Is Google the Next to be Sued?

Since it received so much press coverage, I am sure that most people have heard of Google's recent acquisition of YouTube. A sizable issue that has been raised is whether Google will likely be sued due to possible copyright and trademark infringement located on the YouTube site.

In the past, private parties and large organizations like the RIAA and MPAA have sued dozens of web sites that feature infringing content. Even if we are to assume that YouTube does not market itself as a method of infringement (like in the Napster and Grokster cases), and even assuming that YouTube does not know that the infringing content exists, they are still amenable to suit since they profit from the infringement and they are in a position of control over the infringement.

In such a suit, Google and YouTube would have two likely legs to stand on. First, they could argue that they are not liable since it is not reasonable for them to examine the literally millions of postings, searching for infringing content. While this seems like a good argument as a practical matter, I am not aware of any case where a court actually agreed with such an assertion. There have been cases where such a defense was argued (i.e. the recent Marvel case involving a video game that allowed users to create custom characters, a miniscule percentage of which were arguably infringing), however these cases were all settled before a legal determination was made. A second defense is that YouTube may fall within the safe-harbor provisions of the DMCA. Whether or not this defense will work really depends on facts that are clearly not public, but given the extreme complexities of the DMCA, there is at least a substantial chance that the exceptions do not apply to YouTube.

Shortly after youTube was acquired by Google, several parties stated or implied on the record that they were gearing up for a lawsuit. However, no one has filed yet to date. Rather, Google has implemented a very interesting strategy. In stead of trying to fight with content owners, they either granted complaining parties an interest in the company, or simply removed whatever content was requested. In fact, literally tens of thousands of videos have been removed from the YouTube site since the acquisition. Conceivably, one could imagine that this may be the downfall of YouTube, since huge swaths of data may be removed and later posted on some future site that complies strictly with the DMCA and makes sure to decline to take profits or encourage infringing activity so as to avoid third-party infringement liability.