News: On John Battelle’s Searchblog, Fred von Lohmann concludes that YouTube is on “relatively firm ground” in its invocation of the DMCA safe harbor to protect against copyright lawsuits. While noting that “virtually no one in the Internet industry is on ’safe’ legal ground given the uncertainty in the law, von Lohmann asserts that “YouTube is working hard to keep its boat in sheltered copyright waters.”
In a different interview I’ved noted here already, Berkman Center’s John Palfrey sounded even more sanguine in his assessment of the DMCA defense: ”One answer is that a 1998 law, the Digital Millennium Copyright Act, set up a system whereby the Googles of the world have a chance to avail themselves of a safe harbor if they agree to take down infringing works once notified by copyright holders. In my view, this is exactly the kind of situation that this law was created to handle.”
Analysis: Lawyers, by their nature, are usually cautious in assessing the odds for success of a legal argument, particularly where courts have decided only a handful of cases. Even statutes that appear as clear as day might get interpreted to mean something else by a court. That said, I think the DMCA safe harbor defense for YouTube is very strong. I hope to talk more in depth about the reasons later, but the gist of von Lohmann’s and Palfrey’s analysis is correct.
