The Viacom vs. YouTube copyright infringement case puts the spotlight on two principles in copyright law. Can the defendant find a haven in the DMCA Safe Harbor Provision? Will it get a fair hearing using the fair use doctrine?

Viacom has filed a $1 billion copyright suit against the online video leader for copyright infringement, claiming that it had identified more than 150,000 clips on YouTube that violated its copyright and asked for them to be taken down. In response, YouTube's parent company, Google, countered with a defense that centered on two issues: safe harbor and fair use.

What is a safe harbor?

The Digital Millennium Copyright Act (DMCA) contains a portion (OCILLA – the Online Copyright Infringement Liability Limitation Act) that provides online/Internet service providers (or OSPs/ISPs) with "safe harbor" if they promptly take down content that someone claims infringes on his/her copyrights.

Designed to benefit copyright holders, OSPs and customers alike, this powerful copyright protection tool for the Internet allows content owners to demand that online service providers remove access to copyright-infringing material available through the OSPs. Meanwhile, the OSP gains protection from liability by simply removing the material, acquires clear procedures for removing and restoring material, and gets a safe harbor against copyright infringement claims. Customers benefit since material will not be removed unnecessarily by an OSP which hasn't been slapped with an infringement complaint.

The OSP gets a safe harbor as long as it:

·         Does not have actual knowledge that the material on its system is copyright infringing

·         Acts expeditiously to remove access to the material upon obtaining such knowledge or awareness

·         Does not receive a financial benefit directly attributable to the infringing material if it has the ability to control access to it

·         Has a Designated Agent registered with US Copyright Office to receive notifications of alleged infringements and makes available to the public the Agent's contact information

·         Adopts a policy that terminates, in appropriate circumstances, its subscribers and account holders who are repeat infringers

·         Follows standard technical measures used to identify and protect copyrighted works

The OSP must also follow detailed notification and counter-notification provisions by which material alleged to be copyright infringing will be taken down and put back on.

Does YouTube qualify for a safe harbor?

Google claims that YouTube is covered under DMCA Safe Harbor because it can't be held liable for infringing material posted by is users if it immediately responds to take-down notices it receives from rights holders – which it does. Viacom claims that this is not enough and that, even with YouTube's new anti-piracy technology, it still shifts the burden of identifying infringing content to the rights holder.

What is fair use?

There are instances in which using a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. Fair use is a doctrine in US copyright law that describes under which copyright material may be used without requiring permission from the rights holders. It allows an author to use another author's work legally if such use passes a four-factor balancing test.

1.       What is the intent and essential character of the use? Did it fulfill the intention of copyright law to encourage creativity and enrich the general public – or did it merely "supersede" the original work for personal profit? To comply with the fair use doctrine, the new work must show that, in incorporating the copyrighted content, it advanced the progress of the arts. And its use must be interpreted as "transformative" rather than "derivative" and mainly for educational, rather than commercial, purposes.

2.       What is the nature of the copyrighted work? Facts and ideas belong to the public domain. The particular way they're expressed is protected by copyright. This factor weighs the social usefulness of freely available information against the appropriateness of copyright.

3.       What percentage of the original copyrighted work was used in the new work? While less use (in relation to the copyrighted work's entirety) is generally fair use, courts have also looked into the secondary user's intent: copying as much as necessary (even entire material) for the intended use weighs more for fair use than using just a few words that represent the core of the original work. Also, using samples or portions of recorded music in a new work, previously accepted practice, is now a controversial fair use issue.

4.       What effect did the infringing use have on the current and potential market value of the copyrighted work? In evaluating this, courts consider two things: whether the new work amounts to an exact duplicate of the original and veritable substitutes it in the market, thus harming the rights holder's ability to exploit his work; and whether market harm exists not just because of this direct substitution but also because of potential licensing.

Does YouTube fairly use copyrighted content?

Some have pointed to the limited length of YouTube's uploaded videos (avoiding works in their entirety), brief, tightly edited clips that prove or illustrate points (representing "reporting" and "educational" purposes), alerts to YouTubers to copyright laws, and general compliance with the spirit of copyright law as evidence that YouTube may be able to raise a fair use defense when challenged. Others see its business model as an attempt to acquire, exploit and profit from others' content – without paying for it – a model that wrests control from the actual creators and that's responsible in large part for Google's huge profit margins.

The central question is perhaps this: Can YouTube control uploads before they are identified as infringements? The answer may come (or not) when the Viacom lawsuit is resolved. Whenever it comes, it will surely change the landscape of copyright law.