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Google's lawyers don't typically lean on the First Amendment to defend YouTube against copyright lawsuits like Viacom's $1 billion headliner. So far they've lined up their arguments behind the Digital Millennium Copyright Act. But there is a chance the Sixth Circuit of the U.S. Court of Appeals ruling (PDF) yesterday on child pornography could change that strategy. Here's our quick analysis.

In 1988, Congress passed a law that requires producers of pornography to maintain records regarding the age of the individuals depicted getting it on. Since then, Congress updated the law to classify those who assemble, manufacture, publish, duplicate, reproduce, or reissue pornography as producers as well.

In 2006, now-departed U.S. attorney general Alberto Gonzales issued a clarfication of law that added website owners to the list. That request wasn't a problem for most Web 1.0 pornographers — the kind who made their own skin flicks, with their own actors, and uploaded them to the Web themselves.

But the clarifications put Web 2.0 pornographers in a tight spot. They had developed platforms for user-contributed videos just like YouTube, except that their girls weren't so lonely. How were these sites supposed to maintain records on the actors performing in the videos uploaded to their sites, asked plaintiff Connection Distributing in the suit settled yesterday.

They don't have to, ruled the judges. Why? Because as bad as child pornography is, infringing on first amendment rights is worse. Here's part of Circuit Judge Karen Nelson Moore's concurring conclusion:

I remain disgusted by child pornography and the sexual exploitation of children that it depicts and generates, and I remain convinced that protection of children is a government interest of the highest order. Nonetheless, under the applicable precedent, the means that Congress chooses to advance this end must not burden substantially more speech than necessary.

This is, first and foremost, a big victory for fans of lesbian sex clips on Justin.tv.

But there may be a connection, however tenuous, to YouTube's plight. If a court is willing to rule that protecting children from pornographic exploitation is less important than protecting a Web video site's users right to free expression, it's plausible that a court would also prioritize protecting their rights over Viacom's copyright-infringement concerns. And an argument that pits the maker of South Park and The Colbert Report against free speech would make Viacom's public image really X-rated.