YouTube was recently sued for copyright infringement, on the ground that it hosted the notorious video depicting the beating of Reginald Denny in Los Angeles after the (almost incomprehensible) verdict in the state-court case against Rodney King's attackers. YouTube recently answered the complaint. A large part of its defense depends upon the DMCA safe harbors.
In one sense, I think YouTube took the right lesson from Ellison v. AOL, Inc., 357 F.3d 1072 (9th Cir. 2004). Paragraph 38 of YouTube's answer notes that:
Further, YouTube has a registered DMCA agent and provides numerous links on its site to the agent so that allegedly infringing materials can be reported. YouTube also has implemented a policy under which it terminates the user accounts of repeat infringers.
This doesn't quite aver everything that is necessary to avoid the problem AOL had created for itself. Our appeal turned on an inaccurate designation of the registered DMCA agent. Although it is certainly implied, this paragraph does not explicitly state that a report sent to the address(es) found through the Copyright Office's registry of DMCA agents would reach the DMCA agent. It comes close, though.
Where YouTube's answer falls down, though, is in paragraph 41. It's a simple rhetorical slip. Unfortunately, it's the simple rhetorical slip that news services have picked up. The answer properly notes at the beginning of the paragraph that § 512(c) "limits liability". However, a few lines into the paragraph, the answer incorrectly claims that "Under § 512(c), a service provider is immune from liability for copyright infringement allegedly committed by its users where [sic] it meets the following three requirements" (emphasis added). Curiously, the answer then proceeds to quote the three conditions precedent, but does not quote the language immediately preceding those conditions.
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
17 U.S.C. § 512(c)(1). Nope. It's not immunity; it's a limitation of liability. Of course, had § 512 been properly structured, this would have been clearer. As its stands, the statute really makes sense if, and only if, one starts at subsection (n) and works backward. All of the conditions, implementation requirements, definitions, and limitations appear at the end, and they are all necessary to understand what is going on in the five possible safe harbors.
It's rather ironic, in a way; good programming practice recommends putting the longest, most involuted parts of a branching pathway at the end, not the beginning, and requires one to declare constants and variables before using them. So, for that matter, does good writing. On the other hand, why am I expecting good writing in a statute?