Hate to say it YouTube lovers, but Big Media is right on this one. I don't see how the DMCA protects here... From an opinion piece in the Washington Post by Viacom's attorney.
What the DMCA doesn't do is protect YouTube.
YouTube has described itself as the place to go for video. It is far more than the kind of passive Web host or e-mail service the DMCA protects -- it is an entertainment destination. The public at large is not attracted to YouTube's storage facility or technical functionality -- people are attracted to the entertainment value of what's on the site.
And YouTube reaps financial benefits from that attraction through selling the traffic to advertisers. While an e-mail provider is paid to facilitate and manage the exchange of e-mail traffic, and competes in that fashion, YouTube lures consumers and competes by having great content -- a resoundingly substantial part of which it did not create or pay for.
Does YouTube have "knowledge" of copyrighted material on its site? Does it have the "right and ability to control" the content? Yes and yes. If the public knows what's there, then YouTube's management surely does. YouTube's own terms of use give it clear rights, notably the right to take anything down. YouTube actively monitors its content. For example, its managers remove pornography and hate content and, as was recently reported, claim they can detect and remove "spam." Without knowledge and control, how could YouTube create "channels" and "featured videos" sections on its site? YouTube has even offered to find infringing content for copyright owners -- but only if they do a licensing deal first.