Posts Tagged: viacom

Noticed / Thoughts — 3 Comments
7
Jul 08

Ongoing Analysis of YouTube-Viacom

News has moved quickly since Wednesday’s ruling by Judge Louis Stanton in Viacom et. al. vs YouTube et. al., the landmark ruling ordering the transfer of all YouTube user histories. Foremost, Google has indicated it will not appeal the ruling, choosing instead to fight the battle in the court of public opinion. To that extent, Google lawyers have reached out to Viacom, offering to anonymize the transferred logs. Viacom attorneys seem to be open to the option, but have not agreed to anything binding.

Viacom attorneys have stated that they won’t be able to follow the RIAA model and suing individual users. In an article posted today, Saul Hansell of the New York Times disagrees, stating: “Viacom says that it isn’t going to use the information from Google to sue individual YouTube users for copyright infringement, but there is nothing under the law to stop it from doing so.” This wealth of information, tied with a ribbon and presented to Viacom, will present intriguing, appealing options. Why not sue YouTube users, demolishing trust in the net’s eminent video-distribution brand?

What role does Google play in this mess? While not a viable option for a public company, Google could have settled the lawsuit in lieu of turning over our information. Additionally, Google’s practices of storing information for 18 months – far longer than necessary – compounds the snakebite here. If Google regularly expunged or anonymized our records, damage could have been minimized.

As Google rolls over, it is hard not to be angry about the situation. Why does Viacom get a record of every legal video I’ve watched? What right do they have? Wendy Seltzer writes about the dangerous precedent being set: “I worry that this discovery demand is just the first of a wave, as more litigants recognize the data gold mines that online service providers have been gathering: search terms, blog readership and posting habits, video viewing, and browsing might all “lead to the discovery of admissible evidence” — if the privacy barriers are as low as Judge Stanton indicates, won’t others follow Viacom’s lead? A gold mine for litigants becomes a tar pit for online services’ user.”

Furthermore, this class of data – one generated in a seemingly private transaction between one’s self and a server – should be recognized and protected as unique. Not only for the particularly private nature of the information, but the scope of the information that comes with these log transfers. It is one thing to subpoena phone records, it is another thing to get a digital recording of every phone call one has made. This transfer is both content and history; that the information Viacom is receiving is federally protected only adds to the terrible irony.

Noticed — 2 Comments
3
Jul 08

YouTube’s Privacy Catastrophe

In a decision catastrophic to digital privacy rights, a federal judge has ordered that Google turn over the video-consumption histories of all YouTube users. The order, which represents the decision of Judge Louis Stanton in the ongoing YouTube et. al. v. Viacom et. al., stipulates that Google must turn over the following:

  • A record of every video watched on YouTube or embedded in a third-party website via YouTube
  • The viewing histories of all IP’s in YouTube’s database
  • The viewing histories of all users in YouTube’s database

The only videos that are granted protected under Judge Stanton’s decisions are those explicitly private; Google will be compelled to turn over all of the records of every other public video you’ve watched. The EFF states that the order is in violation of the Video Privacy Protection Act, a law enacted following the disclosure of Supreme Court nominee Robert Bork’s video rental records.

That the court failed to understand the privacy implications of such a disclosure is astounding. YouTube’s records capture the viewing habits of a wide swath of the web’s users. Such data should be considered personal and private, such as search data, log data, and telephone records. Such disclosure, public or private, is a clear violation of privacy rights, and sets a dangerous precedent going forth.

In a moment of hubris for the behemoth Google, Judge Stanton cited Google’s own public policy blog, that foolishly argued that IP’s are not personally identifiable information. Indeed, IP’s, usernames and histories are identifiable, certainly in corpora the size of YouTube’s.

I’m certainly not a lawyer, but there are a few procedural questions I’d like answered: What processes or procedures exist for the judge to amend this opinion? Even if the case can’t be made against the transfer of data, can he amend his ruling to allow for anonymizing the data? Additionally, what protections follow the data, post transfer? In the worst case, do the logs become public record? Can Viacom et. al. analyze the logs, using them for business or future legal action?

And what can we, the internet, do to convince the judge of his error? I know that I wave my arms about Google and privacy a lot, but this is not the time to gloat. This is a dangerous precedent, and I hope that we can harness the collective to see if we can put it right.

Other smart people writing about the issue:

Update: Via Siva Vaidhyanathan, this quote from Michael Froomkin:

While it may be the case that some of these videos are trying to share copyright protected materials under the radar, it is undoubtedly the case that many of these videos are (1) truly private and of very limited distribution and (2) the author would be identifiable from the associated information ordered to be disclosed. (The order also is opaque as to what sort of precautions if any Viacom would be required to take to prevent leakage of this data.)

There are some procedural obstacles to getting an immediate interlocutory appeal of this decision, but assuming they can be surmounted I think there’s a strong chance of reversal before the 2nd Circuit.

Update 2: The NYT has quotes from Viacom:

“We are investigating techniques, including anonymization, to enhance the security of information that will be produced,” said Michael D. Fricklas, Viacom’s general counsel.

Mr. Fricklas said Viacom would not have direct access to the data, and that its use would be strictly limited by the court order. Viacom would not, for example, chase down users who had illegally posted clips from “The Colbert Report.”

“The information that is produced by Google is going to be limited to outside advisers who can use it solely for the purpose of enforcing our rights against YouTube and Google,” Mr. Fricklas said.