David A. Gurwin, a lawyer who specializes in technology, entertainment and media law for Buchanan, Ingersoll & Rooney PC, said that under U.S. copyright law, Viacom won't have to show that it's been harmed by the alleged YouTube infringements.
"It's the ability to control [one's own content], which rests with the copyright owner, and Google appears to be saying 'we know better than you what's in your best interest,'" Gurwin said. Google made a similar argument in the past when the company announced plans to digitize books and make them available online, he said. The company argued that such a move would benefit authors and publishers by disseminating works more widely and would increase market demand because people would read the books online then want to buy them for themselves, he said.
"Frankly, all that may be true, but in my view it's up to the copyright holder to make that decision," Gurwin said.
Google will likely defend itself, Gurwin said, by arguing that it is protected by the 1998 Digital Millennium Copyright Act (DMCA), which provides a framework to regulate copyrights in the world of electronic content. The DMCA gives copyright holders procedures to follow to protect their content when alleged violations occur and provides protections to cover unintentional posting of copyrighted materials. Google and YouTube will likely argue that they provide a service and don't actually post the content in dispute, using the DMCA as "a statutory shield," he said.
Viacom's lawsuit, however, alleges that once YouTube takes the submitted content from its users, it then copies it into its own software formats and places it on its own servers. In that case, Gurwin said, Viacom is "trying to allege that the Safe Harbor provisions under the DMCA don't apply because of their manipulation of the content" after it is received from users.
Viacom's entertainment brands include MTV: Music Television, VH1, CMT: Country Music Television, Logo, Nickelodeon, Nick at Nite, Comedy Central, Spike TV, TV Land, and more than 130 networks around the world, as well as MTV.com, comedycentral.com, VSPOT, TurboNick, Neopets, Xfire and iFilm, BET Networks, Paramount Pictures, DreamWorks and Famous Music.