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How Viacom Ambushed YouTube and You - Updated 2Xs, Docket
Friday, July 04 2008 @ 11:27 PM EDT

I found some evidence Google tried hard to protect user confidentiality, in some letters to the judge in the court docket of Viacom v. YouTube. After the Order [PDF; text here] issued, Google didn't give up, but is continuing even now by asking the court in a letter to reconsider the decision and let them redact personally identifiable data. They fought hard against Viacom's motion to compel [PDF]. And the evidence indicates to me that what happened was a kind of SCO-like maneuver on Viacom's part.

Viacom filed its motion, Google filed its memo in opposition combined with a cross motion for a protective order [PDF], and then Viacom in its reply, which is supposed to be the final word before a motion is decided, put in new materials and new legal arguments, according to Google's letter. As you remember, from SCO v. IBM, when that happens -- and it's not supposed to happen -- the other side can ask the judge to let it file a surreply, so it gets a chance to answer the new arguments and evidence, which otherwise would stand unopposed. Viacom denied the accusation, but Google's letter was successful, which ought to tell us something.

I'll show you the letters that Google and Viacom sent to the judge regarding the motion to compel, and in reading them, I think you will get a more rounded glimpse of what went on, despite the sealing of the memoranda of law in connection with the motion. I have some more filings too, to complete the picture, including an exhibit listing videos on YouTube that Viacom views as infringing.

As you will have noticed, only the bare motion is available, not the memorandum or the exhibits attached referenced in Google's letter. Google says Viacom filed in support of their "37 page Motion to Compel... a 62 page reply brief along with new declarations from expert and fact witnesses, and more than a dozen new exhibits". None of it is available to the public. Google's memorandum isn't available either, just the cover filing.

I hope someone with more resources than Groklaw petitions the court to get at least redacted versions of those documents. There is a Stipulated Joint Protective Order [PDF] in this litigation regarding procedures to be followed on handling confidential material which the parties are to follow unless the judge orders otherwise. So somebody can ask the judge to decide differently than the parties have, and it's clear the public is not only interested in the outcome of this case but directly affected. There seems to be quite a lot that isn't appearing in the docket. After reading the letters, though, I think you'll be able to identify who is the bad guy in this picture.

Here's the docket entry for these three items, and note that the last two appear to be the same letter, but I include them both because the docket does:

101 - Filed: 03/31/2008
Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Andrew H. Schapiro dated 3/28/2008 re: Requesting permission to file a sur-reply responding to the new material that Plaintiffs have presented. ENDORSEMENT: YouTube may file a sur-reply. SO ORDERED. (Signed by Judge Louis L. Stanton on 3/31/2008) (ae)

102 - Filed & Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Susan J. Kohlman dated 4/1/2008 re: Requesting that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel. ENDORSEMENT: Denied. (Signed by Judge Louis L. Stanton on 4/1/2008) (jpo)

103 - Filed & Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Susan J. Kohlmann dated 4/1/08 re: counsel writes on behalf of the Plaintiffs to respectfully request that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel. ENDORSEMENT: Denied. (Signed by Judge Louis L. Stanton on 4/1/08) (djc)

I think the duplication happened because one letter was hand delivered and one electronically filed. The first letter is from Google/YouTube objecting to Viacom adding new legal arguments and new evidence to its Reply Memo on its motion and asking for the right to file a surreply. Here's a snip from the letter:

On behalf of Defendants YouTube, Inc., YouTube LLC, and Google Inc. ("YouTube"), we write to object to the presentation of new evidence and legal arguments in Plaintiffs' Joint Reply in Support of Plaintiffs' Joint Motion to Compel ("Pls. Reply"). YouTube requests permission to file a short sur-reply responding to the new material that Plaintiffs have presented. Alternatively, YouTube ask that this improper material not be considered by the Court.

