Stanford law professor Lawrence Lessig notes the ironies in copyright law in "Make Way for Copyright Chaos."

The controversial 1998 Digital Millennium Copyright Act was crafted as a compromise between the tech and entertainment industries. Content providers got a fast track way to report copyright infringement. internet service providers that hosted content from others were required to take down such copyrighted content, but received a safe harbor in return.

The entertainment industry however now isn't content with that deal and hasn't taken its attack to the courts. It sued P2P developers. Historically the Supreme Court has deferred to Congress in setting copyright law. But it reversed that position in the 2005 decision against P2P developer Grokster.

This is the battleground for Viacom's suit against Google YouTube. Lessig writes:

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.