In all the fuss over Viacom v. YouTube, I've been reading a lot of folks write things about how YouTube must do more to prevent the posting of copyrighted material. I've even read and heard it from other law students, who should know better.

The vast majority of content on YouTube is copyrighted. If the content was created in the United States, most of it is likely sufficient to have been copyrighted as soon as it was fixed in a tangible medium. There's no notice requirement, and there's no registration requirement. Create and fix. Boom. Copyright, unless the holder disclaims copyright protection.

What this means is that the real complaint is that YouTube may not be sufficiently policing the distribution of material posted by users who did not have license to post that material to YouTube. In the Terms of Use, YouTube requires that users:

[A]ffirm, represent, and/or warrant that: (i) [the user] own[s] or ha[s] the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service . . . .

Users also agree not to "submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights . . . ."

And that original, copyrighted content?

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successor's) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

YouTube is loaded with copyrighted material, and it's perfectly acceptable for it to distribute that content. Users have licensed distribution rights to YouTube for that content. The problem is that material that has been posted by users who, despite their assertions under the Terms of Service to the contrary, do not own the rights to the material they are posting. The answers to that problem are covered by the DMCA. How best to read the answers is the source of the Viacom conflict.