CDT and a number of allies told a federal judge yesterday that Viacom's billion-dollar lawsuit against YouTube reflects a dangerous effort to pare back the crucial safe harbor contained in Section 512 of the Digital Millennium Copyright Act (DMCA). Congress enacted Section 512 (codified at 47 USC 512) precisely because it recognized that, in order to stimulate growth of new platforms for speech and e-commerce, providers of new and innovative services needed to reliable legal protections against the risk of being held liable for major damages any time users break the law. Section 512 says that if a service meets certain requirements, such as taking down specific infringing content when notified about it, the service cannot be held liable for monetary penalties. The section has played an under-appreciated role in the tremendous flowering of online services, Web sites, and social networking tools that empower users with new ways to communicate. In short, it has worked just as Congress intended.
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Viacom's lawsuit against YouTube is a straightforward effort to roll back the section 512 safe harbor. Viacom's arguments for why YouTube should not be eligible for the safe harbor would, if adopted, disqualify lots of other current and future services and Web sites as well. As the brief we filed yesterday explains, such a radically narrow reading of the safe harbor cannot be squared with the intent of Congress to foster innovation and the development of new services. A safe harbor that applies only narrowly, and that is lost the moment a service tries to add new functionality, would do nothing to foster the development of new services.