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

Current Events
21

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 Truth_series 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.

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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.

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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.

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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.

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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.

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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.

For example ProCD v. Zeidenberg.

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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.

Methinks you missed the tone of my post…I’ll give you a big freakin’ hint. I don’t like Viacom.

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Whether you like Viacom or not isn’t a fact we need to be arguing. I don’t like Starbucks. I don’t support people stealing their coffee, though.

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This is a naive view of law and the function of government.

That is incorrect since you are working on false interpretations of what I was saying, as I will illustrate.

The protection of individual rights cannot depend on suspects voluntarily admitting that they are thieves, which is why courts rightly have subpoena power.

This is false interpretation no. 1: thinking I suggested it can do so. I never suggested it can do so. I said that the courts should only require Google to hand over the tracking details of the guilty not the innocent.

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.

False interpretation no. 2: thinking I suggested otherwise. I never suggested otherwise. I was in fact saying something that implicately relies on that happening and being necessary. See false imterpretation no. 1 for what I was saying.

Methinks you missed the tone of my post…I’ll give you a big freakin’ hint. I don’t like Viacom.

I did realise that. I simply addressed a point in your post rather than the tone. But really it doesn’t matter whether you like them or not, my point still stands and you have yet to address it. If you don’t want to, that is fine by me, but I don’t want to discuss opinions of Viacom. I am here to discuss the case.

Whether you like Viacom or not isn’t a fact we need to be arguing. I don’t like Starbucks. I don’t support people stealing their coffee, though.

Well, said. The debate is about the case, not opinions of Viacom, Google, or YouTube.

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I said that the courts should only require Google to hand over the tracking details of the guilty not the innocent.

I just explained to you why that is meaningless and metaphysically impossible. What part of my explanation did you not grasp?

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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.

But why must the author’s total ownership of his property (i.e. the right to control all reproduction) be compromised by the *need* of someone else to make his reviews more effective? Again, I don’t see any moral basis for such a claim.

You misunderstand again. She didn’t say there need done such.

Huh?

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 Truth_series 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.

I made it clear that I was not discussing existing copyright law but the moral basis for any copyright law. My understanding of the ethics of property is that an object (including an intellectual work) rightfully belongs to its creator, who is not required to share it with his fellow humans even if they are in dire “need” of it. If Ayn Rand writes The Fountainhead, it is hers and hers alone to dispose of. Accordingly, when and where it is reproduced must be entirely of her choosing. If someone gets to excerpt 100 words of it without Rand’s permission, then we cannot say rights to The Fountainhead are exclusively Ayn Rand’s.

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I just explained to you why that is meaningless and metaphysically impossible. What part of my explanation did you not grasp?

The part where it has any connection at all to what I said. As I said before, your post relies of two misinterpretations of what I said.

Besides, it is NOT meaningless to separate the guilty and innocent. If it was then the courts would be pointless because there would be no meaning to them separating the guilty from the innocent.

Also, it is NOT impossible to separate the guilty form the innocent. Again the courts would be pointless if that was so, this time because they would be unable to separate the guilty from the innocent. Also, Viacom is going to have to do that if they want to make the process as expedient as possible, which they should want to and I am sure they will want to.

33

But why must the author’s total ownership of his property (i.e. the right to control all reproduction) be compromised by the *need* of someone else to make his reviews more effective? Again, I don’t see any moral basis for such a claim.

Now you are misinterpreting me. I never made such a claim, never claimed there was such a need. I said it doesn’t compromise his rights if it is something like the example I gave.

Huh?

Sorry I mistyped. I meant to type: “You misunderstand again. She didn’t say there is need to do such.”

I made it clear that I was not discussing existing copyright law but the moral basis for any copyright law.

I was doing exactly the same. Terry Goodkind’s right are not being breached in the example I gave even though it is not the official Teryy Goodkind site.

My understanding of the ethics of property is that an object (including an intellectual work) rightfully belongs to its creator, who is not required to share it with his fellow humans even if they are in dire “need” of it.

There are two points that need be raised in reply to this. 1. Me and Jenni are not talking about need. Need has nothing to do with our points. 2. They are sharing it when they publish it/record it/etc. That is a part of the point. You don’t record an album or publish a book for only you to read/listen to; you do it so others can read/listen to it.

If Ayn Rand writes The Fountainhead, it is hers and hers alone to dispose of.

