Viacom has won, or more accurately partially won, a motion to compel Google to turn over a lot of YouTube records so that the court can tell what proportion of videos are infringing compared to how many are not. Here's the order [PDF]. Google opposed the motion, trying to protect its users, with a Cross Motion for a Protective Order, and it was able to narrow the amount of information Viacom was granted, but it's still a lot. The judge seems to think that what he has ordered will protect user privacy, but of course, I think he is mistaken. Again, lack of tech cluefulness strikes. For some of the reasons why it will not protect user privacy, you can read Kurt Opsahl's article. He hopes Google will appeal the order, believing that it violates the federal Video Privacy Protection Act (VPPA), and it is certainly possible Google will appeal. But do you get now why I have been conducting Summer School in Fair Use? Justia has the entire docket (except for the new order) available to the public, so you can read all about it as your homework assignment. Speaking of fair use, here's Harvard Business Review's concept -- up to 500 words from their articles. Refreshing, no?
Update: Here is the Order as text. Go by the PDF for anythign that matters, as always, but I wanted you to see that the judge was clearly trying to get it right. He denied most of what Viacom asked for, you'll notice. And what they asked for is shamefully broad. That is the villain in this piece. However, some have helped them. Look please at footnote 12, tht last footnote. Some folks have been brazen in violating copyright law. And they have certainly contributed to today's difficulty.
Update 2: Google says it will not appeal; instead it's asking Viacom to let it delete personal identifications from the materials: Viacom General Counsel Michael Fricklas said yesterday that Viacom has no intention of going after individual users. "Even if they uploaded pirated clips, we're not going to use the data to find them. We're not going to use it to sue them. We're not going to use it to look at who they are."
Rather, the company has argued, the data could be used to measure the popularity of copyrighted video against non-copyrighted video.
Yesterday, lawyers for Google said they would not appeal the ruling. They sent Viacom a letter requesting that the company allow YouTube to redact user names and IP addresses from the data.
I'm sure we can rely on Viacom to be nice about it. Not. Actually so far, they seem to be negotiating with Google, according to the Wall St. Journal: A Viacom spokesman said in a statement that the company is working to address Google's concerns but declined to comment about the letter's specific requests. "We will continue to work together on this issue, and Viacom is committed to developing a framework with strong confidentiality protections," he said.
Actually, their promise not to go after individual infringers gives the lie to their alleged concern about it. Why wouldn't they go after them? They prefer to go after Google, the one with the deep pockets? It does appear that this is the main issue. Everyone wants money from Google. And if they have to destroy the Internet to get it, they don't care. Or they don't have a clue how the Internet works and what a Golden Goose they are foolishly destroying. Does Viacom not realize that by making a request like this they are doing serious damage to Google's business, which is based on trust in them to protect users? Discovery is not supposed to destroy the other side. The San Francisco Chronicle reports that Googe, while not appealing, has sent a letter to the judge asking him to reconsider his ruling: Google requested Thursday that the judge reconsider the ruling.
"We see no reason why Viacom and the other plaintiffs seek or require such information," Google said in a letter filed with the court. "Given plaintiffs' stated reason for seeking information from the logging database ... potentially personal identifiable information should be irrelevant." ***********************
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------x
VIACOM INTERNATIONAL INC.,
et al.,
Plaintiffs,
v.
YOUTUBE INC., YOUTUBE LLC,
and GOOGLE INC.,
Defendants.
------------------------------x
07 Civ. 2103 (LLS)
OPINION AND ORDER
-------------------------------x
THE FOOTBALL ASSOCIATION PREMIER
LEAGUE LIMITED, et al., on
behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
YOUTUBE INC., YOUTUBE LLC,
and GOOGLE INC.,
Defendants.
