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.”

Continue Reading Google Ordered to Produce YouTube Information

LimitNone v. Google, Inc., (Cook County Ct. Jun. 24, 2008).
Last week, LimitNone, a Chicago company, sued Google for trade secret misappropriation seek $1B. LimitNone alleged that Google entered a nondisclosure agreement with LimitNone to review LimitNone’s gMove software — software that helps Microsoft Outlook users migrate data to the Google platform. Google allegedly assured LimitNone that it would not offer a competing product, but after receiving LimitNone’s trade secrets and promoting the $19 gMove software, Google began offering a free, competing software package which allegedly used LimitNone’s trade secrets. LimitNone filed a speaking complaint, for example:
With gMove priced at $19 per copy and Google’s prediction that there were potentially 50 million users, Google deprived LimitNone of a $950m opportunity by offering Google’s competitive product for free as a part of its ‘premier’ Google Apps package
This appears to be an interesting and potentially significant case. I will keep my eye on it and update you as opinions and events occur. For more on the filing, check out:
* Chicago Tribune
* Slashdot
* Tech Report
* ZDNet

Continue Reading Chicago Company LimitNone Sues Google

According to Chief Judge Holderman during the annual state of the Northern District speech, the state of the Northern District is “good” — click here for the Northern District’s statement regarding the speech. The Northern District was briefly at full capacity, between Judge Dow’s appointment to the Northern District and Judge Filip’s resignation to join the Department of Justice. Other highlights of the presentation included:
The Northern District remains in the top ten districts in terms of median time to civil case disposition at 6.2 months.
Magistrate Judges Brown and Mahoney were reappointed to additional eight year terms; and
The Northern District’s 2007 civil case load remained nearly constant, falling only .5% from its 2006 level.
The Northern District’s steady civil case load is especially impressive in light of the Seventh Circuit’s reduced case load in 2007. The Chicago Tribune’s Ameet Sachdev reported — click here for the story — that the Seventh Circuit’s Chief Judge Easterbrook, during his state of the Seventh Circuit speech, reported that the Seventh Circuit’s case load dropped 10% for the second year in a row. Sachdev noted that federal appellate court case loads had averaged a 5% drop per year since 2000. And Easterbrook explained the Seventh Circuit’s 10% drop for 2007 as based upon two primary factors:
The Seventh Circuit’s district courts saw an overall 6% drop in their case loads; and
The Seventh Circuit’s preference for bright line rules over totality of the circumstance tests made it easier for entities to settle their disputes, saying:
Rules make it easier for private parties to avoid litigation, or settle their disputes, without asking for appellate evaluation in every case.

Continue Reading State of the Northern District is “Good”

In Sunday’s Chicago Tribune, Josh Noel reported on the town of Cicero’s efforts to identify the creators of two MySpace pages containing false and allegedly defamatory statements about Cicero Town President Larry Dominick and claiming to be authored by him– click here for the story. The incident and Noel’s story raise questions about the problems with the anonymity of the internet that are equally interesting and difficult. Noel talked to me about the difficulties of policing social networking sites for the story. Here are my quotes:
“There’s an element of this we just have to live with,” said Dave Donoghue, an attorney with DLA Piper who specializes in intellectual property litigation. “It’s impossible to have large-scale social networking sites, which people clearly want, without having some risk of this.”
Greater policing of social networking sites would be impractical, Donoghue said, comparing it to air travel.
“To make air travel 100 percent safe, the background checks and checks of personal possessions of each individual getting on an airplane would be so cumbersome, time consuming and expensive, it would make air travel impractical,” he said. “There has to be a balance.”

Continue Reading Identity Theft: The Perils of Social Networking Sites

The Chicago Sun-Times has begun live blogging the R. Kelly trial in Cook County state court at its new blog the Kelly Chronicles. As with the Chicago Tribune’s Rezko trial blog, Rezko Gavel to Gavel, the Kelly Chronicles is not IP-related. But regardless of the legal claims, trial blogs are a great way to get a non-legal perspective on a trial from start to finish. Fortunately for Chicago-area litigators and litigants, the Chicago papers have begun actively live-blogging local trials which should provide a wealth of this kind of information.

