Which suggests a nice solution if Congress were to be reasonable: amend the DMCA to clarify that ContentID itself would invalidate safe harbor. In other words, require actual neutrality for safe harbor.
Thing is, Google owns the site, and presumably has the right to decide which videos it wants on its site. Unless one thinks they should never be allowed to take videos down, as disgusting or hateful they might be (except for valid DMCA requests), how would you draft that rule?
Strawman version: Google gets safe harbor if they are neutral as to what videos are on the site.
If they pay people for videos, no safe harbor on those videos. If they reject things for editorial reasons, no safe harbor.
This would probably be quite problematic. On the other hand, it would help address what I think is a big hole in free speech: almost add speech is mediated by companies, and those companies have no particular incentive to respect freedom of speech. Maybe the law should give them one.
> Which suggests a nice solution if Congress were to be reasonable: amend the DMCA to clarify that ContentID itself would invalidate safe harbor
ContentID is more acceptable to the only potential litigants against whom Google would care about the DMCA safe harbor against than is the process which makes available the DMCA safe harbor, so that wouldn't matter.
A safe harbor is a protection against legal liability which you otherwise might have. If you have a separate arrangement which is both lower cost for you to operate and more acceptable to the only people against whom you are concerned about using the safe harbor than the actual safe harbor process, you don't care about a safe harbor.
Not if ContentID invalidated your safe harbor with respect to other copyright holders. Frankly, that seems reasonable to me. If YouTube infringed my copyright, made safe harbor available to Viacom, and didn't make it available to me, why should YouTube have safe harbor against my claim?