litigation and possibly undermining the intent of Congress to forge a cooperative relationship between copyright holders and online service providers through the DMCA’s statutory framework. 

    The underlying assumption in this article is that YouTube will have a valid defense under the DMCA to Viacom's claims of infringement.  This paper will critically analyze Lessig's fundamental assumption that the DMCA provides a viable defense for YouTube.  An important part of this analysis will be Lessig's argument that the court should defer to Congress.  Specifically, the paper will keep in mind Congress' intent in enacting the DMCA and its balancing of the rights of copyright holders with the need to protect internet service providers who are the pioneers of an emerging means of communication.