YouTube vs. Viacom: Google’s IP wins; Users lose

[Metropolitanjury]

The latest battle in Google’s ongoing court battle with Viacom over YouTube copyright infringement is a glass half full or half empty situation. In the half full department, Google scored a legal victory as a judge shot down Viacom requests for the search giant’s search code and other critical intellectual property. In the half empty department, Google is being forced to turn over YouTube user histories to Viacom.

While much of today’s debate about this ruling will focus on user histories, the ruling needs to be viewed with a broader lens.

From a business perspective Google comes out ahead–its intellectual property won’t be floated around a courtroom. It’s fascinating how Viacom was asking for everything from source code to ad and video schemas–in other words most of the IP behind Google’s business. Reading the ruling shows what a fishing expedition–or witch-hunt for users–this lawsuit has become. Even with confidentiality, it’s clear Viacom could have used this suit to glean some competitive edge. On the flip side, users clearly lose, but at least Viacom isn’t sorting through your private videos.

Update: Caroline McCarthy is reporting that the court is forcing Viacom to respect user data. Google has also issued a statement on the matter about privacy rights.

Here’s the scorecard from Tuesday’s ruling by Louis Stanton, a judge in the U.S. District Court Southern District of New York:

Viacom was seeking Google’s search code to see how the company encourages copyright infringement on YouTube.

Specifically:

Plaintiffs move jointly pursuant 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 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”, and cannot be disclosed without risking the loss of the business.

The judge agreed that the search code “is of enormous commercial value” and could cause harm to Google even with a confidentiality agreement. Viacom argued that the only way to check if Google’s claim that its code couldn’t determine between infringement and non-infringement was to check out the code. The judge denied Viacom’s request.

Viacom also wanted Google to produce another trade secret, the source code for its video ID program. Specifically:

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.”

Viacom wanted the code to demonstrate what Google could be doing, but wasn’t to control infringement. The judge told Viacom that they could observe Video ID’s operation and glean the information it wanted. The request was denied.

Viacom wanted Google to turn over all removed videos from YouTube.

Specifically, Viacom argued that “direct access to the removed videos is essential to identify which (if any) infringe their alleged copyrights.” Google said Viacom should have to specify the videos it wants. The judge sided with Viacom. Google has to hand over all of the removed videos, a total in the millions.

Viacom wanted video related data from YouTube’s logging database. That’s a toned down way to say that Viacom wanted login IDs, the time a user watched it, the IP address and the video identifier. Specifically:

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. 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.”

And.

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”. But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.

The judge ruled for Viacom and Google has to produce the user histories.
Viacom wanted the databases that have information about each video available in the YouTube collection–title, keywords, comments and whether it has been flagged as inappropriate among other items.

Specifically, Viacom wanted the info 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.”

Google argued that Viacom’s request was too broad. The judge denied Viacom’s request.

Viacom wanted Google’s advertising and video content schemas–the index that shows how data in a database is organized.

Google obviously argued that the advertising schemas are confidential. Viacom argued that the schema is relevant to show what Google “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.”

On the video database schema, Viacom has a similar argument. Viacom wanted to know whether Google was really trying to control infringement. Google said that schema is too critical to its business.

The judge ruled for Google on both schemas.

Viacom wanted data on all private videos from YouTube users. A private video is one where only a person authorized by a user can view it.
Google argued that Viacom’s request is a privacy violation under the Electronic Communications Privacy Act. Viacom argued that it needed to view these private videos to gauge copyright violations.

The judge ruled for Google.

Final score: While Google has to hand over user histories the outcome of this ruling could have been a lot worse. For instance, Viacom could have sorted through millions of private videos–say a childbirth or 2 year old birthday party video for family–in a quest for some Rugrats copyright violation. Google could have handed over most of its advertising IP to Viacom, which would have likely benefited because it depends on advertising too.

By Ms.Bobby Aanand, Metropolitan Jury.

Ding dong ... the witch is dead!

... or at least she is starting to melt!

Wow ... I would say this is very good news for the entire copyright industry. While potentially inconvenient to YouTube viewers, and understanding the importance of privacy protection in the complex world of the Internet these days, this decision by the judge in the Viacom v. Google/YouTube case in New York may be the best thing that has happened to the copyright industries in this country, and to our overall economy, in practically a decade.

I have been following this infringment case, and others like it, now for several years. I, for one, am sick and tired of the Google's of the world blaming their own customers for all of the infringing activity that occurs day in and day out over the Google sponsored networks. Who do you think gains the most financially from these obvious infringements - Google or the poor smuck in Louisville who does not have a clue what is right or wrong, let alone what is infringing and what is not?

