Wednesday, July 02, 2008

Discovery rulings in Viacom v. YouTube

In Viacom v. YouTube, the Court has issued a 25-page decision partially granting and partially denying the plaintiffs' motion to compel production of data from YouTube.

The court ruled that:

1. Google does not have to turn over its search source code;
2. Google does not have to turn over its Video ID source code;
3. Google does have to turn over all deleted videos;
4. Google does have to turn over its entire logging database related to videos;
5. Google does not have turn over its database information about its entire universe of videos, but does have turn it over as to the removed videos and the active videos which plaintiffs claim are infringing.
6. Google (a) does not have to turn over its advertising "schema", or electronic index which shows how its data is organized for advertising purposes, but does have to turn over its advertising-related YouTube data, and (b) does have to turn over the "schema" for the Google Video site.
7. Google does not have to turn over videos which were marked "private" but does have to turn over all of the non-content data about the usage of those videos.

July 2, 2008, Decision ruling on discovery issues

[Ed. note. In addition to its usual great commentary and dialogue, the super Groklaw web site also has a helpful, non-pdf, version of the order to read, and some of the underlying legal documents, here. -R.B.]

Commentary & discussion:

Heise Online (German)
Electronic Frontier Foundation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property


Anonymous said...

These people want the source code to Google's search engine? I hope the plaintiffs are up for a good fight against Sergey Brin, Larry Page, et. al.

Judges need to wake up and put a stop to these inane copyright lawsuits.

Kevin Kitching said...

Why does this seem more like a fishing expedition than any thing else?

Oh, yeah, because it is.

MPAA / RIAA: "We know they're up to something, but we need to search their offices to find it. But they must be guilty of something."

JUDGE: "And how do you know this?"

MPAA / RIAA: "The have computers and stuff, and they have these weird guys who do computers."

It was probably just blind luck as much as anything else that the judge saw through alot of the *AA's techno-babble to the heart of the matter, and didn't write them a blank check.

Not a lawyer, and never played one on television, nor did I stay at a Holiday Inn Express, but I think that the Judge gave them too much.

2 questions:

A. Do 5th amendment protections apply to pre-trial discovery?

B. If the *AA gets this data and it somehow winds up on someone's desk in the Rainy Kingdom (Redmond, WA), would they be liable?

--Kevin K

Anonymous said...

The demand for Google search code is nothing more than a blatantly transparent attempt to cow and intimidate Google from pursing this suit and/or damaging Google outright for their perceived harm(s) to the Plaintiffs. Google is right that release of their Trade Secret code would be highly damaging to them, while of no actual benefit the Plaintiffs in actually pursuing their case to a legal conclusion. Even if Google produced their code, the Plaintiffs would not be able to understand it. They wouldn't have experts as smart as the PhD's working at Google. The judge is correct to deny Plaintiffs this outrageous discovery request merely because they want it.

Plaintiffs want copies of all removed videos. Why does Google even keep them? And if Plaintiffs were able to identify infringing videos while they were up on YouTube, and those videos were able to be copied, they why do they need additional copies of these videos now? Are they looking for all the porn that was taken down?

And wouldn't supplying Plaintiffs with all taken down videos amount to copyright infringement for making copies and providing every video to them that is copyrighted by anybody other than the current Plaintiffs?

I didn't even know that there were "over-the-shelf four-terebyte hard drives". And I don't like the result of these Plaintiffs in particular having access to IP addresses and timestamps, from which ISP account holders are identified in RIAA lawsuits, to be able to match views private viewing habits to specific YouTube videos. The potential for abuse is huge. I wish that the judge had required removal of IP addresses prior to turning over the Logging database, which also constitutes a Trade Secret.

{The Common Man Speaking}

Matt Fitzpatrick said...

Some bizarre discovery requests here. The plaintiffs could simply calculate the popularity of infringing versus non-infringing videos from the number of views displayed next to every video. But they say they need the IP addresses of every YouTube user to figure the popularity? Very strange, and more than just a little worrying.

Well, I'm certain the IP addresses won't reveal anything surprising about the patterns of use at YouTube: people go to YouTube for viral videos, not infringing ones. Sorry, Viacom, but comedy dance montage and Diet Coke/Mentos fountain displays are simply better entertainment than Cloverfield and The Love Guru.

Anonymous said...

I watched a politically sensitive video clip on YouTube and I use a personally identifiable name and IP address. I would like to go before the judge and tell him, "Your honor, your discovery ruling is will harm me, and the law is written to prevent exactly this." What standing does an ordinary YouTube user have, knowing that he will be damaged by the discovery? Well, I'll wait and find out.

Alter_Fritz said...

if i read it correctly the ruling means

joe average has uploaded a video (with content the plaintiffs have no interest in!) for pulbic viewing.
some time later joe decided to delete the video.

so according to te ruling the plaintiffs now get a copy of that video because it is "a deleted video" even though they have no right in that one?

isn't that a classic example of copyrightinfringement?

Let's assume me has uploaded and deleted a homevideo of my daughter. Where do I sign up to sue viacoms ass off for copyrightinfringement on gigantic commercial scale?

