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

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

Summary: 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.

SHARE:
107

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.

viacom.pngFrom 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:

Topics: Google, Social Enterprise

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

107 comments
Log in or register to join the discussion
  • Competition?

    Does Viacom think that a 10 minute pixellated clip of a show or movie is really competition for seeing the entire show/movie on a TV or big screen? This is getting ridiculous. If anything, having these clips on YouTube is free advertisement for them. They should be thankful for YouTube.

    Between this and the RIAA, it really feels like we're living under some kind of socialist dictatorship.
    forrestcupp
    • You have to start somewhere

      I totally agree with the notion (to paraphrase) [i]that a 10 minute pixellated clip of a show or movie is not really competition for seeing the entire show/movie on a TV or big screen[/i].

      But these days we live in, the fear is now that if it is allowed to continue, one day users [i]will[/i] post entire shows on line, and it will be all the harder to stop it at that point in time.
      GuidingLight
      • Tip of the iceberg ...

        The point is that this kind of infringement is a drop in the bucket compared to what Viacom must deal with from the "pirates for profit" on the streets of Beijing. This kind of litigation is a waste of Viacom resources. By taking a "zero-tolerance" stance, Viacom is hurting themselves far more than YouTube customers (who are making no money for their efforts) are hurting them.
        M Wagner
        • Its the Riaa/Mpaa Mentality..

          They think they can still cram legacy business models down new paradigm businesses.

          Instead of making money from the opportunity, Viacom successfully loses both public support and a potential revenue stream in one swoop. Brilliance.

          Like the record companys are finding out, distrobution monopolys are hard to keep these days and running a business around that model is a slowly bleeding endeavor.
          supercharlie
      • One day?!?!?

        [i]"one day users will post entire shows on line"[/i]

        Have you [b]heard[/b] of BitTorrent?
        RationalGuy
        • I was refering to YouTube only

          as Viacom is having the issue with YouTube in the context of this article.

          I will complete that paragraph:

          [i]one day users will post entire shows on line at YouTube[/i]
          GuidingLight
      • Partially true - Simple analogy here

        But to expect a company to control billions of users is impossible. I know it from experiece of moderating a forum with a few hundred users. Even after putting the filters in place and with the help of 6 other people I could not entirely stop abusive messages & spammers. But that does not mean people would start blaming me for encouraging abusive messages while I was trying to fight that problem. People can post what they want, I can only moderate, block users, delete posts, put filters. So one has to be fair to Google since its an impossible task to accomplish. I know they are doing what they can to help content owners but Viacom on the other hand is just interested in making money by suing companies/people, by trying to get hold of trade secrets instead of innovating or doing research, by infringing on users privacy(12 terabytes of entire user logs for a handful of Viacom videos). Viacom is a threat to our privacy and I encourage everyone to Boycott Viacom.
        micks_tricks
        • Boycott Viacom?? Yeah.... right!

          Personally, I rarely watch commercial television. In my view, better than 90% of it is useless drivel.

          But for the vast majority of the population.... I wish you luck getting any of them to change their viewing habits.

          [i]Viacom is a threat to our privacy and I encourage everyone to Boycott Viacom.[/i]
          shawkins
        • I agree with you.

          I was just mentioning why I beleive they are doing this.

          Right or wrong, I feel Viacom believes they are stopping a problem while it is still managable.

          There certainlly could be other reasons as to why Viacom is doing this, but if so, I can not fathom what they might be.
          GuidingLight
      • Pandora's box is already open....

        "But these days we live in, the fear is now that if it is allowed to continue, one day users will post entire shows on line, and it will be all the harder to stop it at that point in time."

        We are long past the point of fear and have moved to the terror and horror stage, because Pandora's box has been opened and it will never be shut. Internet users have already started posting shows in various formats for downloading all over the world, from low quality to high quality. Attempts at deterring it will be futile at best. Cutting these people off will have no effect on these companies bottom line. If anything, these people may come around to these companies and buy their products or the products of those that advertise through their medium. Why chase business away? Accept the new paradigm!

        Unless one supreme sovereign controls all and imposes an all inclusive law and the power to enforce it, you will never stop the principle of liberalism (economic, not political). The flow of internet business and traffic depends on this liberalism for several in this "Brave New World." However, there will not be a ruling body of ten corporations or entities, there will be a multitude that proves to control the flow of information and commerce. That which is determined to be, will be, by those that will make it free.

        The corporations can cry about IP and try to make examples of a few, but it will do absolutely no good. In one sense, the proletariat wins as does the capitalist liberalism that askews the finite absoluteness and takes the road to a free flowing marketplace. The IP of today has to be released in this new paradigm. It is not a producer market anymore, where you can continue to produce the same thing and charge for it each time. It is a performer market; to be paid you have to perform. Once it is released in performance, it belongs to the universe; there is no putting it back in a bottle and re-selling it.

        You cannot have it one way, your way, the only way. Life as we know it is not like it used to be, the people have changed and the laws will have to be too. If not, then the governments will have to change from with in or with out!
        ZD-PIRATE
    • Well, we are in a socialist democracy...

