YouTube's Future - And Yes, it Has One

In 2006, Paramount Pictures partnered with other Viacom subsidiaries to sue YouTube (the online video-sharing site) for copyright infringement. Ever since, the nation’s newspapers, blogs and airwaves have been abuzz with commentary. Many commentators have taken the position that Paramount and Viacom are wrong on the law. YouTube, we are told, has no responsibility for the harm it causes; it is immune under the Digital Millennium Copyright Act. Other commentators, by contrast, have conceded that Paramount is right on the law, only to complain that a valuable and exciting distribution technology is about to be lost. In this short Essay, I argue that neither of these views could be farther from the truth. The DMCA does not protect YouTube because YouTube is not a “storage” provider. Yet YouTube will survive even without DMCA protection, because conventional copyright doctrines - including the rules of contributory and vicarious infringement and the defense of fair use - already create a balanced legal regime that will give YouTube the space it needs to develop while at the same time forcing it to do what it should have been doing all along: take steps that would, at a reasonable cost, reduce infringement without substantially interfering with legitimate use