Continue Reading Chicago Litigation News: New Chicago Trial Blog

Over the weekend, the Chicago Tribune’s Ameet Sachdev reported that an ongoing copyright dispute may be coming to a head at the corner of Michigan Avenue and Randolph Street in Chicago, click here for the Tribune article. In the 1980s, Israeli artist Yaacov Agam was commissioned to create a sculpture for what would become the Stone Container building at 150 N. Michigan Avenue.* Over time, Chicago weather faded the work and the current owner hired an expert to restore the multi-hued work to its original look. Agam is unhappy with the restoration because he believes the colors were not restored to the exact shades he originally used. The work is now back on display at the corner of Michigan and Randolph, and Agam is headed to Chicago this weekend to view the restored, or as he calls it “reconstructed,” work.
In a previous Tribune article, Agam’s counsel admits that VARA, the Visual Artists Rights Act, did not protect Agam’s position because the work was created before 1990 and because Agam no longer owns his work. But Agam claimed to hold the copyright in the work and argued that the copyright allowed him to prevent the current owner from creating a derivative work, which Agam believed the restored or reconstructed work to be because of the changed colors. The dispute is likely governed by the contract commissioning Agam to make the work. Of course, it is possible, and maybe even likely, that the contract is silent or ambiguous regarding derivative works or that it was an oral contract without proof of what the parties intended. It will be interesting to see how the dispute is resolved and, I am sure, people who work in the area will be glad that the wooden stump that stood in the work’s place has been replaced by some restored version of the work.
* Click here for a picture of the sculpture and further discussion of this dispute at the One-Way Street.
** Click here to read the blog’s post about that article.

Continue Reading Creator Returns to Inspect “Reconstructed” Work of Art

I have missed the first few presenters in the Chicago-Kent & Loyola University Chicago IP Colloquium, but the next presentation is set for tomorrow, Tuesday, April 8, in Room 305 at Kent at 4:10 pm. Professor R. Polk Wagner of the University of Pennsylvania Law School will discuss his article Did Phillips Change Anything? The article poses a question that should interest all patent litigators and I am sure there will be a lively discussion.
The Chicago Tribune ran three law-related, non-IP stories that are worth a read over the weekend:
A profile of Jenner & Block’s new managing partner Susan Levy — click here for the story;
A long story on the disparity in starting legal salaries and the consistency in law school tuition rates — click here for the story; and
An excerpt by Chicago attorney R. Eugene Pincham, who died Thursday, from Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, which goes on sale Monday at — click here for the story. The essay details how Pincham prepared for trial and is a must read for all trial attorneys. Pincham’s excerpt got my attention. I will be getting a copy of the book and will post a review when I am done with it. Here is how the Tribune described Pincham:
a pioneering African-American lawyer and champion of unpopular causes. His colorful oratory, which drew on personal history, made him a legend in Chicago courthouses.

Continue Reading Chicago IP News

The Chicago Tribune has set up a live blog, written by Bob Secter and Jeff Coen, of the government’s criminal case against Tony Rezko. The blog promises daily, “gavel-to-gavel” coverage of the Rezko trial — click here for background on the case from the Tribune. This case does not have an intellectual property angle that I am aware of, but it provides an excellent view of a trial as seen through the eyes of non-lawyers, a very important perspective for litigators. Additionally, Judge St. Eve gets at least her share of IP cases — click here for discussion of Judge St. Eve’s opinions in the Blog’s archives.*
Here is some of the Tribune’s coverage of the voir dire from yesterday, largely performed by the Court:
Another potential juror, No. 475, teaches cooking classes, often on Fridays. St. Eve sounded as if she was ready to work with the cooking teacher to accommodate her schedule. “If we structured the trial so that it would go Mondays through Thursday and not have trial on Fridays, the days you have cooking classes, would that be good for you?” the judge asked.
Some of St. Eve’s questions were more chatty than legal. The cooking teacher, for example, was asked what was on the menu at her next class. The answer: Beef Bourguignon and mashed potatoes.
Another juror was asked where she liked to go snowboarding. Still another was asked about her desire to learn Spanish. “Have you learned any words yet?” the judge asked.
“Just the bad things,” the woman responded.
St. Eve also complimented No. 475 on an answer the prospective juror gave to a presubmitted question about whether people who contribute to a campaign should expect something in return. “A thank-you would be nice,” the woman wrote.
I will keep an eye on the Tribune’s blog and will highlight other especially interesting items from it.
* Judge St. Eve also gets her share of high profile cases. She must be tired of the publicity after having the Conrad Black trial and now the Rezko trial within twelve months of each other.

Continue Reading Live Northern District Trial Blog