The Grokster case is coming back to haunt us all with the Viacom suit against YouTube. In Grokster, the court held that "inducement" to violate copyright landed you in hot water - which cracked the door open wide enough for Viacom to bring suit - even though YouTube seems to fall into the Safe Harbor provisions of the DMCA. Lessig explains:

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. The core of its case centers on the “safe harbor” provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner.

While this mess is being litigated, no one can be sure what is and isn't allowable under safe harbor. I'm afraid that the chaos Lessig predicts (read the rest of his column) is going to come about.

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