-------------------------------x
07 Civ. 3582 (LLS)
-------------------------------x
Plaintiffs in these related lawsuits (the "Viacom
action" and the "Premier League class action") claim to own
the copyrights in specified television programs, motion
pictures, music recordings, and other entertainment
programs. They allege violations of the Copyright Act of
1976 (17 U.S.C. § 101 et seq.) by defendants YouTube and
Google Inc., who own and operate the video-sharing website
known as "YouTube.com". Plaintiffs claim, as set forth in
Viacom's First Amended Complaint ¶¶ 30-31, that:
Defendants encourage individuals to upload videos
to the YouTube site, where YouTube makes them
available for immediate viewing by members of the
public free of charge. Although YouTube touts
itself as a service for sharing home videos, the
well-known reality of YouTube's business is far
different. YouTube has filled its library with
entire episodes and movies and significant
segments of popular copyrighted programming from
Plaintiffs and other copyright owners, that
neither YouTube nor the users who submit the
works are licensed to use in this manner.
Because YouTube users contribute pirated
copyrighted works to YouTube by the thousands,
including those owned by Plaintiffs, the videos
"deliver[ed]" by YouTube include a vast
unauthorized collection of Plaintiffs'
copyrighted audiovisual works. YouTube's use of
this content directly competes with uses that
Plaintiffs have authorized and for which
Plaintiffs receive valuable compensation.
. . . .
When a user uploads a video, YouTube copies the
video in its own software format, adds it to its
own servers, and makes it available for viewing
on its own website. A user who wants to view a
video goes to the YouTube site . . . enters
search terms into a search and indexing function
provided by YouTube for this purpose on its site,
and receives a list of thumbnails of videos in
the YouTube library matching those terms . . .
and the user can select and view a video from the
list of matches by clicking on the thumbnail
created and supplied by YouTube for this purpose.
YouTube then publicly performs the chosen video
by sending streaming video content from YouTube's
servers to the user's computer, where it can be
viewed by the user. Simultaneously, a copy of
the chosen video is downloaded from the YouTube
website to the user's computer. . . . Thus, the
YouTube conduct that forms the basis of this
2
Complaint is not simply providing storage space,
conduits, or other facilities to users who create
their own websites with infringing materials. To
the contrary, YouTube itself commits the
infringing duplication, distribution, public
performance, and public display of Plaintiffs'
copyrighted works, and that infringement occurs
on YouTube's own website, which is operated and
controlled by Defendants, not users.
(Viacom's brackets).
Plaintiffs allege that those are infringements which
YouTube and Google induced and for which they are directly,
vicariously or contributorily subject to damages of at
least $1 billion (in the Viacom action), and injunctions
barring such conduct in the future.
Among other defenses, YouTube and Google claim the
protection afforded by the Digital Millennium Copyright Act
of 1998 ("DMCA") (17 U.S.C. §§ 512(c)-(d), (i)-(j)), which
among other things limits the terms of injunctions, and
bars copyright-damage awards, against an online service
provider who: (1) performs a qualified storage or search
function for internet users; (2) lacks actual or imputed
knowledge of the infringing activity; (3) receives no
financial benefit directly from such activity in a case
where he has the right and ability to control it; (4) acts
promptly to remove or disable access to the material when
his designated agent is notified that it is infringing;
(5) adopts, reasonably implements and publicizes a policy
3
of terminating repeat infringers; and (6) accommodates and
does not interfere with standard technical measures used by
copyright owners to identify or protect copyrighted works.
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". YouTube and Google
cross-move pursuant to Fed. R. Civ. P. 26(c) for a
protective order barring disclosure of that search code,
which they contend is responsible for Google's growth "from
its founding in 1998 to a multi-national presence with more
than 16,000 employees and a market valuation of roughly
$150 billion" (Singhal Decl. ¶¶ 3, 11), and cannot be
disclosed without risking the loss of the business.
