Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

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.

The WSJ Law Blog also has a great post about the order -- click here for the post -- explaining the type of information that Google was ordered to disclose:

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.”

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I recently posted that the Seventh Circuit upheld Judge St. Eve's decision in CLC v. Craigslist. In those decisions, Craigslist was found not liable for allegedly discriminatory housing want ads posted on its site because of the Good Samaritan clause of § 230 of the Communications Decency Act. University of Chicago Prof. Randy Picker authored a post at the University of Chicago Law School Facility Blog arguing that the Good Samaritan clause, which exempts ISPs from any filtering requirements, significantly disadvantages Craigslist's bricks and mortar competitor – newspapers. Newspapers, which are in dire financial straits, are required to filter discriminating adds.

Picker argues that Craigslist (or ISPs more broadly) and newspapers should be treated equally – either both or neither should have to filter. As a newspaper aficionado, this makes a lot of sense to me. The problem is that either extreme is problematic. Filtering, at least tailored filtering to avoid a large percentage of false positives, is impractical for ISPs because of the high volume of content and small work force. On the other hand, not filtering likely harms the Fair Housing Act. But there maybe a viable mid-ground. Both ISPs and newspapers could be exempted from filtering and a take down provision could be created, similar to the DMCA. Someone who finds a discriminatory ad could send a take down notice, causing the ISP or newspaper to remove the ad. The advertiser could then challenge the notice. A take down provision would allow entities like the CLC to protect the ideals of the Fair Housing Act. And it would allow newspapers and ISPs to compete on an even playing field.

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