Federal Communications Law Journal

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Publication Citation

62 Federal Communications Law Journal 153 (2010)


Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both copyright holders and online service providers by looking at the pending $1 billion Viacom v. YouTube litigation, concluding that more liberal use of the safe harbor's "standard technical measure" provision will satisfy both parties' interests. The proposed solution will limit the threat posed by online service providers to content owners while simultaneously encouraging online commerce and competition by reducing the threat of litigation.