Judge makes Youtube(Google) show Viacom viewing habits of users

[progressiveman1]

Viacom is sick of Youtube users posting and viewing material that is there without permission from the copyright owner, namely Viacom. So a judge is allowing Viacom to see the logs of the viewing history of all the users on Youtube to establish a case against Google for copyright infringement. They will most likely be anonymous, as this is to build a case against Google, not individuals. However, a bunch of Youtube users and others are complaining that their right to privacy is being violated, and that Viacom and the judge are pricks.

Viacom is not doing something bad here though. They constantly have their property rights violated by these users and they want it to stop. That's their choice and there's nothing wrong with it. It's disturbing seeing so many people strongly against this action of Viacom.

Two questions:

1. Do you disagree with anything I said here?

2. Is this a violation of privacy of the Youtube users?

2. Will Viacom be able to win a lawsuit against Google for copyright infringement? Google says Youtube quickly takes down copyright infringed material and has advanced software to detect this kind of material. As far as I know, that is the current law and I see no negligence from Youtube either way.

[DragonMaci]

Viacom is not doing something bad here though.

Actually they are. They are blaming Google for the actions of some of their users; users that have violated the terms of use for YouTube membership. That is bad. Also, what about the innocent users such as myself? Many of them do not consent to having their activities being passed on.

1. Do you disagree with anything I said here?

I agree that they are right to stop their property rights being breached, but I disagree that they are being justly. it is not just to blame Google for the actions of users that breached their terms of use.

2. Is this a violation of privacy of the YouTube users?

The innocent, yes; the guilty, no.

Will Viacom be able to win a lawsuit against Google for copyright infringement?

I don't know but I hope not since Google is not to blame for the actions of people that breach their terms of use. Those users that break the contract are responsible, but for two crimes: copyright infringement and breach of contract. This means that Viacom should in fact be targeting these people and in fact Google also has a case against those people.

[eriatarka]

I don't know but I hope not since Google is not to blame for the actions of people that breach their terms of use. Those users that break the contract are responsible, but for two crimes: copyright infringement and breach of contract. This means that Viacom should in fact be targeting these people and in fact Google also has a case against those people.

I dont think things like Terms of Use/EULAs/etc have any legal weight at all, althuogh i could be wrong.

Edited July 8, 2008 by eriatarka

[DragonMaci]

I dont think things like Terms of Use/EULAs/etc have any legal weight at all, althuogh i could be wrong.

They are a contract and if breached then contract laws could cover them. If they didn't no company would bother creating Terms of Use and EULAs. And if you look at them they are written in legalese just like most contracts. So I'd think they are legally binding. They certainly should be since they are a contract and proof of agreement is easy to supply.

[eriatarka]

They are a contract and if breached then contract laws could cover them.

However, they may not be contracts. Certain factors need to be in place before an agreement is legally considered to be a contract, and its not obvous that they are there when it comes to EULA/ToU agreements

http://en.wikipedia.org/wiki/Consideration

I'm not sure how often EULAs get upheld in courts, but I do know its a fairly controversial area. In this particular case, I think the "Consideration cant be the promise to perform an already existing legal duty" thing would be relevant, although im not a lawyer.

Edited July 8, 2008 by eriatarka

[DragonMaci]

However, they may not be contracts. Certain factors need to be in place before an agreement is legally considered to be a contract, and its not obvous that they are there when it comes to EULA/ToU agreements

They are contracts regardless of whether the law recognizes them as such. And what is the point in getting people to agree to them if they are not covered by contract laws? Seems pointless and stupid.

[KevinDW78]

In the U.S. EULAs ARE legally binding crontacts. I am a partner and director in a web software company and we paid a crapload of money to have the highest paid lawyer in Utah draft the Eula for my company.

[DavidOdden]

It is a plain fact that Google has this information about who the rights-violators are (up to a point, viz the IP address). The right thing for Google to do is turn that data over to the aggrieved party, unless there is a clear legal requirement that they not do so except by court order. Since they have not done so, Google clearly deserved blame for their complicity in this large-scale crime. They engage in a clear and repeated pattern of rights violation with respect to copyright violation (see in particular their criminal pattern of book-theft and posting), and cannot be held blameless in any sense. Of course the end-users should also be legally pursued, but this large-scale criminal enterprise would only be possible with the knowing complicity of Google (and those like it) who exploit features of the law which make online property rights a joke.

