YouTube is taking a bold approach in its defense against Viacom’s massive copyright infringement lawsuit. In a nutshell, YouTube’s official reply to Viacom’s $1 billion complaint (submitted Friday) is that if Viacom wins, the DMCA’s safe harbor provisions will be invalidated, and that “threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.”

Now if that isn’t some ridiculously hyberbolic … or, wait. Let’s see, here. There’s no question YouTube is using an extreme model (The Slipperiest of Slopes Projection?) to predict that all online contribution and information-sharing would be threatened by a Viacom victory, but that doesn’t mean the prediction is untrue or even unlikely. But the whole thing got me wondering whether the concept of safe harbor itself would have made it into a DMCA written today, and, frankly, whether it’s going to last much longer no matter what happens with YouTube/Viacom.

Here’s the deal with safe harbor provisions. Per the Chilling Effects description, safe harbor “exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider’s network through which they engaged in the alleged activities is not liable.”

YouTube says a Viacom victory, then, would make it unsafe for any online service provider, be it an ISP, a video upload service, or simply a website operating forums, to keep running in an even remotely open fashion, for fear of massive copyright infringement liability, and that safe harbor unquestionably applies to them. In fact, they say, “YouTube fulfills Congress’s vision for the DMCA.” On the other hand, Viacom claims YouTube is not the type of service provider meant to be protected under safe harbor.

Now, the DMCA actually codified safe harbor provisions that Congress made in 1998, in the On-Line Copyright Infringement Liability Limitation Act. Can you believe that ever actually existed? That Congress, at some point, wanted to limit copyright infringement liability? That is so quaint. But that’s what’s interesting here. Those days seem to be over. After all, the current mood of the U.S. Congress, the UK, and of course, the entertainment industry, is that Internet service providers should take responsibility for stopping piracy.

And while you might be able to argue that YouTube isn’t a service provider, I’m pretty sure that Congress specifically meant Internet service providers when they mentioned “service providers” in the original OCILLA act. I mean, it’s in the name.

And if some members of Congress are already willing to invalidate the most central aspect of safe harbor protections — the concept that the providers of the pipes shouldn’t have to test and verify all the water that goes through them — it’s a very short leap indeed to imagine a world in which website operators are liable for comments as a way to limit hate speech or cyber-bullying, and a far shorter leap to assume that a video upload service is liable for the copyrighted material displayed on its pages.

So, even though it sounds like YouTube’s claim that Viacom will ruin the Internet is outrageously hyperbolic fear-mongering, it may be that they’re a step behind the trends. The so-called safe harbor may already be filled with sharks.

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