03 July 2008

Judge Orders YouTube Privacy Armageddon

The ongoing Google/YouTube-Viacom litigation has now officially spilled over to users with a court order requiring Google to turn over massive amounts of user data to Viacom. . . . That data includes every YouTube username, the associated IP address and the videos that user has watched on YouTube. Google will also be required to hand over copies of every video removed from Youtube for any reason (DMCA notices or user-initiated deletions). . . .

I can understand why Judge Stanton, who graduated from law school in 1955, may be completely and utterly clueless when it comes to online videos services. But perhaps one of his bright young clerks or interns could have told him that (1) handing over user names and a list of videos they've watched to a highly litigious copyright holder is extremely likely to result in lawsuits against those users that have watched copyrighted content on YouTube, and (2) YouTube's source code is about as valuable as the hard drive it would be delivered on, since the core Flash technology is owned by Adobe and there are countless YouTube clones out there, most of which offer higher quality video.

YouTube's core value is in it's network effect - the library of content along with its massive user base.

From the Washington Post. The Order is here.

The biggest flaw in the opinion's reasoning is the conclusion that privacy interests are not compromised by the mere disclosure of userIDs and IP addresses, since they, standing alone, are not necessarily enough to definitively identify the user in question. While this information is not actually a name, address or social security number, they are significant identifying information that can be linked to people in the real world. UserIDs are names, sometimes aliases, but names nonetheless. And, while IP addresses aren't equivalent to real world street addresses, they do provide location information of detail comparable to a full nine digit zip code. An alias, a nine digit zip code, and a list of when and what someone with the Internet address was posted or watched on the Internet (which may include, for example, home movies) goes a very long way towards identifying someone.

Instead, the reasoning identified in footnote five of the opinion, which is considered and rejected by the court, should apply. This footnote states:

The statute defendants point to, 18 U.S.C. § 2710 (titled “Wrongful disclosure of video tape rental or sale records”), prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain, and in the case they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570, 572-73 (W.D.Wis. 2007) (the “subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission”), the court on First Amendment grounds did not require an internet book retailer to disclose the identities of customers who purchased used books from the grand jury’s target, a used book seller under investigation for tax evasion and wire and mail fraud in connection with his sale of used books through the retailer’s website.

Notably, who views a particular video, or the viewing habits of a particular customer, aren't relevant to the inquiry in the case at hand, which asks "Did Google violate copyright law by operating YouTube?" This case does not ask whether or not particular individual YouTube users violated copyright law is not at issue in the case.

This case is the equivalent of forcing a public library to disclose the names and book borrowing habits of its patrons, in a suit alleging that some of the books in its possession were illegally copied, because the library has a policy of allowing people who disclose their nine digit zip code to use pseudonyms on their library card.

The Electronic Frontier Foundation, one of my brother's favorite advocacy groups and increasingly one of mine as well, understands this, explains the situation.

The Court . . . stated that Google did “not refute that the ‘login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube’ which without more ‘cannot identify specific individuals.’”

As an initial matter, this is factually insufficient. If any single one of the YouTube users in the Logging database picked a Login ID that does identify that user (i.e. if my YouTube login was kurtopsahl), then the Logging database' information about viewing habits is protected by the VPPA, even if others pick anonymous pseudonyms.

Furthermore, even Google’s IP address statement only asserts that “in most cases” the IP address is not identifiable, certainly not in all cases. Putting aside whether a Google Public Policy blog's statement on an unrelated topic can waive the privacy rights of YouTube users, the statement means that at least some YouTube users are identifiable, and must be protected by the VPPA.

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 mere fact that Viacom insisted on this discovery illustrates just how much contempt big media has for the general public.

I sincerely hope that this Order will be reconsidered by the trial judge, or reversed on appeal, even though appeals ordinarily aren't allowe for discovery orders.

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