What would a fair balance look like?

In my opinion, the You Tube case hinges on whether general knowledge is sufficient to trigger an obligation to act under the DCMA. Because the legislative history is not clear on whether general knowledge or specific knowledge constitutes “actual knowledge” of infringement, there is a need to clarify this point so that emerging technology business models will understand the risk they are undertaking in making user generated content available to the public. Given the wide-spread use and acceptance of websites such as You Tube, there is strong motivation to continue to enable these sites to perform their services without incurring liability. On the other hand, there is an equally strong policy for ensuring that content holders can effectively protect their intellectual property against the wide-spread unauthorized dissemination of the content. While requiring specific knowledge of an infringing video (or any protected content for that matter) appears to strike a balance at first blush, a closer look reveals that the balance falls heavily on the side of the consuming public and the technology providers (and not for content providers). The You Tube opinion seems to suggest that turning a blind eye (i.e. willful blindness) to the actual use of a website is sufficient to maintain DCMA safe harbor protection, even though there is testimonial evidence that You Tube knew and in part wished to capitalize on the general infringing uses on the website. To me, I think a better balance would be to impose some burden on the internet provider (read here to mean a provider that does something more than merely providing a channel; for example, providing a viewing platform or searchable database would be sufficient to trigger the additional step for obtaining safe harbor protection) to implement some type of filtering technology on the website. Perhaps an even more equitable balance between the competing interests of ISPs and content holders would be to split the cost of developing and applying the filter? Either way, the current distinction between general and specific knowledge seems insufficient to adequately protect content holders' rights in their work.