There is no generic "right to privacy": what exist is property rights. When a person innocently associates with rights violators, they run the risk of being harmed by their decision to associate with those people. It would be appropriate for the court order to restrict what Viacom can do with the data, i.e. only let it be used to identify and prosecute rights violators. That is what it means for the government to have a monopoly on the use of force to protect rights.

[themadkat]

In the U.S. EULAs ARE legally binding crontacts. I am a partner and director in a web software company and we paid a crapload of money to have the highest paid lawyer in Utah draft the Eula for my company.

Strange...one of my good friends in the computer industry said EULAs are basically unenforceable. However, since this discussion took place a while ago I do not remember his exact rationale. My friend is a programmer so he is the one creating the content that he does not believe is protected, I suppose. Again I'm not sure since the discussion is fuzzy but I believed his disagreement was not EULAs as a concept but the particular formulation of EULAs as they are now. One problem I see personally is that the way EULAs are currently formulated they are just about impossible for the average end user to understand. I know that I am very much to the sharp end of the spectrum and I still have difficulty figuring out what the hell EULAs are trying to say. Most of the time I don't even read them. I make the (hopefully safe) assumption that if I am using the software or whatever within the normal scope of what the developer intended I am extremely unlikely to violate the EULA.

[themadkat]

I don't know but I hope not since Google is not to blame for the actions of people that breach their terms of use. Those users that break the contract are responsible, but for two crimes: copyright infringement and breach of contract. This means that Viacom should in fact be targeting these people and in fact Google also has a case against those people.

But if Viacom targeted the end-users instead of Google they wouldn't be able to recover huge damages as well as hamstringing one of their competitors in the digital content market. You've gotta understand, Viacom doesn't really give a damn about property rights one way or another, as far as I'm concerned. They are out to get the biggest pound of flesh they can, and the property rights argument is just the vehicle through which they are trying to achieve this aim. If they could do it another way, they would.

[DavidOdden]

But if Viacom targeted the end-users instead of Google they wouldn't be able to recover huge damages as well as hamstringing one of their competitors in the digital content market. You've gotta understand, Viacom doesn't really give a damn about property rights one way or another, as far as I'm concerned. They are out to get the biggest pound of flesh they can, and the property rights argument is just the vehicle through which they are trying to achieve this aim. If they could do it another way, they would.

That is a pretty evil statement. Do you have any evidence to support your assertion regarding Viacom? Are you aware that the only way for them to get Youtube to stop is to show that Youtube is harming them? The fundamental reason why I can't sue Youtube for their harm to the concept of property rights is that I can't show personal damage.

[Unknown Idealist]

Google's defense may be that reproduction of copyrighted media on YouTube is protected "fair use." ( http://blogs.zdnet.com/micro-markets/?p=451 ) But that raises another question: if intellectual property law confers on the creator of a work the right to reproduce or to authorize others to reproduce the work, why should such a right be limited by the fair use doctrine? If it is legitimate for people to "sample" a few minutes of The Sopranos on YouTube, why wouldn't it be equally legitimate for a customer to "sample" a slice of cheese, some grapes, a cookie, and a bottled water at Safeway? And to make matters worse, the distinction between infringement and fair use appears to be quite arbitrary. Even the U.S. Copyright Office admits, "The distinction between 'fair use' and infringement may be unclear and not easily defined." http://www.copyright.gov/fls/fl102.html

[JMeganSnow]

Fair Use is a poorly-structured attempt to recognize a fact: that copyright-holders are not financially harmed by people quoting portions of their works . . . they may actually be helped because this works beautifully as free advertising. Imagine living in a world where you were not free to review movies or books on, say, your blog, because it was illegal to reproduce ANY portion of the movie or book in ANY way without the EXPLICIT permission of the copyright-holder. Movies and reviews pack punch when they point to specific evidence from the movie or book or whatever . . .which involves quotations and so forth.

I'll grant that the way copyrights are *currently* enforced is *broken* and that the law philosophy people need to sit down and hash it out. That's usually done through a succession of lawsuits that results in an approximation since there is no principled philosophy of law in this country.

In general, the big media companies who tend to get pissy when people, say, archive famous comedy skits on YouTube don't wind up doing themselves any service . . . but freedom includes the freedom to be a bloody moron, so we have to defend their right to keep their property locked in a box if they so wish. Doesn't mean I want to cheer them on for being an ass, but that's how it works out sometimes.

[Steve D'Ippolito]

Another question that crops up is whether it is legitimate to (say) make a copy of a legally purchased CD for one's own use. For example, ripping a CD and putting it in your iPod. Apparently under current case law it is not legal, but should it be?

