A small battalion of public interest groups filed an amicus brief on Monday on behalf of YouTube in its battle with Viacom. The latter accuses the Google-owned company of massive, even "brazen," copyright infringement of its content. While much of the he said/she said in this huge case centers around whether Youtube or Viacom staff allegedly uploaded the lion's share of Viacom content to the video sharing site, the brief doesn't delve deeply into that war.

Instead these advocates take aim at what they see as Viacom's "dangerous and unnecessary" interpretation of the crucial "safe harbor" provisions in the Digital Millennium Copyright Act—those that take the heat off online service providers for copyright infringement under reasonable circumstances.

"Were [Viacom's] views to be endorsed by this (or any other Court)," they warned the United States District Court's Southern District of New York, "the profusion of online services that have benefited the public (as well as future ventures) would be imperiled by the threat of multi-billion dollar statutory damages awards like the ones Plaintiffs seek here."

The filers include the American Library Association, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Internet Archive, Public Knowledge, and five other groups. They've got a tricky job—getting past the "smoking gun" accusations that Viacom makes of YouTube, and trying to get the court to see the big issue: the harder it becomes for a service provider to paddle into that safe harbor, the more exposed it will be to killer lawsuits from big content.

Disqualify me

At stake is how broadly the safe harbor protections in Section 512(c) of the DMCA should be extended to service providers like YouTube. These safe harbors include a "knowledge disqualifier" clause which keeps a service in safe harbor as long as it doesn't have "actual knowledge" of some infringing activity on its servers, doesn't see red flags or "facts and circumstances" that make the activity obvious, and acts to deal with the copyright problem once it becomes clear.

Then there's 512(c)'s "control and benefit disqualifier," which triggers the safe harbor only when the service provider doesn't make any money "directly attributable to the infringing activity." The law also grants this kind of protection when infringement takes place because a user has stored material on the system or network in question—"storage at the direction of the user" is the legal language.

Viacom says that YouTube has practiced a policy of "willful blindness" towards the thousands of infringing Viacom clips that showed up on its site. Its staff turned a blind eye to this in a bid to hold onto knowledge disqualifier protection. "They determined to embrace the avowed pretense that the hundreds of thousands of clips on YouTube that were stolen from popular movies and TV shows were actually owned by the uploading users," Viacom attorneys charged in their petition for summary judgment, citing internal YouTube e-mails.

"[T]he copyright fringement stuff," one Youtube manager allegedly wrote, "I mean, we can presumably claim that we don't know who owns the rights to that video and by uploading, the user is claiming that they own that video[,] we're protected by DMCA for that. [W]e'll take it down if we get a cease and desist [i-e., a takedown notice]."

But the amicus briefers counter that, whatever management at YouTube thought was going on, Viacom's standards for "knowledge" are very risky The media company's "expansive notion of the knowledge disqualifier" would tempt copyright owners to abandon takedown notices in favor of blanket accusations of infringing, they warn.

"In fact, in Plaintiffs view, if an employee of a service provider were to come across a newspaper article stating that a substantial amount of infringing activity were going on somewhere on her service, her 'knowledge' would potentially strip the service provider of safe harbor."

Controls and benefits

These advocates also worry about Viacom's argument that YouTube was "vicariously liable" because it enjoyed a direct financial benefit from infringing activities on the site, and didn't do enough to stop them. The company could have found infringing clips, Viacom says, by more community flagging, digital fingerprinting, and manually searching for keywords linked to copyrighted content.

"Indeed, until October 2006, YouTube employees sporadically engaged in just such term searches for copyrighted material," Viacom's petition argued. "But they removed only some of the infringing content they found, and left other blatantly infringing clips on the site when they thought the increased site traffic outweighed the risk of getting caught."

What the interest groups say they fear, however, is that this line of reasoning could create an impossible burden for online video sharing. In the face of this "cavalcade" of requirements, they've asked the court, "how can a service provider ever be certain it had done enough to satisfy every copyright owner intent on shifting the burden of copyright enforcement onto it?"

Viacom finds the EFF's position unconvincing, to say the least, accusing the advocacy group of supporting "copyright theft" in a statement given to Ars. "Consistent with their unsuccessful defense of Grokster and other businesses built on unlawful conduct, the EFF has once again taken an extremist public position in support of copyright theft," said Viacom VP of media and editorial Jeremy Zweig. "They simply rehash Google's claims and broadly misrepresent Viacom's position. The EFF brief offers no new insight or perspective, and does nothing to change the evidence that YouTube was clearly and intentionally built on the theft of copyrighted content, in stark violation of the law."

You've been served

Finally, the brief is particularly nervous about Viacom's argument that 512(c)'s user storage provisions weren't designed for YouTube. The law was "intended to protect services like Web hosts that passively provide server storage as an empty vessel for someone else's websites or other activities," the media giant wrote. "It does not protect companies that actively operate the websites as online entertainment centers."

But this "bizarre construction" would have given the DMCA the power to kill a host of startup online experiments right after its passage in 1998, the advocacy groups counter, among them Yahoo!'s message boards, which allowed users to post content, and AOL's online bulletin boards as well. If Viacom's "cramped interpretation" of Section 512(c) were allowed to prevail, a wide variety of innovative cloud storage enterprises would lose safe harbor protection.

"Congress meant to protect more than just the most primitive kind of 'plain vanilla' Web hosting services," they wrote. The point was to foster the growth of "new businesses on the Internet. The flourishing of innovative services to host user generated content online has, in turn, afforded the public unprecedented opportunities for free expression online."