Vanderbilt University – Law School

Vanderbilt Law Review
Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, 60 Vand. L. Rev. 1559 (2007).

    In this article, Trevor Cloak begins by introducing the start-up of YouTube and how it soared in popularity to eventually be purchased by Google for its advertising revenues.  He then continues by describing how it is potentially protected by the DMCA given its status as a qualified ISP.  Cloak devotes a section to describe copyright law prior to the DMCA and how issues were dealt with before the safe harbor provision could be applied toward the liability of certain companies (ex case: Playboy Enterprises, Inc. v. Frena, p. 1567 and Religious Technology Center v. Netcom Online Communication Services, Inc. p. 1568.)  Netcom was ruled not directly liable for infringement because it didn’t directly facilitate the infringement.  Automated processes did so without the knowledge and deliberate uploading of the operators.  Questions were raised howeer, if it received and financial benefit from the infringing material.
    YouTube may or may not have been considered to be a Direct Copyright Infringer depending on how the legislation is interpreted (prior to the DMCA) (p.1572 – use Netcom case as example).   In addition, however, YouTube could be guilty of Vicarious Copyright Infringement (p 1573-1576).  The DMCA as a result, allows these charges to be lifted and for the promotion of creativity.
    This article provides a few new interpretations on the ability of YouTube to seek safe harbor protection.  I hope that the historical cases that it provides as examples will be of aid in determining how the courts have traditionally viewed the copyright issues.