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Fact Checking Viacom's New Statement on Privacy and YouTube
Wednesday, July 09 2008 @ 05:54 AM EDT

Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this:
A recent discovery order by the Federal Court hearing the case of Viacom v. YouTube has triggered concern about what information will be disclosed by Google and YouTube and how it will be used. Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.

Viacom has been in discussions with Google to develop a framework to share this data. We are committed to a process that will not only comply with the Court’s confidentiality order, but that will also meet our commitment to the strongest possible internet privacy protections.

That's some progress, if it's true, the part about Google redacting it first. But what's that part about Viacom didn't ask for it? They say the same thing on their homepage, where you can see this questionably true statement:

Viacom has not requested any personally identifiable information from YouTube as part of the litigation.

Say what? I think it would be more truthful to say that they *did too* ask for it, Google asked them to let them redact, Viacom saw the public's reaction, and so it agreed. I gather Viacom has noticed that a lot of consumers, as they view us human beings, seriously hate Viacom's guts because of this over-the-top litigation.

Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for. Let's review.

Here's the part of the Order about the logging data:

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,3 and defendants' substantial non-infringing use defense.4

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,5 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.

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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.

If an IP address, without more, can't identify people, someone needs to email the RIAA and clue them in. That isn't all Viacom asked for, of course. It also asked for and got this:

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 ...

Think there might be some personally identifiable info there? I think they have a right to any infringing content, as defined by the law, not Viacom's creative types, but to state that they never asked for any personally identifiable information about you is simply ludicrously easy to disprove. But neither of the above are the broadest request that impacts the public. Here's what else Viacom asked for:

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."

That Viacom request was denied. But put it side by side with Viacom's statement on its homepage ("Viacom has not requested any personally identifiable information from YouTube as part of the litigation"), and you have to laugh. I think they meant to say, we asked for everything we could think of, and now we're sorry we did it, because you hate us now. Well. That's life. People form impressions of us all, based on how we act.

No one is forcing Viacom to put their junk on the internet, you know. They can sell it on DVDs or put it on TV or in whatever ways they used to. But if they do want to enter the internet space, at least they should learn how to behave in the culture in the new medium, instead of trying to make it change to be like its old business model. Hire some geeks, Viacom, will you? Someone who has a blog or a Facebook account? It will shorten your educational process and remove you from This YouTube School of Hard Knocks. I know Viacom intended the hard knocks to be for Google, but it has seriously boomeranged to where we are now presented with the bemusing picture of Viacom knocking its own head really, really hard.

Here's how Viacom can determine whether people like to use YouTube more for noninfringing use or for copyright infringement, and it's a way that doesn't require Google to turn over data on all the human beings who have ever viewed a video there. Here's 2006 a video that has been viewed 10,289,983 times. Just a goofy and creative guy dancing his goofy dance-like-a-3-year-old all over the world. Love the elephants. And the kids in Rwanda. Here's the 2008 version, which is even more adorable, because lots more interesting places were visited and more people joined in the dancing with Matt Harding. Love you, Stockholm. Love the monkeys in Madagascar, dancing in the tulips in the Netherlands, and the flying is space moves in Nevada. Ah, Paris!

The new one has been viewed already 5,032,204 times in less than a month. It's all over the web, not just on YouTube, so even that number is just a hint of the true numbers. Matt explains how he did the video here. [Part 2, the part with the penguins; Part 3.] Yes, he tells more about the rock in Norway. He first posted it on his own site, before YouTube even existed. Bloggers just mirrored it and it grew and grew and finally Cadbury asked him to do a video to use with some gum it has, Stride. So they paid for the 2008 video trip, and it ended up on YouTube. It's now the the world's most popular video on the web. The International Herald Tribune calls 'Dancing' a near-perfect piece of Internet art.

Viacom complained about Rugrats. So here's the results page of searching for Rugrats, and as you can see, the highest viewer number for a short 1.40 minute clip is 997,313 on a clip that's been up for a year or so.

Me too. I'd rather watch Matt too. But let's face it, if I had a taste for Rugrats, a 1.40 minute clip might get me started, after which I might visit Viacom's site and even pay. Wake up, Viacom. When they said the Internet changes everything, it was true. What that means is, you have to change too. And copyright isn't the *only* right that exists on planet earth.


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