Since entering its discovery phase, formal courtroom proceedings in Viacom’s copyright infringement suit against YouTube and Google have substantially quieted down. Press reports suggest that the lull in public proceedings may be due to settlement efforts. However, the nature of this case suggests that the parties’ discovery burdens could be substantial and causing a slowdown.

Viacom’s claim in this suit is that YouTube had permitted over 150,000 clips of Viacom-owned content, such as clips from “SpongeBob SquarePants”, “SouthPark” or “The Daily Show with Jon Stewart” to be uploaded and viewed by users. According to Viacom’s complaint, its copyrighted material has been viewed on YouTube “an astounding 1.5 billion times.” Raising both direct and indirect infringement theories, Viacom claimed that YouTube had created an environment that “promotes” and “induces” copyright infringement.

YouTube and Google’s primary response was that their actions were protected by the Digital Millennium Copyright Act (DMCA). According to YouTube’s Answer, “YouTube . . . fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works.”

In two recent suits, a similar internet file-sharing service, Veoh, has prevailed at summary judgment using the DMCA safe-harbor defense that the infringing material was “information residing on systems or networks at direction of users.” 17 U.S.C. §512(c); see IO Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D. Cal. 2008); UMG Recordings, Inc. v. Veoh Networks, Inc., 2008 WL 5423841 (C.D.Cal. 2008). YouTube may also prevail in its case against Viacom. However, this does not mean that sailing will be smooth for YouTube.