Thursday, July 03, 2008

YouTube, Viacom and IP Law

In the Southern District of New York, a federal judge ordered Google lost a discovery battle against Viacom. The two corporations have been locked in a battle over YouTube and whether or not the site is infringing on the rights of copyright holders, specifically Viacom.

Apparently in response to a discovery request by Viacom, Google refused to turn over certain information. The discovery request asked for, among other things, the search code data (used by Google to try and find materials which copyright owners claim is being misused/illegally posted) and logging data (i.e. who watches what, when, and how many times).

Despite the fact that there is black letter law which prohibits the court from ordering one party to share data as to who watches what (in the context of what is still called "video tape rental and sale records" 18 USC 2710) and when with another party (unless its the government of course), Judge Stanton did exactly that. As the EFF blog noted,

Google correctly argued that “the data should not be disclosed because of the users’ privacy concerns,” citing the VPPA, 18 U.S.C. § 2710. However, the Court dismissed this argument with no analysis, stating “defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.”...

In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about 'an IP address without additional information,' the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.
The Court's erroneous ruling is a set-back to privacy rights, and will allow Viacom to see what you are watching on YouTube. We urge Viacom to back off this overbroad request and Google to take all steps necessary to challenge this order and protect the rights of its users.
The rest of the article can be found here.

However, in the court's order, the judge protect Google's "trade secrets" (i.e. its search and advertising code). Nice to see a judge who values privacy rights hard at work.

But what is more disturbing to me is the whole premise of this case. After reading the complaint, it seems that what Viacom is really complaining about is not that violations of their copyright occur. Its that Google is not doing enough proactively to prevent the copyright.

Now, admittedly, I am an IP idiot. I think that the way we have skewed IP laws in this country and many others, is threatening to quash innovation and the exchange of ideas. Do I think that artists and creators should benefit from their works? Yes. But why should their heirs continue to benefit from the work? Why should we continue to extend the protections of copyrights for individuals to the life of the author plus 70 years or, for corporations, to 95 to 120 years (based on when the work was published or created). Why do we allow drug companies to maintain monopolies on drugs for as long as we do, even though they did not have to pay for the basic research which was the basis for the drug in the first place?

So back to this case. As I mentioned, Viacom is complaining that it is too hard in the modern era to keep up will all those infringers out there. They are saying that since YouTube allows them to post on their site, it is YouTube's responsibility to do the copyright enforcement, not theirs. To me this seems ludicrous.

Part of the idea of copyrights and trademarks and patents, is that it gives the holder a right to enforce their rights. It does not mean that someone else, not affiliated with the copyright/trademark/patent holder has to go through and make sure the holder's rights are being enforced. For that reason, there is a safe-harbor in the DCMA.

It seems to me that Viacom is trying to get the rest of the world to conform with idea of paradise: IP right holders have to do nothing while everyone else scurries around making sure that material being used in whatever format is not violating some IP right's holder's rights.

Yes, there probably is a more elegant way to express that. But I can't come up with it right now. Should Viacom win this case, the potential effect on everyone who uses the internet is more than a little scary.

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