From the video: "I do not believe Mr. Tur will be able to prove that YouTube has made money directly attributable to his video." As Fred von Lohmann has written, this is a key factor in YouTube's ability to invoke the DMCA's online service provider safe harbor provisions, and as Fred further explains, the problem is "a bit [more] sticky" than lawyer Ron lets on. A fascinating upshot of Ron's video is the creation of the "Friend of the Court Video" tag on YouTube: an opportunity for YouTube users to tag their noninfringing works as such in support of the argument that substantial noninfringing uses preclude YouTube's liability for contributory infringement.
Fred's article concludes: "YouTube's investors poured another $8 million into the company in April, and you can be sure that money will go toward buying top-drawer copyright advice." Among the first points YouTube's team will have to address is whether YouTube may in fact invoke the DMCA as a shield. Plaintiff Tur's lawyers have indicated they intend to argue otherwise: "There are service providers — utility companies, so to speak — and there are content providers. And I would be very surprised at how [YouTube] could possibly qualify as an ISP within the meaning of (the act)."
Mack Reed has a related editorial in USC's Online Journalism Review, Publishers vs. YouTube: Does either side win?, where he rightly points out that the more technology normalizes the "unauthorized propagation of information," the more the law is called upon to react and adjust.