District Court Compels Disclosure of YouTube User Logging Records, Protects Source Code
By Jay Gill — Edited by Sarah Sorscher
The District Court for the Southern District of New York partially granted a discovery motion made by Viacom in its copyright suit against YouTube and YouTube’s parent company Google. The order compels Google to produce the contents of YouTube’s logging database, including the login IDs, IP addresses, and viewing information of YouTube users. The court denied Viacom’s motion to compel production of the protected source code for the Google search engine.
Viacom’s complaint alleges that YouTube is directly or vicariously liable for duplication of copyrighted material on youtube.com, and seeks damages of over $1 billion and injunctions against further infringing conduct.
Wendy Seltzer at the Citizen Media Law Project summarizes the bifurcated outcome of the case: “trade secret wins; privacy loses.” Kurt Opsahl of the Electronic Frontier Foundation calls this a “setback to privacy rights,” and argues that some of the login names and IP address information, which the court states are anonymous, can in fact be used to identify individual users.
The most contentious portion of the 25-page opinion from Judge Louis Stanton concerns YouTube’s logging database. Each time a video is watched on youtube.com, this database records the YouTube account name of the viewer (if he or she has one), the IP address of the viewer’s computer, an identifier for the video, and the time.
Judge Stanton granted Viacom’s request for the entire contents of the logging database, which Viacom claims will reveal whether copyrighted materials are more heavily watched than amateur content. Judge Stanton discounted Google’s argument that disclosure of this information violates users’ privacy, citing Google’s own Public Policy Blog, which has stated that IP addresses cannot be used to identify individual users without more information. He also rejected YouTube’s argument that the information was protected by the 1988 Video Privacy Protection Act (18 U.S.C. § 2710).
Viacom was also successful in its request for copies of all videos that have ever been removed from youtube.com for any reason. Judge Stanton ruled that this discovery is necessary for Viacom to identify infringing videos among the removed material, and that the logistical difficulties in transferring this enormous quantity of data are not prohibitive.
Yet the ruling stated that the Electronic Communications Privacy Act (“ECPA”) 18 U.S.C. § 2510 et seq., does prevent YouTube from disclosing any videos users had labeled “private.” The court protected the videos themselves but granted the motion to compel disclosure of non-content information, such as usage history. Viacom hopes to use this information to test its argument that videos designated as “private” are nevertheless shared with numerous members of the public. Such videos would lose their protected status under Viacom’s interpretation of the ECPA.
The court accepted Google’s argument that the release of its source code, which is a valuable commercial secret, would be devastating to Google’s business. It held that Viacom would need to make a “plausible showing” to demonstrate that Google’s search code was intentionally designed to facilitate the viewing of infringing content. Stanton similarly denied discovery of the source code for of YouTube’s new “Video ID” program, with which copyright owners can search for infringing materials on youtube.com by providing sample clips for reference.
Viacom has stated that it does not intend to use the logging database information to sue individual users for copyright infringement and has issued a statement that it will allow YouTube to strip personally identifiable information from its records before disclosure.
Ellen Nakashima at the Washington Post points out that even if Viacom has promised not to use the data to pursue lawsuits against individuals, the ruling may still pave the way for others to do so.
Groklaw accuses the judge of “lack of tech cluefulness,” but also suggests that users may have contributed to the problem by being brazen about their violations of copyright law.