4
1. Search Code
The search code is the product of over a thousand person-years of work. Singhal Decl. ¶ 9. There is no dispute that its secrecy is of enormous commercial value. Someone with access to it could readily perceive its basic design principles, and cause catastrophic competitive harm to Google by sharing them with others who might create their own programs without making the same investment. Id. ¶ 12. Plaintiffs seek production of the search code to support their claim that "Defendants have purposefully designed or modified the tool to facilitate the location of infringing content." Pls.' Reply 10. However, the predicate for that proposition is that the "tool" treats infringing material differently from innocent material, and plaintiffs offer no evidence that the search function can discriminate between infringing and non-infringing videos. YouTube and Google maintain that "no source code in existence today can distinguish between infringing and non-infringing video clips -- certainly notwithout the active participation of rights holders" (Defs.' Cross-Mot. Reply 11), and Google engineer Amitabh Singhal declares under penalty of perjury that:
5
The search function employed on the YouTube
website was not, in any manner, designed or
modified to facilitate the location of allegedly
infringing materials. The purpose of the YouTube
search engine is to allow users to find videos
they are looking for by entering text-based
search terms. In some instances, the search
service suggests search terms when there appears
to be a misspelling entered by the user and
attempts to distinguish between search terms with
multiple meanings. Those functions are automated
algorithms that run across Google's services and
were not designed to make allegedly infringing
video clips more prominent in search results than
non-infringing video clips. Indeed, Google has
never sought to increase the rank or visibility
of allegedly infringing material over non-
infringing material when developing its search
services.
Singhal Reply Decl. ¶ 2.
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.
Nor do plaintiffs offer evidence supporting their
conjecture that the YouTube.com search function might be
adaptable into a program which filters out infringing
6
videos. Plaintiffs wish to "demonstrate what Defendants
have not done but could have" to prevent infringements,
Pls.' Reply 12 (plaintiffs' italics), but there may be
other ways to show that filtering technology is feasible
and reasonably could have been put in place.
Finally, the protections set forth in the stipulated
confidentiality order are careful and extensive, but
nevertheless not as safe as nondisclosure. There is no
occasion to rely on them, without a preliminary proper
showing justifying production of the search code.
Therefore, the cross-motion for a protective order is
granted and the motion to compel production of the search
code is denied.
7
2. Video ID Code
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. That program's source code is the product of "approximately 50,000 man hours of engineering time and millions of dollars of research and development costs", and maintaining its confidentiality is essential to prevent others from creating competing programs without any equivalent investment, and to bar users who wish to post infringing content onto YouTube.com from learning ways to trick the Video ID program and thus "escape detection." Salem Decl. ¶ ¶ 8-12.
Plaintiffs claim that they need production of the Video ID source code to demonstrate what defendants "could be doing -- but are not -- to control infringement" with the Video ID program (pls.'s Reply 61.) However, plaintiffs
8
can learn how the Video ID program works from use and
observation of its operation (Salem Decl. ¶ 13), and
examination of pending patent applications, documentation
and white papers regarding Video ID (id.), all of which are
available to them (see Defs.' Opp. 7). If there is a way
to write a program that can identify and thus control
infringing videos, plaintiffs are free to demonstrate it,
with or without reference to the way the Video ID program
works. But the question is what infringement detection
operations are possible, not how the Video ID source code
makes it operate as it does. 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.
Therefore, the motion to compel production of the
Video ID code is denied.
3. Removed Videos
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). Plaintiffs claim that their
9
direct access to the removed videos is essential to
identify which (if any) infringe their alleged copyrights.
Plaintiffs offer to supply the hard drives needed to
receive those copies (id. 41), which defendants store on
computer hard drives.
Defendants concede that "Plaintiffs should have some
type of access to removed videos in order to identify
alleged infringements" (Defs.' Opp. 27), but propose to
make plaintiffs identify and specify the videos plaintiffs
select as probable infringers by use of data such as their
titles and topics and a search program (which defendants
have furnished) that gives plaintiffs the capacity both to
run searches against that data and to view "snapshots"
taken from each removed video. That would relieve
defendants of producing all of the millions of removed
videos, a process which would require a total of about five
person-weeks of labor without unexpected glitches, as well
as the dedication of expensive computer equipment and
network bandwidth. Do Decl. ¶¶ 5-7.
