Well, the safe harbor clause in the DMCA will play a major role in this case. If I understand it correctly Viacom will be able to argue that Google did have knowledge of the infringing content (i), since it's common knowledge that TV shows etc. are copyrighted material and that Google received financial benefit from the infringing activity (B) since they [Google] have the ability to control such activity. If a judge sees it that way is a whole other story, but this case could definitely go either way.
That's absolutely correct. In these past months, I could have combed through every MTV (Viacom) video I knew existed on YouTube, reliving my 80's years. I could have easily found hundreds from some fundamentally formidable, world-renowned artists - if not a thousand. YouTube could have hired ten Q&A idiots to do the job, and it would have been kept perpetually clean of infringement - at least in regard to Viacom-related video content. Why didn't they? Because due to the DMCA, they needed to be *made aware* of copyright content. Uhhh-huhhh.... You can bet that Viacom has the paper trail. Can they argue willful intent-and therefore willful infrigement? If they can convince a judge that YouTube did not utilize a best-practices policy in the TIMELY removal of such content -- which I think Viacom absolutely can. This is not good for Google.
My understanding of the safe harbor restrictions is that they should act on copyright infringement even IF the copyright holder hasn't complained (yet). To me the first section (i) means that if I run a website and for example a member uploads the complete Star Wars Trilogy to my site, if I come across that upload, I will have to immediately delete it since I know that it is blatant copyright infringement... even though the copyright holder hasn't complaint to me. So I don't think Google can bet on just the safe harbor protection... I'm sure someone working at YouTube might have at least, even by accident, come across copyrighted material at one stage or another. How they react to it when they do will be an issue in this case. Do they delete it, or leave it up till they receive a complaint? If it's the latter, then if Viacom can prove it, Google is in for a world of hurt since that would negate/limit safe harbor protection. Not to mention the fact that they are profiting through advertising etc. of that content.