This debate parallels one in our daily Talmud page. Here we find a dispute between Rabbi Yochanan and Reish Lakish. According to Yochanan, if someone is warned that their actions are illegal, they are liable for lashes if their wishes are violated. This includes instances where the person asking is unsure about whether their wish will be violated at all. This ruling would accord with those who say that Viacom can ask preemptively that none of their content appear on YouTube.
Reish Lakish on the other hand does not hold like Yochanan. He believes that one must have a definite warning to warrant lashes. Therefore, asking YouTube to ban Viacom content is only viable when they are sure the content will be on the site. Because YouTube can't police people's living rooms to be sure that they will be putting the content up, it means that they are only liable after it appears on the website.
In out time Google/YouTube won this battle. However Jewish tradition doesn't agree with this settlement. In an 11th century ruling RAMBAM explained:
The following laws apply when a person transgresses a negative commandment that can be corrected by a positive commandment. Before the transgressor violates the negative commandment, witnesses must administer a warning, telling him: 'Do not perform this activity. If you perform it and do not fulfill the positive commandment associated with it, you will receive lashes.' If, after receiving such a warning, the transgressor violates the commandment and does not fulfill the positive commandment, he receives lashes. Although the warning involved uncertainty, - for if he fulfills the positive commandment, he will be released unpunished - an uncertain warning is considered as a warning. (MT Sanhedrin 16:4)So take your pick, RAMBAM or American law, who do you think is right?
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