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Viacom, Google Face Off in Appeals Court Over YouTube Copyright Issues

So what's going to happen?

One of the justices asked Smith what he really wanted from the 2nd Circuit.

Smith responded that he had a "big ask" and a "small ask."

The big ask involves an interpretation of the DMCA whereby it's established that ISPs like YouTube have an affirmative obligation to make sure their systems are clean before being eligible for safe harbor.

It's not clear that the judges are ready to go that far.

Instead, the justices could merely give Viacom it's "small ask," which means that the case could be remanded to the district judge for more fact-finding. The justices certainly seemed impressed by some of the internal YouTube documents turned up in discovery that showed possible bad behavior.

If we had to guess, the 2nd Circuit might revive Viacom's lawsuit by directing a lower court's attention to YouTube's early days. Viacom might not get everything it wants, but at least it would get before a jury to argue that YouTube execs could have done more with the knowledge at hand.

Asked to pin down damages, Smith said he couldn't, but he did allow that YouTube had once offered a half a billion dollars for licensing Viacom's material, which he says undercuts Google's arguments about not knowing what was specifically troubling its adversary. 

Then again, it really depends on how one defines "knowing." The 2nd Circuit better bone up on their philosophy textbooks.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner