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Yesterday’s top tech policy story was the copyright lawsuits filed by Viacom, the parent company of Comedy Central, MTV, and Paramount Pictures, against YouTube and its owner Google. Viacom’s complaint accuses YouTube of direct, contributory, and vicarious copyright infringement, and inducing infringement. The complaint tries to paint YouTube as a descendant of Napster and Grokster.

Viacom argues generally that YouTube should have done more to help it detect and stop infringement. Interestingly, Viacom points to the privacy features of YouTube as part of the problem, in paragraph 43 of the complaint:

In addition, YouTube is deliberately interfering with copyright owners’ ability to find infringing videos even after they are added to YouTube’s library. YouTube offers a feature that allows users to designate “friends” who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation…. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners. Moreover, YouTube still makes the hidden infringing videos available for viewing through YouTube features like the embed, share, and friends functions. For example, many users are sharing full-length copies of copyrighted works and stating plainly in the description “Add me as a friend to watch.”

Users have many good reasons to want to limit access to noninfringing uploaded videos, for example to make home movies available to family members but not to the general public. It would be a shame, and YouTube would be much less useful, if there were no way to limit access. Equivalently, if any copyright owner could override the limits, there would be no privacy anymore – remember that we’re all copyright owners.

Is Viacom really arguing that YouTube shouldn’t let people limit access to uploaded material? Viacom doesn’t say this directly, though it is one plausible reading of their argument. Another reading is that they think YouTube should have an extra obligation to police and/or filter material that isn’t viewable by the public.

Either way, it’s troubling to see YouTube’s privacy features used to attack the site’s legality, when we know those features have plenty of uses other than hiding infringement. Will future entrepreneurs shy away from providing private communication, out of fear that it will be used to brand them as infringers? If the courts aren’t careful, that will be one effect of Viacom’s suit.