In support of their 37 page Motion to Compel, Plaintiffs filed a 62 page reply brief along with new declarations from expert and fact witnesses, and more than a dozen new exhibits. Plaintiffs' brief also includes a variety of new arguments and evidence that could and should have been presented in connection with their original motion. In so doing Plaintiffs have disregarded this Court's established rules governing the introduction of new material for the first time in reply briefs.

A few examples illustrate the problem. First, Plaintiffs' reply includes a number of entirely new legal arguments not made in their opening brief. See, e.g., Pls. Reply 6 (arguing for the first time that the CMS source code is relevant to show what YouTube theoretically could do to prevent infringements, and offering new expert declaration of Randall Davis as support); id at 37 (arguing that YouTube's proposal to produce a subset of removed videos rather than the entire universe would invade Plaintiffs' work product privilege and "internal investigatory efforts"); id. at 50:51 (arguing new theories of relevance for Google Ads Database schema, including its alleged relevance to "Plaintiffs' secondary infringement claims, and to a showing of willfulness.").

Second, as support for their argument concerning private videos, Plaintiffs offered new evidence in the form of the "Content Identification and Management Agreement" between Google and Viacom. See Reply Declaration of Scott B. Wilkens in Support of Plaintiff's Motion to Compel ("Wilkens Reply Decl."), Ex. T. Under this agreement, Viacom is now a participant in YouTube's Content Management System ("CMS") and has the ability to use YouTube's Video ID technology to take down clips that match reference samples that Viacom provides to YouTube. Plaintiffs argue that this Agreement is evidence that "Defendants disclose [private] videos to third party content owners as part of their regular business dealings." Pls. Reply 57. If Plaintiffs intended to make this argument, they were obliged to do so (and submit any supporting evidence) with their opening motion. Instead, Plaintiffs waited until their reply, thereby denying YouTube the opportunity to respond to Plaintiffs' mischaracterization of the evidence. Had Plaintiffs done so, YouTube would have been able to explain that it does not provide private videos to content partners without express user consent. If a private video is flagged as a "match" to a reference sample, YouTube does not provide the video to the copyright owner unless and until the user who uploaded the video affirmatively and specifically consents to the disclosure. Thus, contrary to the argument that Plaintiffs present in their reply, the CMS Agreement actually undermines their consent theory under the Electronic Communications Privacy Act.

Third, in their opening brief, Plaintiffs argued that they need actual copies of the removed videos because CMS is not sufficient to allow them to identify alleged infringements. See Memorandum of law in Support of Plaintiffs' Joint Motion to Compel 12. They cited no evidence in support of that claim. Only on reply did Plaintiffs offer such evidence -- in the form printouts from the YouTube website that Plaintiffs say depict public videos on YouTube that are purportedly "infringing" though none of these clips has been identified as a work-in-suit).... There is no reason why Plaintiffs could not have submitted this evidence in connection with their original motion, and no justification for only doing so now. And Plaintiffs' tactic is unfair. Had the material been submitted in a timely manner, YouTube would have been able to point out that "thumbnails" from videos as shown in the printouts are exactly the type of information Plaintiffs could view in CMS Descriptive Text Search and use as a basis for requesting copies of the videos.

It is inappropriate for Plaintiffs to make only skeletal arguments in their opening brief, while fleshing out and providing evidentiary support for those arguments only on reply. YouTube therefore asks the Court to allow the filing of a sur-reply. Alternatively, the Court should decline to consider the new matter submitted for the first time in Plaintiffs' reply. See, e.g. Wolters Kluwer Fin. Svcs. Inc. v Scivantage, 2007 WL 1098714, at *1 (S.D.N.Y. Apr. 12, 2007); Viacom Int'l v. Kearney, 1999 WL 92601, at *5 n.2 (S.D.N.Y. Feb. 22, 1999).

Simple fairness. Naturally, the judge granted the request. Yes, I saw Randall Davis. I'm sorry to see him appearing for Viacom, but there it is. Whoever hires an expert first usually gets him.

