So while the entertainment industries may be pushing for fingerprinting and filtering, there’s nothing in the DMCA that requires it.

“Take measures to control infringing users. Specifically, infringing accounts need to be terminated and the email banned from any new accounts.”

At what point? On the first infringement? After 10?

“Sites are encouraged to spot check videos, and if they do, to remove content that is likely infringing.”

“Likely” based on what? Maybe I actually DO own the rights. Or maybe what I’ve put up is permitted under Fair Use. It’s too broad.

Maybe the ambiguities are good, though – it leaves room for these sites to comply without being overly aggressive. But I worry that they might go the other way instead.

Summary judgments are often overturned on appeal and I doubt this will have much impact on the YouTube lawsuit for a number of reasons.

In this case the plaintiff did not even provide notification under the DMCA and that was very problematic and made the claims less believable because there was no way Veoh could have had knowledge of the infringement.

In the YouTube case it is going to be difficult for YouTube to argue that it didn’t have actual and constructive knowledge of the infringement because it has been sent hundreds of thousands of takedown notices and has interacted directly with plaintiffs on the issue of copyright infringement.

There is no real precedent set here. District court opinions are frequently corrected or dismissed entirely at the appellate level. So saying that a magistrate judge in California district court believes transcoding isn’t a big deal does not mean that an appellate court or the Supreme Court won’t disagree upon a more complete evaluation of the issue.

Attorneys representing online video websites will salivate once there are appellate level rulings (or a Supreme Court ruling).

Everybody looking at this should remember that the 9th Circuit Court of Appeals in August 2004 ruled in favor of Grokster as part of the MGM/RIAA/MPAA suit against it.

That ruling was overturned by the Supreme Court so any attorney resting their hopes on a summary judgment from a MAGISTRATE judge is insane.