Intellectual Property Law

NY Court Orders YouTube User Records Released

By IBLS Editor

In a move denounced by many Online Privacy advocates, a NY District Court has ordered YouTube to surrender its user logs to determine which videos are watched when and by whom. This order represents a marked change in current Privacy law. The order comes in relation to Viacom's billion dollar suit against YouTube, the most popular Internet video website, which is owned by Google. Critics of the ruling claim that the order violates established statutory provisions and goes against basic common-law principles of the U.S. Bill of Rights. Further, some have warned the ruling will certainly be misused in the future, unless it is reigned in immediately. And, in response to the storm of criticism the ruling has generated, Google almost immediately created a privacy link to assuage its critics, taking viewers to a detailed description of their privacy policy.

Viacom Inc. and subsidiaries Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black Entertainment Television, LLC filed a lawsuit against YouTube and parent Google Inc. for copyright infringement in the U.S. District Court for the Southern District of New York on March 13, 2007. The suit seeks a court ruling forcing Google and YouTube to comply with copyright laws and demands $1 billion in damages for 160,000 unauthorized clips of Viacom programming made available on YouTube. Viacom claims the clips have been viewed 1.5 billion times. Summarizing the suit Viacom stated, ?There is no question that YouTube and Google are continuing to take the fruit of our efforts without permission and destroying enormous value in the process. This is value that rightfully belongs to the writers, directors, and talent who create it and companies like Viacom that have invested to make possible this innovation and creativity.? Viacom requested that 100,000 videos be taken down in February, 2007, as detailed in the Digital Millennial Copyright Bill. YouTube complied.

The new order denied Viacom's request for the master source code from YouTube but ordered YouTube to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on YouTube website or through embedding on a third-party website. Also, this ruling gives Viacom access to the ?Logging Database,? which is ?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.?

The ?Logging Database? is described as recording the following: ?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 and used to identify the user?s computer (?IP address?), and the identifier for the video.?

What exactly the ruling means for the future of online privacy is unclear. The Electronic Frontier Foundation (EFF), a privacy advocacy group, criticized the decision as having the potential to expose individual YouTube users? history without good reason. Kurt Opsahl from EFF said: "The court's order grants Viacom's request and erroneously ignores the protections of the federal Video Privacy Protection Act (VPPA), and threatens to expose deeply private information about what videos are watched by YouTube users. The VPPA was passed after a newspaper disclosed Supreme Court nominee Robert Bork's video rental records. As Congress recognized, your selection of videos to watch is deeply personal and deserves the strongest protection."

Privacy groups claim Stanton ignored principles contained in the US Federal Code Title 18, Part I, Chapter 121, § 2710: ?Wrongful disclosure of video tape rental or sale records.? This law defines consumers as ?any renter, purchaser, or subscriber of goods or services from a video tape service provider.? Under this law, ?a video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.? Personally identifiable information includes information capable of identifying a person who has obtained video materials or services from a video tape service provider. Court orders may order disclosure of personally identifiable information but they shall issue only with prior notice to the consumers and when it is shown that there is probable cause to believe that the records or the information sought are relevant to a legitimate law enforcement inquiry. Such orders cannot be issued when prohibited by state law. Additionally, this law states, the video tape service provider may file a motion to quash or modify a court order requesting disclosure of personally identifiable information, when the information or records requested are unreasonably voluminous in nature or cause an unreasonable burden on such provider.

YouTube viewers are video consumers and, according this law, they have the right to be notified first that their records are going to be released. But given the size and scope of YouTube?s video audience, it is improbable that this would happen. Google will not challenge the court?s order.

Google informed its users of their position and privacy policy. This was motivated, in part, by a June 3rd letter sent by a group of privacy advocates, including California-based Privacy Rights Clearinghouse, the World Privacy Forum, Consumer Action, the Electronic Frontier Foundation, Consumer Federation of California, and ACLU of Northern California. This group sent a frank missive to Google CEO Eric Schmidt, claiming the lack of a privacy link on Google's home page was "alarming," and even violated the California Online Privacy Protection Act of 2003. Further, on June 10th, California Assemblyman Joel Anderson (R - La Mesa) joined the critics and sent his own letter.

The California Online Privacy Protection Act of 2003 says: ?An operator of a commercial Web site or online service that collects personally identifiable information through the Internet about individual consumers residing in California who use or visit its commercial Web site or online service shall conspicuously post its privacy policy on its Web site. In addition, most commercial sites do this as a matter of course.?

Full post as published by IBLS Internet Law Blog on July 09, 2008 (boomark / email).