Viacom, in the next letters, objects to the court giving YouTube that opportunity. They already had a kind of surreply, they argue, by filing a cross motion, and apparently they put a lot of effort into it:

Defendants have already filed what is in effect a surreply to a substantial portion of Plaintiffs' motion to compel. Defendants combined their opposition to Plaintiffs' motion to compel with a self-styled "motion for protective order" against production of source code for the YouTube search function. As a result, Defendants added a new round of briefing to the schedule previously negotiated by the parties and "so ordered" by the Court, because they were able to use their reply in support of the "motion for a protective order" to respond to the arguments Plaintiffs made in their reply in support of their motion to compel -- in effect a surreply to Plaintiffs' motion to compel on the search code issue. Rather than burden the Court by objecting to Defendants' strategem, Plaintiffs agreed to a schedule for Defendants to file their additional round of briefing after Plaintiffs filed their reply on March 14 -- more than two weeks ago. In fact, after Plaintiffs filed their reply on March 14, defendants requested, and Plaintiffs agreed to, a further extension of time for Defendants to file their reply in support of their "motion for protective order" because Defendants stated taht they needed more time to respond to Plaintiffs' reply brief. This request was so ordered by the Court based on my joint letter of March 19. At the time, Plaintiffs had no idea that Defendants intended to ask on March 28 for an additional extra round of briefing that would further delay resolution of these motions.

Against this background, it is difficult to understand Defendants' request for additional briefing as anything other than an effort to further delay resolving the outstanding motions to compel. There is simply no merit to Defendants' claim that Plaintiffs presented inappropriate "new material" in their reply brief, and certainly nothing that warrants a further round of briefing. Plaintiffs' reply papers did nothing more than respond to issues raised by Defendants in opposition and amplify points already made in Plaintiffs' opening brief. Defendants can hardly take issue with this approach given that their own reply in support of their own motion to compel includes new arguments, a new attorney affidavit, and new exhibits. See Reply in Support of Defendants' Motion to Compel and the supporting Declaration of Michael H. Rubin, filed March 14, 2008. Similarly, Defendants reply in support of their motion for a protective order includes new arguments and new attorney and fact witness affidavits. Reply in Support of Defendants' Cross-Motion for Protective Order and supporting Declaration of Michael H. Rubin and Declaration of Amit Singhal, dated March 28, 2008. Plaintiffs have not sought leave to file surreplies to those motions because they do not wish to burden the Court with additional rounds of briefing.

In all events, the request for a surreply lacks any basis. Although Defendants claim that Plaintiffs' "have disregarded this Court's established rules governing the introduction of new material for the first time in reply briefs," Defendants never state what those established rules are.

That last part is hilarious to me, given that the rules of motion practice are pretty much carved in stone. It's a bit like saying you claimed gravity exists, but you failed to reference proof of its existence. The letter continues, and you can read it in its entirely in the PDF. Anyway, as you can see in the docket entry, the judge denied Viacom's request. But in the letter we get a glimpse of all that Viacom asked for, and while we could discern it already from the order that mostly denied Viacom's requests, it's still stunning to me to learn that Viacom did what it did, apparently, in a Reply Memo.

Hopefully either Viacom will agree to Google's request to let it redact personally identifiable user data or the judge will agree to reconsider his decision and order it done before Google turns it over to these folks.

Did you notice how they entered into an agreement with YouTube/Google and then used it against them in the motion? Nice. I don't know how reassured you feel by Viacom's assurances that it will work with Google to ensure confidentiality, but I trust them not at all now. I started out saying both sides had a point, but I lose confidence in any law firm that puts new materials in a reply. Sorry. But we've seen enough of lawyer tricks to last to doomsday, thanks. And when we see it, we start taking out our magnifying glass.

As for the missing materials, I'll show you the newer entries that Justia doesn't have up yet, from PACER. Fair warning, though. The exhibit attached to Viacom's Amended Complaint is 1812 pages long, yes, 1812, as in the war of. That's 3.29 MB. But you'll probably want to read it since it is the list of all the YouTube videos that Viacom has placed in suit.

