Battling in the Name of Balance: Evaluating Solutions to Copyright Conflict in Viacom International v. You Tube

I. INTRODUCTION Battle lines have been drawn, and the boxing gloves are about to come off in the ring of user-generated Internet content.1 Copyright holders and technology innovators are preparing to spar to define through litigation2 what the Supreme Court has refused to clarify in precedent: the realistic parameters of the balance between copyright protection and technological innovation.3 In the innovation corner, Gen-Y darlings Google and YouTube4 champion the causes of free information, decentralized media power, and application of technology for the betterment of everyday life.5 In the copyright protection corner, media mogul Viacom fights to safeguard the art and livelihood of hardworking entertainment professionals.6 Both contenders wave the banner of the Digital Media Copyright Act and claim the law is on their side,7 and both contenders covet with equal zeal the glittering prize at stake-billions of dollars in advertising and other revenue,8 and control over the media landscape.9 This power struggle became almost inevitable when Google, an alternative media giant,10 took note of YouTube's immense popularity and acquired the online video site for $1.65 billion in October 2006, a mere twenty-one months after YouTube launched.11 It appears Google made the right decision. Today, YouTube users upload 65,000 new videos to the site every day.12 Last year, users watched 10 million YouTube videos a day; they now watch 100 million.13 At the time of Google's acquisition of YouTube, industry analysts cited, with uncanny foresight, concerns that Google's $10.4 billion in then-accumulated cash14 would attract litigious copyright holders irked that their content is appearing on a commercial Web site to which anyone can contribute.15 These concerns have become reality. Further, the Google/YouTube pairing raised interesting questions about the vitality of copyright law and the applicability of outdated Supreme Court precedent involving VCRs and peer-to-peer networks in the age of user-generated content and streaming online video.16 This Comment reexamines the majority's preeminent copyright holding in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.17 in light of the prominent Google/YouTube partnership and Viacom's pending lawsuit against Google and YouTube.18 Although the Supreme Court appropriately adopted the common law inducement test for claims involving peer-to-peer network file sharing,19 the Court's unwillingness to quantify the point of balance between protection and innovation20 left post- Grokster copyright holders and innovators like Google, YouTube, and Viacom with uncertain footing. An examination of the Justices' separate Grokster analyses reveals the pitfalls of assigning hard, fast figures to the balance. Instead, application of Justice Breyer's realistic, market-aware balance test21 preserves the spirit of compromise between innovation and protection, maintains precedential flexibility among technological advancement, and achieves common-sense results. Part II outlines the stage-setting Supreme Court precedent in Sony Corp. of America v. Universal Studios, Inc.22 and reviews the separate analyses in Grokster, focusing particularly on Justice Breyer's approach. Part III provides context to the pending lawsuit with its survey of today's Web landscape, of the Google dynasty and its copyright woes, and of recent incidents highlighting media companies' different responses to YouTube and copyright infringement. Part IV presents the problem of Viacom International, Inc. v. YouTube in detail and applies Justice Breyer's balance preservation test in the context of the pending lawsuit to evaluate possible solutions. Based on the helpfulness of Justice Breyer's approach, Part V concludes that although settlement in Viacom v. YouTube, rather than precedential revision so often advocated by parties to copyright litigation, may best preserve the balance between innovation and copyright protection in the pending case, it does little to protect that balance on an industry-wide level. …