Last week, the judge overseeing Viacom’s $1 billion copyright infringement case against Google-owned YouTube ruled that Google is required to turn over the user histories on every video viewed on YouTube. Rather than speculate on what that ruling means, I decided to ask an attorney to discuss it. Below is my e-mail interview with Jeff Sanders, a partner with Roberts & Ritholz, a New York law firm specializing in media, entertainment and technology.
TVWeek: Is there any chance of Google appealing this ruling?
Jeff Sanders: As a procedural matter, Google has no automatic right to appeal. In the federal courts, in most cases, appeals are allowed only after a final ruling. This is an interim discovery issue, and could only be appealed if the District Court permits Google to do so. I would expect Viacom to oppose any application for leave to appeal, and it is unlikely that an interlocutory appeal would be permitted.
TVWeek: Does Google risk a class-action suit by users if it complies with the court order?
Mr. Sanders: Not in any meaningful way. Google has a legal obligation to comply with the order of a federal district court or face contempt sanctions, so the possibility that compliance with a lawful order of a federal court could trigger class liability to YouTube users is pretty remote. In this case, the disclosure is being compelled under tight confidentiality procedures, so individual users cannot really establish separate injury. If Google has exposure regarding user data, it arises from the manner in which YouTube collects IP addresses and associates them with specific content in the first place; mere compliance with a federal court order requiring confidential disclosure of data that YouTube has already collected and manipulated cannot be the basis of liability.
TVWeek: Do you think the users’ information can be protected to such a degree to ensure privacy?
Mr. Sanders: Can digitally stored user data ever be securely protected? Again, I don’t think that sharing the data with Viacom under court supervision compromises the data collected by YouTube—if anything, users’ privacy is compromised by YouTube’s collection and manipulation of the data in the first place. Suppose that rather than sharing the information under a court-ordered confidentiality agreement, the same information was hacked from Google’s servers by an unauthorized malicious third party. That poses much more of a real threat to individual users than disclosure to Viacom’s counsel under Judge Stanton’s order. .
TVWeek: What privacy concerns does this ruling raise?
Mr. Sanders: The ruling doesn’t raise genuine privacy issues. Google is doing a good job positioning this as an anti-privacy ruling—which is good PR, but factually and legally inaccurate. The ruling does not allow user information to be disclosed in any manner other than that which Google collects itself, and does not permit disclosure to anyone other than Viacom’s counsel. [Electronic Frontier Foundation] has also weighed in, citing this ruling as an erosion of privacy rights. I generally respect EFF’s work, and think that the public advocacy angle here is more of a "slippery slope" argument: If user data can be disclosed in a confidential setting under court supervision, how far is that from the telcos' unlawful secret disclosure of voice and data communications to the Bush White House, without judicial review?
TVWeek: What do you think the long-term impact will be of this ruling?
Mr. Sanders: It will increase the cost and complexity of discovery in DMCA litigation—a boon for litigators but not really a concern for users. However, the ultimate question posed in this case—can content-sharing services like YouTube take advantage of the DMCA’s safe-harbor provisions for ISPs?—is likely to make it to the Supreme Court one way or another. And the result will shape the business models of the entertainment, media and Internet industries for years to come.