Update 2: Also, don't forget that we have as text the Amended Complaint by Viacom and Google's Answer as text here. If you read Google's Answer, you'll grok the whole game Viacom is playing, I think:

Viacom's lawsuit challenges the protections of the Digital Millennium Copyright Act ("DMCA") that Congress enacted a decade ago to encourage the development of services like YouTube. Congress recognized that such services could not and would not exist if they faced liability for copyright infringement based on materials users uploaded to their services. It chose to immunize these services from copyright liability provided they are properly responsive to notices of alleged infringement from content owners.

Looking at the online world today, there is no question that Congress made the correct policy choice. Legitimate services like YouTube provide the world with free and authorized access to extraordinary libraries of information that would not be available without the DMCA -- information created by users who have every right to share it. YouTube fulfills Congress's vision for the DMCA. YouTube also fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.

Does that illuminate Viacom's statement that it has no intention of going after individual infringers? Here's the law Viacom seems to be trying to get this judge to change, the 17 U.S.C. Sec. 512, the Safe Harbor provisions of the DMCA. One excerpt:

# (a) Transitory Digital Network Communications. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -
  • (1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
  • (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
  • (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
  • (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
  • (5) the material is transmitted through the system or network without modification of its content.

Having read that, I encourage you to read the Viacom complaint, and ask the obvious question: given how the law reads, why are they suing Google instead of individual infringers? You may recall that when the RIAA started its litigation rampage, it began by trying to subpoena Verizon instead of the much harder -- and less remunerative -- course of finding and serving individuals. They lost that battle in the courts, thanks to Verizon's willingness to fight all the way to the Supreme Court. Thank you, Verizon. This case, Viacom v. YouTube, is, in my view, even more significant, and if you think the discovery order has altered your world for the worse, wait until you see what happens if Viacom prevails in the end. End update 2.]

Here are the other filings:

96 - Filed & Entered: 03/10/2008
Transcript
Docket Text: TRANSCRIPT of proceedings held on 1/25/08 before Judge Louis L. Stanton. (ama)

97 - Filed & Entered: 03/13/2008
Transcript
Docket Text: TRANSCRIPT of proceedings held on 2/22/08 before Judge Louis L. Stanton. (ama)

101 - Filed: 03/31/2008
Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Andrew H. Schapiro dated 3/28/2008 re: Requesting permission to file a sur-reply responding to the new material that Plaintiffs have presented. ENDORSEMENT: YouTube may file a sur-reply. SO ORDERED. (Signed by Judge Louis L. Stanton on 3/31/2008) (ae)

102 - Filed & Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Susan J. Kohlman dated 4/1/2008 re: Requesting that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel. ENDORSEMENT: Denied. (Signed by Judge Louis L. Stanton on 4/1/2008) (jpo)

103 - Filed & Entered: 04/02/2008
Endorsed Letter
Docket Text: ENDORSED LETTER addressed to Judge Louis L. Stanton from Susan J. Kohlmann dated 4/1/08 re: counsel writes on behalf of the Plaintiffs to respectfully request that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel. ENDORSEMENT: Denied. (Signed by Judge Louis L. Stanton on 4/1/08) (djc)

105 - Filed & Entered: 04/10/2008
Stipulation and Order
Docket Text: STIPULATION AND ORDER, all Mayer Brown attorneys and other personnel who performed services in connection with Mayer Brown's prior engagement by Plaintiffs and their affiliates relating to document retention shall be screened from offensive document discovery directed at Viacom in the action titled Viacom Intl etal v. YouTube etal, and as further set forth in this document. This screen shall continue in place only until the conclusion of fact discovery. (Signed by Judge Louis L. Stanton on 4/9/08) (cd)

106 - Filed: 04/24/2008
Entered: 04/25/2008
Amended Complaint
Docket Text: AMENDED COMPLAINT for Declaration and injunctive Relief and Damages and Demand for Jury Trial amending [1] Complaint, against Youtube, Inc., Youtube, LLC, Google, Inc.Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. Related document: [1] Complaint, filed by Country Music Television, Inc., Paramount Pictures Corporation, Comedy Partners, Viacom International, Inc., Black Entertainment Television, LLC.(jmi) (Additional attachment(s) added on 5/6/2008: # (1) Exhibit) (dle).