Anonymous said...

Woah. This is perverse: But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative. 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
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.

"Identify" has many meanings: there's the "identify" which means in this context "indicate without error a person", and then there's "identify" in the sense of "associate, rightly or wrongly, to a person." An IP address without additional information rarely can "identify" someone in any sense. An IP address associated with a timestamp can and is used to "identify" in the second sense, insofar as an ISP would usually be able to pop up a name associated with that information. That form of "identification" is far from sufficient to prove that the person so fingered had anything to do with the activity, but it has been enough for malicious litigants to shake down tens of thousands of Americans for money.
The same ambiguity applies to "anonymous" usernames.
Now, add in material a list of all videos watched by a username and an account, and you will be able to identify some people in the first sense, and most of those people so identified won't have done anything related to the case at hand.
Heck, even if you stripped out the IP addresses and made the usernames truly anonymous, you'd still be able to identify in the primary sense hundreds of thousands of users (to be conservative). AOL demonstrated that when their "research" unit did release such "anonymized" information. Members of the press were able to track down several of the people who had used the search engine based on the private information contained therein. (one of many articles on the subject)

So there's no speculation here. The privacy threat is real.

Anonymous said...

Here is another consideration, and I hope that Google's lawyers are reading this blog and its comments encouraging them to fight this disclosure.

If the entire set of log files can be turned over in one fell swoop, what is to stop the RIAA from getting a major ISP's entire DHCP log files on one subpoena. After that, they would be able to look up every user they wanted from that ISP that they wanted to threaten with copyright infringement without resorting to any further subpoenas, or any person successfully defending against the RIAA attempts to get his (or her) own personal, private information.

There aren't that many major ISPs to go after, and they could spend a long time with the files they had before they'd need an update. The logic of searching those files for potential copyright infringement isn't far removed from what this judge has just allowed here.

{The Common Man Speaking}

Alter_Fritz said...

Heise Online (english)

Kevin Kitching said...

Edit / Revision of above, please substitute Viacom for RIAA / MPAA / *AA. Read one thing and thought another. (This never used to happen before I had children :))

Here's another pretty scary thought. The plaintif, now in possesion of the ip address and, in their minds anyhow, the identies of persons who have posted these videos, could start sending threatening letters to everyone who posted stuff which could easily be considered fair use.

It's reprehensible, but it's not beneath them, either.

And here's a question, doesn't the copyright holder have to send the host a takedown notice on this stuff for each individual instance? Or can they really just go to a judge and say "We know they have infringing content, but we need to see their records to prove it."

Anonymous said...

I agree with Douglas Perkins. How would I go about filing a pro se petition to Judge Stanton for a hearing under the Video Privacy Protection Act?

Get a few hundred thousand of those petitions filed and we'll see where this case goes. Maybe we'll end up with Special Masters employed for decades holding hearings for every YouTube user. Who foots the bill for Special Masters anyway?

Scott said...

Google's philosophy of collecting information on everything is a clear and present danger to civil liberties; and in particular, such First Amendment rights as freedom of assenbly and the right to anonymous speech. Google databases are a tempting piece of low-hanging fruit for all sorts of institutions with fascist tendencies, including the RIAA, MPAA, DOJ, and any government agency associated with homeland security.

Here's a YouTube search: "13 y.o. bodybuilder". If you click on the links in the results, would Google's record of that be evidence that you are a paedophile? Or here is a YouTube search, "quran jihad". If you run that search and click on those links, would Google's record of that profile you as a potential member of a terror cell? The possibilities are endless.

If you have ever searched for anything in YouTube that you would be ashamed or afraid to admit to someone else, Google is about to turn all that evidence over to the court. Who knows what's going to happen to it after that.

I don't know if Google is required by statute to keep all this information. If it's not, then they have some explaining to do. (Wouldn't it be strange if Sarbanes-Oxley turned out to be the biggest threat to civil liberties in this century? The road to hell is truly paved with good intentions.)

Anonymous said...

Groklaw coverage:

Anonymous said...

Google should just give Viacom their source code... INTERCAL.


Alter_Fritz said...

how dare you do such links?
haven't you read the warning on ESR's page? ;-P

"Beware! If you aren't a hard-core hacker, you'd best surf right back where you came from now. Nothing but twisted technical yuks and an inexorable descent into brain-sucking obsession awaits beyond this point. You have been warned."

Doing such a "joke" on a page like this where the audience is mostly lawyers (and maybe one or 2 sporadic judges/ their children that tell them in the evening after the day job in the courthouse about stuff) demands clearly to much background knowledge on their behalft hat they could apriciate such links. Do such ones on slashdot not RIvsTP. ;-)

"KISS" is the Motto if you want to archive something positive valuable for the defendants from the "jokes" posted here.

Think less geeky as -for example in- pictures like lizard bittorrent or it's your computer. those jokes can make lawyers/judges that see them maybe rethink their likely believing that when they allow discovery of "IP-addresses -> billpayer on record"-records for allegedly purposes by Plaintiffs to identify a responsible infringer.