More than 150 years ago, Supreme Court Justice Joseph Story found that copyright and patent cases come “nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law where the distinctions are, or at least may be, very subtile [sic] and refined, and, sometimes, almost evanescent.” See, Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841).

It is likely that the type of issues Justice Story had in mind will be at the center of the lawsuit Viacom, and related entities (“Viacom”), initiated against YouTube Inc., YouTube LLC and Google Inc. (“YouTube”) on March 13, 2007. In February of this year, Viacom provided YouTube with “take down notices” for removal of all of its copyright protected content after the two parties failed to reach a distribution agreement following months of negotiation.

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