      Welfare
      Medicare
      Labor Unions
      Disaster relief programs
      Public education

      All of them are ways for the government to help out its citizens.
      tikigawd
    • No, it's a Capitalist Dictatorship..

      in the case of the US..not as diferent as you might think, perhaps..?
      SWtester
    • No, it's more like a Capitalist Dictatorship

      Not as much difference as you might think..?
      SWtester
    • Typical American response - label a corporate dictatorship socialist??

      Grow up politically and stop
      sucking up the endless corporate
      ideological propaganda. Dictatorial concentrations of
      power can exist in either a public governmental structuralism or a private corporate structuralism.
      Our mission as democratic
      citizens should we chose to
      accept it is to play monkey in the
      middle and make shore neither
      of these institutions can
      dominate us by hogging the
      power ball. The government
      focuses and enforces the will of
      the citizenry as a whole the
      corporation focuses the will of private groups of shareholders.
      These two forces need to be
      balanced via an dynamically
      evolving social contract. We are
      not at the end of history as re-
      guards this ongoing balancing
      act! Like all authority and power
      it comes with certain responsibilities and constraints
      on both the governance and
      corporate sides of the equation.
      Never mind the old 19th century polemic of right vs left it take
      two wings to fly. The rest is a
      smoke screen for blinding the
      monkeys in the middle and grabbing power at our expense.
      raycote
    • Veoh

      Hmm....

      The thing that strikes me is that Viacom

      http://www.viacom.com/ourbrands/Pages/default.aspx

      is affiliated with Veoh (in the sense that Veoh broadcasts content from, for example, Viacom's MTV Networks - see http://www.nytimes.com/2008/06/23/business/media/23veoh.html?ref=business)

      More on Veoh Networks here:

      http://corporate.disney.go.com/corporate/moreinfo/veoh_networks_release.html

      Veoh is software that highly capable of facilitating copyright infringement - see -

      http://news.cnet.com/A-new-copyright-battlefield-Veoh-Networks/2100-1026_3-6160860.html

      I mean, with the Veoh software, you can very easily download ANY streaming video content with a browser plugin and either save it to your computer or share it on the veoh network.

      Anyone know more about the relationship between Viacom and Veoh?? And how all of this relates to the Viacom vs. YouTube/Google scenario?
      canaryfish
  • Misleading title

    The title implies the uesrs are losing due to Googles win on IP. Since it's more like Google IP win - good for Google and users; Viacom gets YouTube videos - users lose - maybe you should have just left the title at YouTube vs Viacom...
    ridingthewind
  • Google's IP Should Be Protected But Viacom's IP Shouldn't?

    You all certainly aren't afraid to be biased in your coverage eh? Let's get this straight: it's bad if Google's business-critical IP gets out of their control and may be used by others but it's ok if Viacom's business-critical IP (it's content) gets out of its control and used by others (Google's use of Viacom's shows)?

    Where's the sense in that?
    MeepsDeeps
    • profits versus world community

      The sense is that there is a difference between a corporation [Google] that provides a vital service to the internet population and which to date hasn't stopped that other corporation [Viacom] from providing [i]its[/i] service, and a corporation [Viacom] that does provide valuable service to the world population, but offers nothing in terms of self empowerment and which do date seems to be perfectly able to continue its business model.

      You are saying that IP rights should be the only determinant, but there are other factors at play, context matters. I applaud the judge, even though I fear for state monitoring of our viewing habits.
      kouzen
      • Ridiculous and subjective

        So you have determined that Viacom offers nothing to "humanity", but Google does. Thanks for clarifying that for us. You get a Google hat and t-shirt.

        So I guess by your definition an IP holder, other than Google, can only be protected once its ability to continue its business model is failing (in other words, after its too late)

        I like how so many web-activists cant even really hide their disdain for media companies and DRM when it comes to discussing legal and technology matters. There is clearly no objectivity on this issue.

        Viacoms requests were ridiculously over-reaching (thats how these things work), but to suggest that Google is some kind of charitable organization working to help mankind and therefore must be considered sacrosanct and Viacom is just a soulless, greedy corporation is idiotic.

        Google is a dangerous monopoly that has become MORE dangerous because technophiles and web zombies have such irrational love for them
        mlambert8909
        • Demonizing Google

          [i]Google is a dangerous monopoly that has become MORE dangerous because technophiles and web zombies have such irrational love for them [/i]

          Dangerous monopoly? Irrational love? Have you skipped Yahoo!? MSN?

          Technophiles appreciate Google for its clean design and functionality. I would be more concerned about Yahoo and Microsoft long before Google.

          I agree with your basic point of what is good for the goose is good for the gander. And yes, Viacoms requests were ridiculously over-reaching.

          However I think the point that those actually profiting due to pirating (China for example) versus a Rugrats video snippet in a family video, is far more to the heart of the issue and should be where Viacom should focus its efforts.
          KeJorn