(Obviously it's wrong to make that copy and give it to someone else; it's even worse to sell it to someone else.)

[DavidOdden]

Apparently under current case law it is not legal, but should it be?

One problem is that the rights-holders have generally given away the keys to the car. The RIAA has said that ripping off a CD that you bought to put on your Ipod is okay. RIAA and the various specific companies are not fungible, but to the extent that RIAA does speak for its membership and the member companies have not disavowed the permission, it is fair to conclude that you have permission to copy for personal use. I think that kind of blanket collectivist "permission" is abhorrent, and that it ought to be explicitly stated "You have permission to copy this to your Ipod for personal use", if that is what you (as the rightsholder) want.

[TheEgoist]

From what I understand, Viacom wants the information of people who even viewed their copyrighted material. This presents a problem, if true, because you don't have to sign the Terms of Service to view most youtube videos.

[Unknown Idealist]

JmeganSnow wrote:

Fair Use is a poorly-structured attempt to recognize a fact: that copyright-holders are not financially harmed by people quoting portions of their works . . . they may actually be helped because this works beautifully as free advertising. Imagine living in a world where you were not free to review movies or books on, say, your blog, because it was illegal to reproduce ANY portion of the movie or book in ANY way without the EXPLICIT permission of the copyright-holder. Movies and reviews pack punch when they point to specific evidence from the movie or book or whatever . . .which involves quotations and so forth.

But why should an owner's control over his property be limited to protection from financial loss? For example, I may not be able to show any financial loss from hunters crossing my land to kill deer. In fact, they may end up dining at my café and purchasing souvenirs in my shop. But I would still retain the moral right to exclude them from my woods if I chose to. Similarly, singer-songwriter Tom Waits has the moral right (and currently also the legal right) to refuse the use of his material in commercials, even though permitting advertisers to include his work would earn him more royalties and introduce millions of potential buyers to his songs.

Furthermore, I do not see how the *needs* of book and movie reviewers constitute a claim on the property of others. It is true that reviews are so much more interesting when they include quotes or clips (irrespective of the copyright-holder’s wishes). It is also true that tabloid magazines can sell more copies if their photographers can trespass into movie stars’ backyards or hotel suites.

In general, the big media companies who tend to get pissy when people, say, archive famous comedy skits on YouTube don't wind up doing themselves any service . . . but freedom includes the freedom to be a bloody moron, so we have to defend their right to keep their property locked in a box if they so wish. Doesn't mean I want to cheer them on for being an ass, but that's how it works out sometimes.

Yes, that’s what I’m defending here: the freedom to be a bloody moron.

[Benpercent]

From what I understand, Viacom wants the information of people who even viewed their copyrighted material. This presents a problem, if true, because you don't have to sign the Terms of Service to view most youtube videos.

Another problem is what if those people are innocent and have merely watched a video without knowing it was copyrighted or not posted with permission (or by the owner)? In fact, what if the watcher didn't even watch the video, but clicked the link and let it load long enough for his information to be logged?

[Qwertz]

In a civil lawsuit, in Federal court, the Federal Rules of Civil Procedure grant very broad discovery rights. Other countries often criticize American discovery for being so broad. Anything and everything relevant or potentially likely to lead to relevant information can be had using the Federal discovery procedures. So when Viacom sues Google, arguing that Google a) knew about infringement c) of Viacom's copyrights d) on Google's network and e) could have done more to stop it (the elements of the claim Viacom is making), then the data on what videos users are viewing are relevant to the claim and therefore discoverable as of right. The only reason this went to a judge was because Google, under the electronic discovery provisions, asserted that turning over the data would be unduly burdensome (in this case, both as a practical matter and that discovery of the info would cause undue prejudice to Google's customers). The argument failed to meet the burden established under the rule, so Google was denied a protective order preventing discovery, but did get a protective order limiting the use of the material. Viacom can only use the data in this case to support its current claims. Viacom can't use the data in any subsequent lawsuits against the actual viewers. Or in any other suits.

One of the other fun things about American discovery is that discovered materials do not become part of the record unless they are filed with the court, and a Federal Rule states that discovery shall not be filed with the court unless it is necessary to support a motion. Therefore, as a matter of course, the data would not normally be made public. The judge further emphasized this and ordered that the discovered materials never enter the record in such a way as to become public record.

There really isn't anything abnormal in the judge's order. The real question here is: should a claim lie against a host for the wrongful acts of his guests, when the host knew the wrongful acts were being committed and "could have done more" to prevent them? My issue with that is the "could have done more" part. Not a very clear law, is it?

