To relate it back to Tim Wu’s piece on history, innoculating an ISP for incidental infringements committed on its network is one thing. But allowing a service provider like YT to build a for-profit business model substantially off of infringement is quite another.

One other point I made by email to Mike – I’ve heard it said by several US commentators now that the DMCA safe harbor is not available to Grokster-type liability. That is, a site like YT would be exposed to claims of direct infringement, which could be entitled to the safe harbour as we’ve been discussing here and over at Techdirt, and the so-called “active inducement” infringement liability that was at issue in the Grokster case, which I’ve read is not subject to the safe harbour. I’m not certain whether this is the case (I only play a US copyright lawyer on TV), but more to the point, it has fallen off the map in any discussions about this since shortly after the Grokster decision was issued – all of the debate since then that I’ve seen has been about the DMCA issues.

Last point – have you noticed that company side lawyers are absent from these debates? I think they’ve learned that it makes no sense to engage with a community that is most interested in the warm glow of agreeing with itself. And I suspect they’re keeping their power dry until their clients decide what to do. This is in marked contrast to the early Napster days, when opinions were flying fast and furious on both sides of the debate. Also, we now have much better developed grassroots organizations like the EFF, and media access for them through outlets like Boing Boing, to circumvent the MSM, which perhaps did not give that voice enough profile in the Napster days.

It makes a difference.

According to Fred Von Lohmann of the EFF, who has been having the same back and forth over this with Mark Cuban on the Pho mailing list, it isn’t enough that YouTube knows *in general* that there is infringing activity. It has to be made specifically aware — i.e., through a notice-and-takedown letter.

As far as I can tell from his comments, simply deriving revenue from the content isn’t enough to remove the safe harbour protection either. Your point to Mike over at Techdirt about how much of YouTube’s content is infringing may come into play in a court case, but so far it isn’t clear how much is too much or how much awareness is enough to lose the safe harbour.

But at least you can take comfort in the knowledge that Mark Cuban is upholding your side of the argument :-)