“When you’re talking about a corporation, what constitutes “actual knowledge”?”

Well, I think the ACTUAL questions are what role did the YouTube employees play in the company and where did they upload the infringing content? Because if the answers to those questions are “content management” and “at their work terminal” then, Houston we have a problem. If the answers are “Bitchy receptionist” and “from her mobile device while she sat on the toilet at home avoiding her husband’s lurid gaze” then not so much.

“Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well?”

Well, I’m less up on the law than you, surely, but since fair use is considered an affirmative defense, wouldn’t the answer to your queston be: No, they aren’t supposed to make a Fair Use determination, they’re supposed to take the damn content down and let the uploader assert their affirmative defense? I know that sucks, but I AM against infringing content after all, and the way it currently works is fair use is a defense.

“According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms.”

I like catching hypocrites as much as the next person, and it seems to me the same “Role” and “Where” questions should be asked of Viacom as well, but given that fair use is an affirmative defense and the way the law was written, I don’t see what one has to do with the other. YouTube shouldn’t be pointing to Viacom and saying, “but you’re secretaries are doing it TOO!”, they are a publicly traded company and they need to obey the law so long as that law exists (hopefully working to change it as well).

Interestingly, I think the “role” and “where” questions might play in opposites for Viacom’s case, if they are indeed the rights holders to the supposedly infringing material. In THEIR case, the secretary uploading at home is infringing, but the content managers at work may not be if they’re doing it with company permission. Odd world we live in.

“On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn’t want the same content uploaded by others?”

That only works if it was the exact same content, I think.

“Finally, even if this does constitute “actual knowledge,” wouldn’t it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content?”

Well, yes, it should be limited to what Viacom can prove, but it’s indicative of a deeper issue: employee accountability. Why weren’t there measures in place to key in and alert management to these emails discussing infringing content (assuming they weren’t being sent/received BY management)? There are fairly simple ways to accomplish such monitoring: most Email/Message archivers will do this. Many appliance-based SPAM solutions will as well. You just string several keywords together and set the devices to alert you when the pop up. If they can alert you when social security numbers are being discussed, certainly you could configure them to alert you to these types of internal discussions.

And they should have, end of story.