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

Updated: 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 (Techmeme) 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 (PDF), 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.

Also see:

• Christopher Dawson: 12 terabytes of YouTube data
• Richard Koman: Judge: Viacom gets 12TB of YouTube user data
• Steve O’Hear: Viacom vs YouTube exposes Google’s data retention policy
• Google: Viacom’s YouTube lawsuit threatens DMCA; The full response