However, it appears that the burden of producing a
program for production of all of the removed videos should
be roughly equivalent to, or at least not significantly
greater than, that of producing a program to create and
10
copy a list of specific videos selected by plaintiffs (see
Davis Decl. ¶ 21).
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. Video-Related Data from the Logging Database
Defendants' "Logging" database contains, for each
instance a video is watched, the unique "login ID" of the
user who watched it, the time when the user started to
watch the video, the internet protocol address other
devices connected to the internet use to identify the
user's computer ("IP address"), and the identifier for the
video. Do Sept. 12, 2007 Dep. 154:8-21 (Kohlmann Decl. Ex.
B); Do Decl. ¶ 16. That database (which is stored on live
computer hard drives) is the only existing record of how
often each video has been viewed during various time
periods. Its data can "recreate the number of views for
any particular day of a video." Do Dep. 211:16-21.
11
Plaintiffs seek 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. Pls.' Mot. 19.
They need the data to compare the attractiveness of
allegedly infringing videos with that of non-infringing
videos. A markedly higher proportion of infringing-video
watching may bear on plaintiffs' vicarious liability claim,
and defendants' substantial non-infringing use defense.
Defendants argue generally that plaintiffs' request is
unduly burdensome because producing the enormous amount of
information in the Logging database (about 12 terabytes of
data) "would be expensive and time-consuming, particularly
in light of the need to examine the contents for privileged
and work product material." Defs.' Opp. 22.
But defendants do not specifically refute that "There
is no need to engage in a detailed privilege review of the
logging database, since it simply records the numbers of
12
views for each video uploaded to the YouTube website, and
the videos watched by each user" (Pls.' Reply 45). While
the Logging database is large, all of its contents can be
copied onto a few "over-the-shelf" four-terabyte hard
drives (Davis Decl. ¶ 22). Plaintiffs' need for the data
outweighs the unquantified and unsubstantiated cost of
producing that information.
Defendants argue that the data should not be disclosed
because of the users' privacy concerns, saying that
"Plaintiffs would likely be able to determine the viewing
and video uploading habits of YouTube's users based on the
user's login ID and the user's IP address" (Do Decl. ¶ 16).
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
5
The statute defendants point to, 18 U.S.C. § 2710 (titled
"Wrongful disclosure of video tape rental or sale records"), prohibits
video tape service providers from disclosing information on the
specific video materials subscribers request or obtain, and in the case
they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570,
572-73 (W.D.Wis. 2007) (the "subpoena is troubling because it permits
the government to peek into the reading habits of specific individuals
without their prior knowledge or permission"), the court on First
Amendment grounds did not require an internet book retailer to disclose
the identities of customers who purchased used books from the grand
jury's target, a used book seller under investigation for tax evasion
and wire and mail fraud in connection with his sale of used books
through the retailer's website.
13
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. Video-Related Data from the User and Mono Databases
Defendants' "User" and "Mono" databases contain
information about each video available in YouTube's
collection, including its user-supplied title and keywords,
public comments from others about it, whether it has been
flagged as inappropriate by others (for copyright
infringement or for other improprieties such as obscenity)
and the reason it was flagged, whether an administrative
14
action was taken in response to a complaint about it,
whether the user who posted it was terminated for copyright
infringement, and the username of the user who posted it.
Defendants store the User and Mono databases on computer
hard drives, and have agreed to produce specified data from
them which concern the removed videos and those publicly
available videos which plaintiffs identify as infringing
"works-in-suit". Plaintiffs now seek production of, "for
the rest of the videos, all of the data fields Defendants
have agreed to provide for works-in-suit." Pls.' Mot. 16.