~Q

[TheEgoist]

If a person walks into Blockbuster and starts selling bootlegs of movies for purchase, whose fault is it if the store manager first tells him to stop, and finally removes him from the property?

[DragonMaci]

It is a plain fact that Google has this information about who the rights-violators are (up to a point, viz the IP address). The right thing for Google to do is turn that data over to the aggrieved party

Only the data of the guilty ones, not the innocent ones.

Since they have not done so, Google clearly deserved blame for their complicity in this large-scale crime.

Yes, but not blame for copyright infringement. They didn't infringe copyright; the users that breached the Terms of Use did.

There is no generic "right to privacy": what exist is property rights.

Are you saying that if an innocent person doesn't want Viacom to know what they do it is okay for their activities to be passed over anyway? If so, I disagree; the innocent should be paid to pay for the actions of the guilty. That is wrong.

When a person innocently associates with rights violators, they run the risk of being harmed by their decision to associate with those people. It would be appropriate for the court order to restrict what Viacom can do with the data, i.e. only let it be used to identify and prosecute rights violators. That is what it means for the government to have a monopoly on the use of force to protect rights.

The government should also restrict it to Viacom only being handed the data of the guilty not the innocent.

Strange...one of my good friends in the computer industry said EULAs are basically unenforceable.

Then it would be stupid and pointless to bother if that is true.

But if Viacom targeted the end-users instead of Google they wouldn't be able to recover huge damages as well as hamstringing one of their competitors in the digital content market.

That doesn't matters. It is wrong to charge Google for the actions of those that break their Terms of Use. To charge Google is as bad as what the pirates are doing. They are asking the courts to steal some of Google's property as "damages" for the actions of some of their users who are using YouTube for something other than it was intended and breaching the Terms of Use.

Similarly, singer-songwriter Tom Waits has the moral right (and currently also the legal right) to refuse the use of his material in commercials, even though permitting advertisers to include his work would earn him more royalties and introduce millions of potential buyers to his songs.

You misunderstand. She was arguing for usage in reviews and the like, not ads. As she said reviews are utterly ineffective if they don't use a quote, or mention some of the content.

Furthermore, I do not see how the *needs* of book and movie reviewers constitute a claim on the property of others.

You misunderstand again. She didn't say there need done such. She said it is not a breach of copyright to include a small extract in a review or anything else similar. For example, it would not be a breach of copyright for the website terrygoodkind.net to quote the Wizard's Rules from The Sword of Truthseries and to mention an example of the rules being breached in the books. They do that and it is not a breach of copyright. Nor would it be a breach of copyright for a review to quote the Wizard's Rule from the SOT book being reviewed.

[DavidOdden]

My issue with that is the "could have done more" part. Not a very clear law, is it?

Which law were you thinking of as the exemplar of "clear"? Anyhow, a huge part of the problem as I see it is the lack of a clear understanding of "or should have known", which means that "or should have known" becomes a nullity as far as holding Youtube responsible is concerned. There are no doubt grey areas; but it is not that hard to distinguish between professionally produced episodes of Penn & Teller versus idiot home videos. A person wishing to upload a TV show has (or should have) the positive burden to establish their property right to the work, but I don't see any evidence that they make any attempt at all to establish whether the upload was by the rights-owner. They do not seem to be bothered by the "burden" of removing pornographic vids or restricting racy ones.

[KevinDW78]

Strange...one of my good friends in the computer industry said EULAs are basically unenforceable.

EULAs have been held up by the courts as legal, enforcable contracts. I don't have the specifics but I know it's out there.

[DavidOdden]

The government should also restrict it to Viacom only being handed the data of the guilty not the innocent.

This is a naive view of law and the function of government. The protection of individual rights cannot depend on suspects voluntarily admitting that they are thieves, which is why courts rightly have subpoena power. Guilt is determined in a court of law based on comparing the facts and the law; if the court has no right to compel production or appearance in court to determine guilt or innocence, rights protection reduces to persuading violators that they should give themselves up.

[KevinDW78]

Another question that crops up is whether it is legitimate to (say) make a copy of a legally purchased CD for one's own use. For example, ripping a CD and putting it in your iPod. Apparently under current case law it is not legal, but should it be?

The legality of this was resolved by the courts way back in the 80s when VCRs came around. The big-shot movies companies argued that it was copyright violation to record movies and tv shows with VCRs. The courts basically said that everyone is entitled to one digital copy of a CD/audio cassette/DVD/etc. In essence, it has been upheld as legal to buy a CD and rip it for your own personal use on your computer or ipod.