This law review article analyzes whether or not YouTube will be able to defend itself against Viacom’s claim of copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).  The author examines the case law concerning the specific requirements of the DMCA including: 1) qualifying as a service provider; 2) the actual or apparent knowledge test; 3) the direct financial benefit test; and 4) the ability to control the infringing activity test.

       What is particularly helpful to my paper is that the author provides extensive information on YouTube’s business operations.  The article details the automated and user generated nature of YouTube’s site which is relevant to the DMCA’s knowledge and control tests.  It also provides a discussion of how YouTube generates revenue.  An analysis of YouTube’s revenue stream is relevant to the financial benefits test required under the DMCA.  The article’s discussion of YouTube’s business will be relevant to analyzing whether YouTube should meet the DMCA threshold and core requirements, which are fact dependent.

       The author opines that the site’s easy to use technology provides a ready platform for showcasing original and transformative videos.  Against this backdrop of user creativity, it is clear that YouTube’s website also contains unauthorized copyrighted works.  However, the author provides evidence of YouTube’s good faith efforts to run a legitimate business not premised on the unauthorized use of copyrighted works.  Such information is pertinent to an overall sense as to whether YouTube’s purpose is to simply pirate other companies’ videos or to provide a venue for sharing new and original video content.

       The author concludes that given the uncertainties surrounding how the court may interpret the various requirements of the DMCA, it is unclear whether YouTube will be afforded safe harbor protection.  For the purpose of my paper, this article will be helpful in providing factual information as well as citations to various court decisions which I will read and analyze so that I can reach my own conclusions concerning the application of the DMCA to YouTube.