107 - Filed & Entered: 05/15/2008
Protective Order
Docket Text: SECOND AMENDED STIPULATED PRETRIAL PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Louis L. Stanton on 5/14/08) (cd)

108 - Filed & Entered: 05/22/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Donald B. Verrilli, Jr on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, DC, USA 20001-4412, 202-639-6000. (Verrilli, Donald)

109 - Filed & Entered: 05/22/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Michael Brian Desanctis on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, DC, USA 20001-4412, 202-639-6000. (Desanctis, Michael)

110 - Filed & Entered: 05/22/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Sharmila Sohoni on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, DC, USA 20001-4412, 202-639-6000. (Sohoni, Sharmila)

111 - Filed & Entered: 05/22/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by William M. Hohengarten on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, DC, USA 20001-4412, 202-639-6000. (Hohengarten, William)

112 - Filed & Entered: 05/23/2008
Answer to Amended Complaint
Docket Text: ANSWER to Amended Complaint with JURY DEMAND. Document filed by Youtube, Inc., Youtube, LLC, Google, Inc..(Mancini, A.)

113 - Filed & Entered: 05/27/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Amy L. Tenney on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, D.C., USA 20001, 202-639-6000. (Tenney, Amy)

114 - Filed & Entered: 05/27/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Scottt Block Wilkens on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, D.C., USA 20001, 202-639-6000. (Wilkens, Scottt)

115 - Filed & Entered: 06/04/2008
Notice of Change of Address
Docket Text: NOTICE OF CHANGE OF ADDRESS by Luke Cardillo Platzer on behalf of Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. New Address: Jenner & Block LLP, 1099 New York Avenue, NW, Suite 900, Washington, DC, USA 20001-4412, (202) 639-6094. (Platzer, Luke)

-- Filed: 06/23/2008
Entered: 06/27/2008
Pretrial Conference - Interim
Docket Text: Minute Entry for proceedings held before Judge Louis L. Stanton: Pretrial Conference held on 6/23/2008. Next conference set for 9/5/08 at 3:00 and 10/28/08 at 3:00. (jmi)

116 - Filed & Entered: 06/24/2008
Order
Docket Text: ORDER; that the issues presented in defendants' motion to Compel dated 2/8/08 are disposed of by the rulings stated upon the record in open court today. (Signed by Judge Louis L. Stanton on 6/23/08) (pl)

117 - Filed & Entered: 07/02/2008
Memorandum & Opinion
Docket Text: OPINION AND ORDER #96195: For the reasons set forth in this Order; (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; (5) the motion to compel production of those data fields which defendants have agreed to produce for the 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 Video 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 the specified non-content data about such videos. So ordered. (Signed by Judge Louis L. Stanton on 7/1/2008) (tve) Modified on 7/2/2008 (mr).

The transcripts of the hearing might be interesting, if anyone wants to order it. I sincerely hope that no one here finds his uploaded video on the list, and if you do, please read the articles on fair use here on Groklaw, on EFF, and elsewhere, which you can find on our Legal Research page. It's important not to cause difficulty for Google or yourself. Frankly, if you can't live without Jackass and Trick my Truck, you probably need to think about your life and prioritize. Viacom and their ilk think you can't live without their products, and sometimes it's useful to ask oneself just what you're willing to pay for them. If the answer is zero, maybe the best thing is to avoid them altogether or restrict yourself to what you'd be willing to upload to your own website, with all the legal consequences built in to that. Yes, I know. Viacom are Neanderthals. But factor that in.

