U.S. District Court Orders Google to Turn Over YouTube User Records in Viacom Suit

New York Caselaw: The demands on Google to release user information extend to yet another level. The United States District Court for the Southern District of New York has ordered Google to turn over to Viacom its records of which users watched which videos on YouTube, now owned by Google. The order, issued by Judge Louis Stanton, comes in the midst of Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube.

The suit, initially filed by Viacom back in March 2008, alleges that Google and YouTube engaged in massive intentional copyright infringement by posting nearly 160,000 unauthorized clips of entertainment programming owned by Viacom and by failing to prevent its users from posting infringing materials to the YouTube site. Google has maintained that it is shielded from liability under the safe harbor provision of the Digital Millennium Copyright Act of 1998. The immunity set forth therein lets Internet service providers (ISPs) off the hook for infringing activities of users. But, this immunity only applies if the ISPs adhere to several requirements and promptly remove any allegedly infringing material upon notification of the alleged infringement from the copyright owner.

Although Judge Stanton’s order limits the information that must be produced, it does direct the Google to turn over as evidence a database containing the usernames and IP addresses of YouTube viewers, along with an accounting of what videos they watched and at what time. Viacom asserts that it needs the information to demonstrate video piracy patterns in order to build its infringement case against the defendants.

Viacom, along with other large networks, film production companies and even sports leagues, is undertaking immense efforts to ensure that their copyrighted productions are not being released and made viewable on YouTube. Nonetheless, the order is certainly a cause for concern among YouTube users that the personally identifiable information they provide in registering with the site will fail to remain secure. There is also an argument that order violates the Video Privacy Protection Act, a federal law passed in 1998 to prevent “wrongful disclosure of video tape rental or sale records.” However, that law remains generally untested as it applies to the Internet.

Notably, the order also provides that Google does not have to turn over its computer source code which controls the YouTube.com search function and Google’s Internet search tool Google.com. The judge agreed that such information is Google’s trade secret, stating that “[a] plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.”

This case raises many questions that could turn copyright and Internet law on its head: (1) can an ISP be liable for infringement despite the Digital Millennium Act; (2) can personal records be released; (3) given that the records relate to videos, does that the disclosure of user information violate the Video Privacy Protection Act; and (4) can there be liability for creating software that favors infringing content? It will certainly be interesting to see how this unfolds.

Comments/Questions: ljm@gdnlaw.com

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