Plaintiffs give a variety of reasons for requesting
data for the complete universe of videos available on
YouTube: to identify alleged infringements that are not
yet works-in-suit; to find evidence (especially in the
public comments) that defendants knew or should have known
about infringing activity; and to determine "the
proportion or extent of Defendants' control over the
YouTube website ---- such as what percentage of videos have
been restricted, reviewed and/or flagged by the Defendants
for any reason" (Pls.' Reply 47-48), which they argue is
15
relevant (among other things) to show that defendants have
an ability to control infringements. Plaintiffs contend
that only direct access to the electronic data would give
them "the ability to quickly search, sort and analyze
millions of pieces of information." Pls.' Reply 45.
Defendants contend that plaintiffs' request is
overbroad because it encompasses almost all of the data in
the User and Mono databases, which contain information
about millions of non-infringing videos (Defs.' Opp. 18),
and have no data reflecting "any review of a flagged video,
or disciplinary actions taken by YouTube on a video flagged
by a user as inappropriate" for "the substantial majority
of the videos" (Do Decl. ¶ 15). Defendants argue that
plaintiffs' request is unduly burdensome, and that they
have fully accommodated plaintiffs' need to identify
potential infringements by giving plaintiffs access to use
a search program "which allows users to search for and
watch any video currently available on YouTube." Defs.'
Opp. 17, 21.
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.
16
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. Database Schemas
Plaintiffs seek the schemas for the "Google Advertising" and "Google Video Content" databases. A schema is an electronic index that shows how the data in a database are organized by listing the database's fields and tables, but not its underlying data.
A. Google Advertising Schema
Google earns most of its revenue from fees it charges advertisers to display advertisements on Google.com (the "AdWords" program) or on third party websites that participate in its "AdSense" program. Huchital Decl. ¶¶ 1-7. Google stores data about each of the bilions of advertising transactions made in connection with those
17
programs in the Google Advertising database. Id. The
schema for that database "constitutes commercially
sensitive information regarding Google's advertising
business", the disclosure of which would permit others to
profit without equivalent investment from the "years of
refinement and thousands of person hours" of work Google
spent selecting the numerous data points it tracks in
connection with its advertising programs. Id. ¶¶ 8-10.
Only trivial percentages of the fields and tables in the
database "possibly relate to advertising revenue generated
from advertisements run on YouTube" (id. ¶ 7), and
defendants have "already agreed to provide Plaintiffs with
the small amount of YouTube-related data contained in the
Google Advertising database" (Defs.' Opp. 25).
Plaintiffs argue that the schema is relevant to "show
what Defendants could have or should have known about the
extent to which their advertising revenues were associated
with infringing content, and the extent to which Defendants
had the ability to control, block or prevent advertising
from being associated with infringing videos." Pls.' Reply
50 (italics in original).
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),
18
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.
Therefore, the motion for production of the Google
Advertising schema is denied.
B. Google Video Schema
By plaintiffs' description the Google Video Content
database stores "information Defendants collect regarding
videos on the Google Video website, which is a
video-sharing website, similar to YouTube, that is operated by
Defendant Google." Pls.' Mot. 22. The Google Video
website has its own video library, but searches for videos
on it will also access YouTube videos. See Pls.' Reply 51.
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
19
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.
7. Private Videos and Related Data
YouTube.com users may override the website's default
setting----which makes newly added videos available to the
public----by electing to mark as "private" the videos they
post to the website. Plaintiffs move to compel production
of copies of all those private videos, which can only be
viewed by others authorized by the user who posted each of
them, as well as specified data related to them.
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
20
subscribers, and ECPA § 2702 contains no exception for
disclosure of such communications pursuant to civil
discovery requests. See In re Subpoena Duces Tecum to AOL,
LLC, No. 1:07mc34, ___ F. Supp. 2d ___, 2008 WL 1956266, *4
(E.D.Va. Apr. 18, 2008).
