I talked to Greg Gabriel, a copyright attorney at Kinsella Wietzman Iser Kump & Aldisert, about the issue. He told me that if Viacom isn't willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case.
"It would have some persuasive value with a judge if YouTube says 'look, they're ranting and raving about all this infringement occurring on my site and they're not doing anything about it themselves,'" said Gabriel. "YouTube is testing the limits of the DMCA and Viacom is asking them to do something that the letter of the law does not require. Viacom is really asking the judge to do something extraordinary here."
As written, the DMCA does not require any type of active monitoring on the part of site owners. What Viacom wants is for the judge to "make a new interpretation of the law," as Gabriel describes it. The problem that Viacom will have in making its argument is that there's no precedent for the judge to draw upon. As a result, "Viacom's own conduct with iFilm will likely be a factor that the judge looks at," said Gabriel.
While this sort of finding is entirely predictable but nonetheless awkward for Viacom, another point Bangeman makes in passing caught my eye. In response to an inquiry from Ars Technica, a Viacom spokesman explained that, "Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site."
When it comes to copyright at least, this may put Viacom in a worse position than YouTube, which, to my knowledge, is an essentially automated system with no pre-screening by YouTube/Google personnel. By choosing to screen contributions, it seems that Viacom is taking responsibility for both the adequacy and accuracy of those reviews. In other words, if an infringing video is on iFilm, one could reasonably conclude that it's there with iFilm's (and by extension) Viacom's full knowledge and intent. YouTube/Google could plausibly argue that the DMCA takedown notice is the first prompt for human intervention in their system and that, prior to their receipt of such a notice, they have no knowledge of any specific instance of infringement.
Moreover, what should we make of the "prior to posting" comment in the Viacom statement? On YouTube, users post directly and YouTube/Google act merely as an online service provider, taking advantage of the safe harbor provisions of the DMCA. If the iFilm system requires that iFilm/Viacom employee-screeners post materials after review, doesn't that make iFilm/Viacom the infringing party rather than an OSP vis-a-vis any infringing videos?
Even if they're successful, this could turn out to be the most expensive billion dollars Viacom's ever earned.