In fact, if it is true that an individual typically adapts his or her production and viewing habits from what they see and are taught by the larger media, entertainment, Fortune 500, and technology companies in this country ("if this weren't legal, certainly mighty Google wouldn't encourage it as they do or run AdSense ads on the infringing sites, and Exxon/Mobile wouldn't be placing ads on the sites that are displaying the "shared" works, either") then who do we really have to blame for this chaos? You guessed it.

It is an unfortunate reality today that many of the copyright defense lawyers, and their publicly financed clients out to make the big bucks regardless of the rules, have made a mockery of the Digital Millennium Copyright Act (the DMCA), which was signed into law in 1998 by President Clinton. Like the music industry has learned in the school of hard knocks (aka "the real world"), it is virtually impossible today to hold the middlemen in these unlawful Internet distribution channels and networks accountable. So, what do the copyright companies have to do to protect their valuable property? Go directly after the often innocent "end users" who are often sucked into this game, more often unknowingly than not. It is shameful.

Perhaps this New York court decision will help to turn those tides.

Google enables widespread copyright infringement activity like no other company on this planet. Google subsidizes entire networks of infringers through it Adwords and AdSense marketing and advertising programs. Google facilitates willful copyright infringement. Google enables widespread copyright infringement. Day in and day out. Google causes enormous damages to legitimate copyright holders every second of every single day. Google has been doing this for years. They earn a substantial portion of their overall revenue and profits by sponsoring illegal activities over the Internet. And their operations outside the U.S. are far more egregious than the infringement activity we see referenced in this Viacom case, which is largely within our borders.

I, for one, have had enough. Baseless, if not ludicrous, excuses and piracy defense strategies, implemented by what used to be some of the finest copyright law firms in this country - "fair use", "safe harbor", "no harm", "unclean hands", "de minimus damage", "copyright misuse", "DMCA safeguards", "willful blindness", "laches", and on and on, can drag these cases on for years - haven't we seen it all?

What do the legal terms all mean in Google's true vernacular? How about this. "We are big. We are powerful. We can do anything we damn well please. Quit complaining, copyright owners, or we'll cut you off from all the online revenues streams, as well". Better yet, "... if you don't conform, we'll simply run some of this stuff from our operations in Brazil , Russia , India , and China (those BRICS have plenty of money), and let them beam the content back here to the states."

Aren't you tired of watching Google hide behind the skirt-tails of their customers. "They were the ones who loaded the illegal videos onto our system, not us." Or , better yet, "how were we to know that Bart Simpson and the Spice Girls weren't already in the 'Public Domain'?"

Is Google alone in this? Unfortunately, the answer is no. Microsoft, AOL, Yahoo, and others are moving as fast as they can to mimic and duplicate Google's cash cow system, whether the law is violated or not. Cash is the king. And copyrights from the creative industries are not the only victims. Haven't you seen lately, similar claims (and penalties) levied against these giant Internet companies for their advertising efforts to support, or even subsidize in many cases, the distribution of harmful pharmaceutical drugs and counterfeits over the Internet, sponsor illegal gambling and pornography web sites, and many others too numerous to mention. Billions and billions and billions of dollars every single month.

"What do you expect us to do, your honor. Try out every single drug our customers illegally deliver just because we provide the advertising revenues for them to survive?"

This kind of unlawful activity not only helps to destroy our economy, it breaks down the moral fiber of our society. What makes you think this young generation that has grown up witnessing these wide scale unlawful activities delivered to them (usually "free of charge") via the Internet, will be able to draw a distinction between the virtual world and the physical world where STEALING is concerned as they get older and have to put food on a table full of their own babies and elderly parents? The jury is still out on that one.

I applaud the nerve, and the intelligence, of the judge up there in New York who presides over this case between Google and Viacom. Maybe your recent ruling will cause all of these Internet parasites to wake up and see the error of their ways before it is too late for all of us.

As a pleasant footnote to copyright holders. Do you think the judge would have allowed the complete user logs of YouTube to be released in this case if the outcome of this case was not leaning in Viacom's direction? I certainly do not. This may, indeed, be one of the most important weeks in the history of protecting the original works of copyright owners in this country ... one of the few absolute rights that was guaranteed to all of us in our Constitution over 200 years ago.

Congratulations New York . Congratulations copyright holders. It must feel good to know you have some judges up that way have your best interests at heart in enforcing our critically important (and "endangered") copyright laws and maintaining the delicate balance between managing and policing unbridled growth (i.e. "growth at ANY cost") over the Internet and maintaining our vital and long standing ethical, moral, and legal business practices going forward, while looking out for your best interests.

... which old witch ... the wicked witch!


George P. Riddick, III
Chairman/CEO
Imageline, Inc.

griddick@imageline2.com