Plaintiffs claim that users have authorized disclosure
of the contents of the private videos pursuant to ECPA §
2702(b)(3) (remote computing service providers "may divulge
the contents of a communication * * * with the lawful
consent of * * * the subscriber") by assenting to the
YouTube website's Terms of Use and Privacy Policy, which
contain provisions licensing YouTube to distribute user
submissions (such as videos) in connection with its website
and business, disclaiming liability for disclosure of user
submissions, and notifying users that videos they divulge
21
online in the public areas of the website may be viewed by
the public. None of those clauses can fairly be
construed as a grant of permission from users to reveal to
plaintiffs the videos that they have designated as private
and chosen to share only with specified recipients.
But the ECPA does not bar disclosure of non-content
data about the private videos (e.g., the number of times
each video has been viewed on YouTube.com or made
accessible on a third-party website through an 'embedded'
link to the video). Plaintiffs argue that such data are
relevant to show whether videos designated private are in
fact shared with numerous members of the public and
therefore not protected by the ECPA, and to then obtain
discovery on their claim (supported by evidence) that
users abuse YouTube's privacy feature "to share infringing
22
videos with any interested member of the public while
evading detection by content owners" (Pls.' Reply 62). It
is not clear from this record whether plaintiffs'
interpretation of the ECPA is correct, but their view is
colorable, as the statute's legislative history states that
"a subscriber who places a communication on a computer
'electronic bulletin board,' with a reasonable basis for
knowing that such communications are freely made available
to the public, should be considered to have given consent
to the disclosure or use of the communication." H.R. Rep.
No. 99-647, at 66 (1986). 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.
Therefore, the motion to compel is denied at this
time, except to the extent it seeks production of specified
non-content data about such videos.
That ruling is unaltered by plaintiffs' contention
that defendants disclose private videos "to third party
content owners as part of their regular business dealings"
(Pls.' Reply 57), as supposedly shown by a clause in the
Content Identification and Management Agreement between
Viacom and Google which bars Viacom from disclosing to any
23
third party private videos it receives during the process
of resolving copyright infringement claims against such
videos (see Wilkens Decl. Ex. T, ¶ 4). The record shows
that defendants do not disclose to content owners any
private videos processed for potentially infringing the
owners' copyrights unless defendants receive the express
consent of the users who designated the videos as private
(Salem Sur-Reply Decl. ¶¶ 1-5), and that the clause
plaintiffs rely upon merely requires content owners to
maintain the confidentiality of such consensually divulged
private videos (id.).
CONCLUSION
For the reasons set forth above:
(1) The cross-motion for a protective order
barring disclosure of the source code for the
YouTube.com search function is granted, and the
motion to compel production of that search code is
denied;
(2) The motion to compel production of the
source code for the Video ID program is denied;
(3) The motion to compel production of all
removed videos is granted;
(4) 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;
24
(5) The motion to compel production of 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 motion to compel production of the schema for the Google Advertising database is denied;
(7) The motion to compel production of the schema for the Google Video Content database is granted; and
(8) The motion to compel production of the private videos and data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.
So ordered.
Dated: July 1, 2008
New York, New York
____[signature]______
Louis L. Stanton
U.S.D.J.
1 Defendants YouTube Inc. and YouTube LLC are both referred to as
"YouTube."
2
In the Viacom action (Housley Decl. ¶ 2):
Viacom is currently using fingerprinting technology
provided by a company called Auditude in order to identify
potentially infringing clips of Viacom's copyrighted works
on the YouTube website. The fingerprinting technology
automatically creates digital "fingerprints" of the audio
track of videos currently available on the YouTube website
and compares those fingerprints against a reference library
of digital fingerprints of Viacom's copyrighted works. As
this comparison is made, the fingerprinting technology
reports fingerprint matches, which indicate that the
YouTube clip potentially infringes one of Viacom's
copyrighted works.
