Are America’s Copyright Laws Keeping “Muslim Innocence” Clips Up on YouTube?

Google may be refusing to take down the infamous video clips that are fueling riots across the Muslim world because doing so could jeopardize its “safe harbor” protection from copyright lawsuits under the Digital Millennium Copyright Act.

That’s the theory of technology author Robert Cringely in a recent blog post: Muhammad v. YouTube.  While stressing that he’s not advocating either removing or maintaining access to the incendiary clips – which portray Muhammad as a simple-minded, lecherous child molester — he suggests that the strictures of American copyright law may be the real obstacle to YouTube taking down the video.

Google lives and dies by its IP and YouTube in turn lives and dies primarily by the Digital Millennium Copyright Act (DMCA), specifically the Safe Harbor provision of that act that allows YouTube to simply pull infringing content on the demand of the IP holder rather than have to pay a $25,000 penalty…

But the DMCA Safe Harbor provision comes with certain rules which require a generally hands-off approach to content censoring by the carrier, in this case YouTube.

If Google was seen to be actively policing YouTube’s content beyond simple terms-of-use enforcement, says Cringley, the company could lose its “safe harbor” protection and open itself up to massive fines and untold lawsuits by copyright holders who could then argue that Google is directly responsible for all the content mainatined on YouTube.

However, despite YouTube’s determination that the offensive clips do not violate its terms of service, many have pointed out that the company’s guidelines do explicitly prohibit religious hate speech.  White House has asked YouTube to review its decision to leave the clips up on its site.

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