You miss the big trick. DMCA says Viacom needs to list the items it owns copyright to and ask for removal of them. Viacom claims it cannot do that because users can are allowed to have private videos (which it cannot search for) and allowed to have closed distribution lists of friends (which it cannot get access to, and presumably can't fake friendship to obtain access to).

The Judge can't go along with Viacom on that because email providers would be required to filter email for potential copyright violations, (also closed list of recipients and also private).

People with private servers would have to open them up for scrutiny for potential copyright violations, (also closed, also private). Viacoms own internal servers are accessible only to their own people and may contain other people's copyright material.

So that argument is a non starter.

"YouTube strategy has been to avoid taking proactive steps to curtail"

And seemingly Viacoms strategy is to not take proactive steps to issue a DMCA claim either. Something the RIAA does with automated software! If they did Google could (and does) 'suspend' the accounts.

Without that Viacom are left with a 'we can't find our clips fast enough', well if Viacom can't find them, neither can downloaders, so the copyright infringement isn't happening! If the people can find the Southpark clips then so can Viacom!

Finally the biggest problem with Viacoms argument is this.

ALL VIDEOS ARE COPYRIGHTED BY DEFAULT, and Google has no way of knowing who the copyright owner is, or if they approve of the upload, unless someone sticks in a DMCA takedown notice.

Google will win this one easy, but perhaps we can fair use codified as an added bonus if the claim covers snippets of copyrighted work.

A billion dollars isn't the issue. Viacom could never prove that amount of damage. What they want to do is to force YouTube out of business. They want to force YouTube to do the impossible. It's not like the P2P music sharing where 99% of the music was ripped off from commercial sources. Viacom claims there were 160,000 violations. Out of how many videos posted?

Viacom wants to control their content. Which they are fully and unquestionably entitled to do. What they also want to do is to set up an unreasonable and unusable system to view this content. They will either a) charge a fee for it, in which case they'll have a system with few attendees (because it will be proprietary) or b) give it away, which defeats their claim of loss; or c) they could have commercials, which would drive people away even faster than a fee based system.

As an example of an unwieldy system, try watching Heroes on nbc.com. I tried, but one of the segments wouldn't load. So I skipped it.

For some reason, Apple gets away with their DRM. But as everybody comes out with their own DRM solutions, people will rebel. I'm not loading 40 bazillion players on my computer.

So the media makes their money, but do the true creators of the product make much? If any?

This lawsuit may be the beginning of the end for DRM.

It's free advertising for their shows.

For example the other day I was talking to someone about Beavis and Butthead, a funny cartoon show popular in the 90s. They had never seen it, I found a YouTube clip but it had been taken down. Therefore this person didn't see how funny it was and won't be buying any of the DVDs.

The old dinosaur media giants need to get with it. TV is dying, if I was in power I would have a 5 year copyright on TV. That's plenty of time to generate profits and would encourage TV stations to make more programmes and stop showing repeats.

Viacom makes shows people want to watch - why should Google make money from advertisements alongside the clips but not pay Viacom?

People are only watching because of the shows.

Google has made similar revenue sharing deals with other rights holders, there's no reason it can't do it here.

To Anonymous Poster #1: "Google has no way of knowing who the copyright owner is"

Yeah, right.

It can do what everyone else does, and search for "Jon Stewart", " on MTV" just like the rest of us. Poor argument.

Win, lose or draw, Viacom wins.

The end result of the lawsuit is that Google will be forced to place filters and or other mechanisms in place to reduce the possiblity that DCMA protected content will be restricted.

That is what they want.

Google is going to lose, even if they "win" the lawsuit and are protected by safe harbor.

"The end result of the lawsuit is that Google will be forced to place filters"

No such filter exists on the wider web, so I don't see how it can be invented just for YouTube.

If you disagree, show me a filter that can determine if the sender of a file has the rights to send that file. No such software exists in any part of the web, FTP, email attachments, youtube, ISP uploads....

So I can't see how Viacom can gain anything, worse what if they codify fair use of clips? Most of those clips are snippets afterall.

That's a disaster for them, if they make a DMCA takedown notice and the site is able to use 'fair use' defence to reply, then DMCA is dead, and Viacom will be back to civil copyright infringement lawsuits to take down each and every clip.

"It can do what everyone else does, and search for "Jon Stewart", " on MTV" just like the rest of us. Poor argument."

So you're reducing the problem to just removing Jon Stewart videos that match the query "Jon Stewart" "on MTV"?

Cool! Now that is something Google can do! If only Viacom would agree that that was enough.... And every other copyright holder on the planet for every other copyrighted clip for that matter.

And if only there was no collateral damage as a result as 'Jon Stewart of Tootings' wedding video is removed as the query gets too broad.

You see the problem with taking the most obvious clips, identified with the easiest to find tags, then trying to extrapolate those conditions to every copyright clip. It's not the reality of the problem, the 'Jon Stewart' 'on MTV' query is one Viacom can do easily itself and issue a DMCA takedown notice for.

I doubt you could even list all the shows Viacom has rights to, yet Google is expected to be able to know them, identify all episodes and locate clips of them without collateral damage to.

Viacom will lose.