YouTube, other websites and the DMCA
Now, if I weren’t the general counsel of the Media Bloggers Association (have I mentioned that recently?) I might opine at this point that I actually have a question as to whether Congress intended, in fashioning the safe harbor of the notice-and-takedown provision of the DMCA, to protect the likes of bloggers, or websites such as YouTube, as online service providers. I have thought long and hard about what an OSP is or is not under the statute because I have had the opportunity to argue on behalf of luxury-brands clients, with top legal people from eBay, that eBay isnot an OSP, and may be liable for infringements (eBay not only relies on the DMCA for copyright but also mimicks the DMCA’s procedures for trademark complaints) even if it does seek shelter in the safe harbor. But this is a favorite topic of mine and you may not share that interest or my view of the matter.
In theory, though, it might not benefit my blogger clients for me to utter such heresy, so I will keep that thought to myself, in case anyone stumbles on LIKELIHOOD OF CONFUSION for some reason.