That site, reveiwers, and the like are not “disposing of” the works; they are providing a form of free advertisement for the artist. They might even be saying it is good and why. In the case of that Terry Goodkind site they are trying to help spread his philosophical messages. Terry Goodkind says that is his main reason for writing - to spread philosophical messages through fiction. Whether it be advertising, helping spread the author’s messages, etc, as long it is only a small extract it is not a breach of copyright - and I mean that in the moral sense not the legal sense. And this in no way detracts from the artist’s rights.

34

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.

Because intellectual property is fundamentally different from, say, land property. It is an established fact, for instance, that it constitutes a violation of rights for copyrights and patents to last forever, but you can sure as hell own title to land or other physical property *forever*.

I’m not claiming that reviewers “need” this or that, it was simply an example of one of the ways in which intellectual property differs from physical property. Financial harm is, in my understanding, the basic way of determining whether someone’s intellectual property right has been infringed. It’s easier with physical property because if someone wanders onto your property, you can SEE them standing there in your backyard.

It makes practical sense to me to have a cultural norm resembling a Fair Use law, but it probably shouldn’t have to be a law. Much better for the easy-going producers to make it known that they don’t mind you, say, parodying their movies or making music video clips or whatever. Then social pressure will do the job of getting the jackasses to do something similar, because every blogger and his mother will ridicule them for their idiot stand.

35

Whether you like Viacom or not isn’t a fact we need to be arguing. I don’t like Starbucks. I don’t support people stealing their coffee, though.

We weren’t arguing the relevance of me not liking Viacom. The only reason I mention it is because when they get in a scrape I have a sort of feeling of “chickens coming home to roost”. We could get into this in detail but I won’t. The point that I was making is that Kane is misinterpreting (he still is a few posts down) the meaning of my words. He did not look at context and tone and acted as if I were saying something factually when I was actually using dry sarcasm.

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We weren’t arguing the relevance of me not liking Viacom. The only reason I mention it is because when they get in a scrape I have a sort of feeling of “chickens coming home to roost”. We could get into this in detail but I won’t. The point that I was making is that Kane is misinterpreting (he still is a few posts down) the meaning of my words. He did not look at context and tone and acted as if I were saying something factually when I was actually using dry sarcasm.

Dry sarcasm often doesn’t come across in text.

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Kane, please do me a favor and don’t attempt to misinterpret me any more in the future. I can make a big enough mess when I’m the only one trying to explain what I meant.

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Kane, please do me a favor and don’t attempt to misinterpret me any more in the future. I can make a big enough mess when I’m the only one trying to explain what I meant.

Please don’t make stupid comments like that. It isn’t like I was trying to misinterpret you. If I did so it was obviously an accident. Now, I assume you didn’t really mean I done it on purpose, in which case your wording was asanine. I will not take back anything I said though since defending you was an aside and the main point was to point out the errors in his posts. My main points, ie, the ones about his errors, stand.

39

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

Viacom’s argument is that Google could have looked at all this data and concluded that more/most viewers are using YouTube! to view copyrighted material, as opposed to the user-produced content Google asserts is YouTube!'s primary use. In order to do that, they need records of all views, not just infringing views. Viacom isn’t using the discovered data to prosecute specific acts of copyright infringement.

Which law were you thinking of as the exemplar of “clear”?

I was thinking that the “could have done more to stop infringement” standard was vague. I mean, Google could always have done more to stop infringement - they could have shut down YouTube! altogether. I think it would be hard, under the law, for Google to know ahead of time what constitutes “enough.”

But of course you are right that the “should have known” standard is, in this case, also vague. (In other legal contexts, constructive knowledge is less vague: e.g., in contracts, parties are presumed to know the terms of the written agreement they signed, whether or not they actually knew.) In this case, Viacom is trying to prove Google had constructive knowledge of infringement based on the records sought in the discovery request at issue - that more users use the site for infringing purposes than non-infringing ones, and Google should have discovered this by looking at the data, and done something about it. But as Google argued, this is terabytes and terabytes of data (not even including the videos themselves), which Viacom’s attorneys are going to spend a giant pile of money analyzing and processing. “Should have known” becomes “should have spent a giant pile of money to find out.” Even in the porn context, Google relies on user compliance with the TOS and user reporting to weed out the rest. They don’t have scores of people at YouTube! HQ watching every single video that gets posted. That’s the burden Google will argue as a defense.

~Q

40

Viacom’s argument is that Google could have looked at all this data and concluded that more/most viewers are using YouTube! to view copyrighted material, as opposed to the user-produced content Google asserts is YouTube!'s primary use.

My arguments is that the court should require Google to do what Viacom argues they could of done and then hand over just the records of the guilty rather requiring Google hand over all records.

Actually, the court shouldn’t require Google to hand over anything in this case since Google are not to blame for the actions of their users.