Last week, the Appellate court reversed in part, saying that it was not a matter of course that YouTube falls under the safe harbor because it offers several services that bring it out of the "mere web host" category. The case has been remanded for further fact-finding at the District level.
What this means for your website: don't get too comfortable. When Viacom v. YouTube was decided, it touched off a firestorm debate about whether a host server has either the technology or the obligation to screen its user-contributed data. While it may seem like all websites that only allow users to contribute content might be home-free under the safe harbor, last week's reversal should give web hosts pause. There are now some clear areas, namely whether the host company "should know better," that might increase rights-owners' ability to coopt the web host in policing of thier marks. This would shift some of the burden onto web hosts, increasing thier costs to remove infringing content and potentially give the hosts liability for infringement