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YouTube Users Should Breathe Fire At Stanton

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The general public has received word that US District Court Judge Louis Stanton would have YouTube deliver its video usage logs to Viacom as part of litigation. Should all YouTube users rightly be up in arms? Yes. However, before we get to the reaction, in this article I write as a software developer with experience litigating in the realm. Before I opine about the decision, I want to review some common knowledge and a topline view of the situation.

YouTube is a large repository of videos, with a large user base -- a crowd of people go there all the time. The users do more than watch videos -- they also post them, where they become visible to that same large community of users. In most cases, the posting and watching of videos is innocent. People from all ages and strata of society are welcome to be users, and videos have appeared on every conceivable topic and in every conceivable genre. I believe that most usage of YouTube is normal and healthy.

It can also happen that a user uploads a video that is a bootleg copy of copyrighted material, or that otherwise infringes upon copyrights, trademarks, or other protected, proprietary, or privileged information. Viacom is an entertainment company and produces copyrighted video. I have not studied the complaint, but Viacom has sued YouTube. If YouTube carries material which is infringing on the rights of Viacom, then one would think that the simple removal of the material would be a central and key feature of a remedy.

Apparently, Viacom wants to study the situation, perhaps to measure the problem and to consider what further remedy may be in order. What might "further remedy" mean? In addition to cash from YouTube, further remedy could mean punishment or retribution for those who (a.) upload infringing videos or (b.) watch infringing videos. To go after those who knowingly upload videos that infringe seems understandable. However, to go after those who have watched such videos seems like a blow below the belt.

In the present instance, we are not contemplating that all such videos are involved. Instead, just Viacom videos would rightly be the subject at hand. Judges are usually good at limiting the scope of the question at hand; and further, many requests for discovery (the production of information that documents the situation at hand) begin by being overly broad and sweeping. Judges are usually good at seeing through a "fishing expedition" and at limiting the scope of production that is ultimately required in discovery.

It seems that Viacom attorneys went on a fishing expedition, and that YouTube attorneys, who would have objected, were overruled by US District Court Judge Louis Stanton. Actually, the news tells us that Stanton DID limit the discovery -- because Viacom attorneys had also asked for the source code to the YouTube web site. The decision to protect the source code, I applaud. The decision ordering YouTube to divulge "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" was summarized by a news writer as "the viewing habits of every user who has watched any clip on YouTube" and is obviously, on the face of it, overbroad and overreaching -- laughably so.

Among a large universe of YouTube videos, a limited handful would be Viacom videos. Viacom should be interested in viewership of those videos, not of wholly unrelated videos. Likewise, among a large universe of YouTube users, a limited handful would have watched Viacom videos. Only some, and not all, users would have come across and taken in a Viacom video. "All" cannot be implicated, and Stanton is supporting a dragnet approach that releases TMI -- too much information -- to Viacom.

In fact, if we followed my logic above, Viacom should be most interested in those users who uploaded the infringing videos, not those who watched them. To go after the former, I've called understandable. To go after the latter, I've called a blow below the belt, and let me also characterize it as ludicrous.

For an analogy, lets consider that the Internet is equivalent to the public square of old. A street fair is underway, and one booth is displaying some art or paintings. A crowd gathers at the booth to look at the artwork. Suddenly, a Viacom attorney appears and says "this artwork is bootlegged." In the analogy, it would be ludicrous to tell the assembled crowd of onlookers, “You’re in trouble.” It may be fitting to remove the bootlegged artwork, or at the maximum end of the range, to shut down the booth, with the vendor getting into trouble.

In fact precedent, or the Digital Millenium Copyright Act, says that web site operators are not liable for content that is uploaded by users. Under the existing precedent, YouTube should not be liable for Viacom videos that appear within the accounts of users. Ultimately, users are third parties and not the defendant here. Indeed, for the inappropriate release of their information, users could become the plaintiffs in a class action lawsuit of biblical proportions.

So, at the maximum end of the range, YouTube should not be shut down. They ought to be as safe as kittens. Viacom ought to be handed a list of their videos and the viewer counts (just an aggregate total of views -- not information that reveals who viewed the videos, and certainly not the other viewing behavior of those or other users) and at most, the account information for the infringing uploaders. That's the upper limit of what should conceivably be rendered to Viacom. Judge Stanton is revealing himself to be out of touch or seemingly oblivious to the basic information that I have recounted here.

And, I'm just writing as a third party observer. This column was not sponsored by either side in the lawsuit. I just happen to be one who has written some software and visited some court rooms, and hence may be competent to offer an opinion. (My experience stems from the 1990s and is unrelated to the case at hand. It is also correct to say that I am a YouTube user.) Yes, all YouTube users should rightly be up in arms about the invasion of privacy and the 'TMI' that is being released to Viacom. There is a federal Video Privacy Protection Act, which applies to protect "the rest of us" here, and according to the Electronic Frontier Foundation, Stanton was erroneous to discount the applicability of that law. Hopefully, YouTube will remain tight fisted with its logs and upon revisiting this decision, the order should be found ludicrous and the release of 'TMI' stopped.

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The author was once the 18-year-old candidate for U.S. President ('84) and later the founder of the China Support Network, post-Tiananmen Square.
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