3
See Fonovisa, Inc. v. Cherry Action, Inc., 76 F.3d 259, 263 (9th
Cir. 1996) ("financial benefit prong of vicariously liability" claim
may be satisfied by demonstrating that "infringing performances enhance
the attractiveness of the venue to potential customers" and act as "a
`draw' for customers" from whom the venue's operator derives income).
4
See Sony Corp. of America v. Universal Studios, Inc., 464 U.S.
417, 442 (1983) (barring secondary liability based on imputed intent to
cause infringements from the design or distribution of a product
"capable of substantial noninfringing uses"); Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 933-34 (2005) (declining
"to add a more quantified description" of how much non-infringing use
qualifies as substantial under Sony).
5
The statute defendants point to, 18 U.S.C. § 2710 (titled
"Wrongful disclosure of video tape rental or sale records"), prohibits
video tape service providers from disclosing information on the
specific video materials subscribers request or obtain, and in the case
they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570,
572-73 (W.D.Wis. 2007) (the "subpoena is troubling because it permits
the government to peek into the reading habits of specific individuals
without their prior knowledge or permission"), the court on First
Amendment grounds did not require an internet book retailer to disclose
the identities of customers who purchased used books from the grand
jury's target, a used book seller under investigation for tax evasion
and wire and mail fraud in connection with his sale of used books
through the retailer's website.
6 Plaintiffs have submitted a snapshot of one YouTube user's web
page in which the user states "I keep almost all of my DTV [Disney
Television] videos private * * * * Anyone who wants to see the old
ones, just click on Add as Friend" and another user, in a public
comment posted to that page, states "hey I was wondering if you could
help me out you see youtube has deleted all my videos and I was
wondering if you could help me out by subscribing to my favorites."
Wilkins Decl. Ex. R (misspellings corrected).
7 Defendants have agreed to produce the schema for the "Claims" database. See Defs.' Opp. 24 n. 9.
8
The prohibition against divulgence of stored subscriber
communications set forth in ECPA § 2702(a)(2) applies only "if the
provider is not authorized to access the contents of any such
communications for purposes of providing any services other than
storage or computer processing" (id. § 2702(a)(2)(B)), but defendants
satisfy that condition here because their authorization to access and
delete potentially infringing private videos is granted in connection
with defendants' provision of alleged storage services.
9
"However, by submitting User Submissions to YouTube, you hereby
grant YouTube a worldwide, non-exclusive * * * license to * * *
distribute * * * the User Submissions in connection with the YouTube
Website and YouTube's (and its successors' and affiliates') business."
Kohlmann Decl. Ex. N, § 6C. This authorizes YouTube to post the video
on the website; the privacy designation restricts to whom it may be
shown.
10
"YouTube does not guarantee any confidentiality with respect to
any User Submissions." Kohlmann Decl. Ex. N, § 6A.
11
The record shows that the provision of the Privacy Policy
plaintiffs point to, which states that "Any videos that you submit to
the YouTube Sites * * * may be viewed by the general public" (Kohlmann
Decl. Ex. O) refers to "personal information or video content that you
voluntarily disclose online (on discussion boards, in messages and chat
areas, within your playback or profile pages, etc.)" which "becomes
publicly available" (id.).
12
Plaintiffs submitted a snapshot of a YouTube user's web page
entitled "THE_RUGRATS_CHANNEL" which states "Disclaimer: Rugrats_and
all Rugrats_related items are a copyright of Viacom" and on which the
user states (Wilkens Decl. Ex. R):
WELCOME TO MY_RUGRATS_PAGE. Previously rbt200, this is my
new channel. The old one got deleted so I thought I'd
start again, but this time, it's JUST_RUGRATS! A whole
channel dedicated to this fantastic cartoon! I will be
posting whole episodes over the coming weeks so be sure to
subscribe or add me as a friend because they might be set
to private.
24
|