The Chicago Tribune’s Jessica Guynn reported last week (click here to read the article) that a Southern District of New York judge ordered Google to produce information about YouTube user’s viewing habits. Viacom sued YouTube and its parent Google, alleging copyright infringement based upon the alleged infringing posting of Viacom’s copyrighted content on YouTube. Guynn reports that privacy advocates are concerned about the ruling. But Guynn also quotes Viacom’s General Counsel Michael Fricklas saying that "unequivocally that this information will not be used" outside of the lawsuit.
Viacom wants records from a YouTube database that records each time a video is watched and pairs that with two kinds of information about people who viewed it: log-in names (for YouTube users that have accounts), and IP addresses (for YouTube users without accounts).
For those concerned about the production, there is nothing to be worried about. Virtually every federal case involving sensitive information is governed by a protective order preventing use or disclosure of the information outside of the litigation. And in virtually all of those cases the parties honor the protective order and the information is not disclosed or used besides in the litigation.
[UPDATE:] Randy Picker at the University of Chicago Faculty Law Blog has an interesting post questioning how the information could be kept or produced by Google differently to avoid disclosing identities along with the viewing information, and whether the information is covered by the Video Privacy Protection Act of 1988 (enacted after Judge Bork’s video rental records were obtained during Senate confirmation hearings):
So Viacom has a legitimate interest in seeing YouTube’s viewing records. But of course viewers have a privacy interest in those records as well. Exactly how many views have I contributed to The Evolution of Dance, the, I gather, most-viewed video on YouTube (currently at 91,619,702 views)? (I have watched only because I teach copyright, not because it is quite funny.)
This isn’t abstract or speculative. Indeed, after the release of some information regarding then-Judge Bork’s viewing habits came out in his Supreme Court confirmation hearings, Congress passed the Video Privacy Protection Act of 1988, codified at 18 USC 2710. (See the background page on this provided by the Electronic Privacy Information Center.)
I am unaware of any decisions assessing whether an online video provider like YouTube is covered by the VPPA, but it is written in sufficiently media-neutral terms that it appears that YouTube would be covered. If so, that triggers a number of obligations. The VPPA requires the destruction of records containing personally identifiable information “as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected.” Personally identifiable information is, unsurprisingly, a defined term and “includes information which identifies a person is having requested or obtain specific video materials or services from a videotape service provider.”