That doesn't mean I agree with the list as being infringing. I haven't viewed them. When I tried to view one of them, it was deleted already, and likely they are all now in the great video heaven in the sky. I did try to find Trick my Truck, but all I find are short clips that are arguably, at least, fair use. Viacom may not agree, of course, as to what is fair use.

Update: There is a statement now on YouTube Blog:

Of course, we have to follow legal process. But since IP addresses and usernames aren't necessary to determine general viewing practices, our lawyers have asked their lawyers to let us remove that information before we hand over the data they're seeking. (You should know, IP addresses identify a computer, not the person using it. It's not possible to determine your identity solely based on your IP address. Rather, an IP address can reveal what geographic area you're connecting from, or which Internet service provider you're using.)

Why do we keep this information in the first place? It helps us personalize the YouTube experience, getting you closer to the videos you most want to watch. We have many features on the site that help users discover and share compelling content, and we're improving the video experience through recommendations, related videos, and personalized directories that help you find meaningful videos.

We'll continue to fight for your right to share and broadcast your work. The court did impose some encouraging limits -- they agreed with us that Viacom should not have access to private videos or our search technology. Also, the information we provide will be designated highly confidential under court order and only Viacom's outside counsel and experts will have access to it.

That's worst-case analysis, if they are forced to turn it all over. Google has asked Viacom to let it redact the material:

Google co-founder, Sergey Brin, said it is the company’s “obligation” to protect the privacy of users.

“We will ask Viacom to respect users’ privacy and allow us to make anonymous the logs before producing them under the court’s order,” Google’s senior litigation counsel, said in a statement.

Carolyn McCarthy on CNET tells us that Viacom would be in contempt of court if it used the data to go after users:

But Viacom will be guilty of contempt of court if it uses that data for anything other than specifically proving the prevalence of piracy on YouTube, a source close to Viacom told CNET News.com on Thursday....

But the source told CNET News.com that a heavy protective order is in place that will keep individuals' personal information cloaked....

The source added that Viacom is looking into user anonymization technology, so that even the low-level personal data that could be exposed--say, YouTube user handles that contain a person's real name--is not accessible to anyone.

Well. If Viacom is looking into anonymization tech, why don't they just let Google do it for them, as they've asked? Makes perfect sense, if Viacom is being for real. I wonder if Viacom has given thought to the far more strict privacy laws in Europe. YouTube is not just a US phenomenon.

Some may have more faith in protective orders than I do. Remember SCO's lawyers reading aloud emails that were marked confidential in open court? When folks game, they game. And who are you going to sue? Some YouTube uploader will sue Viacom? Puh-lease. No, this really needs to get worked out better than this, I think, or there is a risk that Viacom's dark side might get the better of it down the road, after the case is over, for example.

And exactly how would you prove that they identified someone via this data? See what I mean? I remember the AOL keyword search words spill Kurt Opsahl of EFF reminded us of. They thought that material had no personally identifiable information in it. They were wrong.

And digital stuff is just too easy to spill or get hacked. I hope that at a minimum Viacom is required to keep it off any servers that go on the internet and have to encrypt it, so prying eyes don't decide it would be fascinating to read up on people's viewing habits, like has just happened with US passport records. That was against the rules too, but folks did it anyway. There's something about digital records. Must be like mermaids singing. Some just can't resist and they will sink under the waves.

The Independent in the UK asks the right question, does Viacom really want to go down the failed route the music industry went down, only to have to adjust to the new reality anyway?:

Viacom should reconsider its demand for all this information. The firm argues that it needs the details of viewers to support its $1bn legal claim. But Viacom risks a far more expensive public relations disaster if it persists. Furthermore, though it could probably defeat YouTube in the courts, other websites would soon spring up where protected content could be shared.

Television companies would do better to accept that the market has changed. The simple reality is that people can share video content online just as easily as music files. Wise television companies will embrace the technology, rather than attempting to resist it. File-sharing sites could be an effective way to promote the wares of traditional broadcasters. Some, such as the BBC, have already gone down this route.


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