Massless

A breakdown of what Viacom was granted and denied in the recent ruling in its case against YouTube.

Because I hadn't seen one yet, I thought I'd compile a small breakdown of what Viacom asked the court to order Google to reveal - along with some excerpts of the ruling.

The breakdown:

1) The source code for web search. Denied, protected.

Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel YouTube and Google to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool "Google.com".

Plaintiffs argue that the best way to determine whether those denials are true is to compel production and examination of the search code. Nevertheless, YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation. A plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.

2) The code behind YouTube's identification of infringing videos. Denied.

Plaintiffs also move to compel production of another undisputed trade secret, the computer source code for the newly invented "Video ID" program. Using that program, copyright owners may furnish YouTube with video reference samples, which YouTube will use to search for and locate video clips in its library which have characteristics sufficiently matching those of the samples as to suggest infringement.

The notion that examination of the source code might suggest how to make a better method of infringement detection is speculative. Considered against its value and secrecy, plaintiffs have not made a sufficient showing of need for its disclosure.

3) Copies of all removed videos. Granted.

Plaintiffs seek copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason, or such subsets as plaintiffs designate (Pls.’ Reply 41).

While the total number of removed videos is intimidating (millions, according to defendants), the burden of inspection and selection, leading to the ultimate identification of individual “works-in-suit”, is on the plaintiffs who say they can handle it electronically. Under the circumstances, the motion to compel production of copies of all removed videos is granted.

4) Logs data including the "Login ID" and the IP address for each view of a video on YouTube. Granted.

Defendants do not refute that the "login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube" which without more "cannot identify specific individuals" (Pls.’ Reply 44) , and Google has elsewhere stated:

We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot.

Google Software Engineer Alma Whitten, Are IP addresses personal?, GOOGLE PUBLIC POLICY BLOG (Feb. 22, 2008), http://googlepublicpolicy.blogspot.com/2008/02/are-ip-addresses-personal.html (Wilkens Decl. Ex. M).

Therefore, the motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted.

5) Metadata for every YouTube video including titles, keywords, comments, flags, poster's username, and other administrative information. Denied.

No sufficiently compelling need is shown to justify the analysis of "millions of pieces of information" sought by this request, at least until the other disclosures have been utilized, and found to be so insufficient that this almost unlimited field should be further explored.

Therefore, the motion to compel production of all those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied.

6) The schema for Google's advertising databases. Denied.

However, given that plaintiffs have already been promised the only relevant data in the database, they do not need its confidential schema (Huchital Decl. ¶ 8), which "itself provides a detailed to roadmap to how Google runs its advertising business" (id. ¶ 9), to show whether defendants were on notice that their advertising revenues were associated with infringing videos, or that defendants decline to exercise their claimed ability to prevent such associations.

7) The schema for Google Video's databases. Granted.

Plaintiffs argue that the schema for that database will reveal "The extent to which Defendants are aware of and can control infringements on Google Video" which "is in turn relevant to whether Defendants had 'reason to know' of infringements, or had the ability to control infringements, on YouTube, which they also own and which features similar content." Id. 52 (plaintiffs’ italics). That states a sufficiently plausible showing that the schema is relevant to require its disclosure, there being no assertion that it is confidential or unduly burdensome to produce. Therefore, the motion to compel production of the Google Video schema is granted.

8) Copies of all of the videos on YouTube marked "private". Denied.

Defendants are prohibited by the Electronic Communications Privacy Act ("ECPA") (18 U.S.C. § 2510 et seq.) from disclosing to plaintiffs the private videos and the data which reveal their contents because ECPA § 2702(a)(2) requires that entities such as YouTube who provide "remote computing service to the public shall not knowingly divulge to any person or entity the contents" of any electronic communication stored on behalf of their subscribers and ECPA § 2702 contains no exception for disclosure of such communications pursuant to civil discovery requests.

8) All non-video data regarding videos on YouTube marked "private" including the number of times watched or embedded. Granted.

Plaintiffs need the requested non-content data so that they can properly argue their construction of the ECPA on the merits and have an opportunity to obtain discovery of allegedly infringing private videos claimed to be public.

There's some things I like about the ruling (of course Google's search source code shouldn't be handed to Viacom) but I'm sad about the concerns about release of user data being considered "speculative." Is this a legal definition separate from the normal usage of the word? Because I can show pretty easily that usernames are often not "anonymous pseudonyms" and that many people use their full names. Linking video habits to a specific person wouldn't be that hard, particularly for those who played by the rules and are content producers that use YouTube promotionally and used their full names and have public profiles linking to websites, blogs, etc.

I'm sad about the IP address arguments as well. I understand Google's in a tricky spot here but the argument they made that IP addresses are "in most cases" not identifiable has been conflated by the court to mean that IP data "cannot identify specific individuals." That's false. People hosting web sites from static IP addresses where they also use the internet (e.g. some small businesses) can be identified by their IP data. Because there's fewer of these cases means that the data can be handed over?

Also, getting all logs data just because a claimant suspects infringement seems too broad. Why not just number of times viewed during various time periods? Does this mean I should ask MTV Networks for demographic data they've collected for all of their content since they've used songs from one of the bands I've been in and I suspect they haven't told me about all the times it was used and aired? Was it just that one time on the Ashlee Simpson show? Really? How can I be sure unless they hand over all usage data, related or not? Also, I'd like all of their advertising data so I can see if I was treated fairly in terms of compensation. I would love that data! I promise I wouldn't use it as an advantage in creating a new business.

posted at July 03, 2008, 11:04 AM