In March 2007, Viacom filed a suit in the US District Court for the Southern District of New York alleging that Google and YouTube “promote and profit from massive copyright infringement of television programs and feature films on an unprecedented scale involving hundreds of thousands of pirated clips”.
Google claims that it is protected against the allegations by the safe harbour provisions in the Digital Millennium Copyright Act (DMCA).
As part of the discovery process in the case, Viacom and The Football Association Premier League Limited, which has also filed suit against the companies, moved jointly to compel Google and YouTube to produce various electronically stored information and documents.
These included: the computer source code that controls the sites’ search functions, as well as source code related to the sites’ recently implemented Video ID programme; copies of all videos that have been removed from the sites for any reason; the logging database information which reveals how often and by whom each video was viewed; user-generated data related to the videos; the schemas, or electronic indexes, for Google’s advertising and video content databases; and copies of all private videos not available for public viewing.
Judge Louis Stanton denied five of the motions and granted three. Those denied included the plaintiffs’ request for the search function source code, which the judge deemed a “vital asset”. He said that its disclosure could “cause catastrophic competitive harm to Google”.
Viacom and The Premier League had argued that the code would help to prove that the defendants “have purposefully designed or modified the tool to facilitate the location of infringing content”.
But the judge said: “The predicate for that proposition is that the ‘tool’ treats infringing material differently from innocent material, and plaintiffs offer no evidence that the search function can discriminate between infringing and non-infringing videos.”
However, the judge granted the plaintiffs’ motions to compel the production of all of the removed videos, a task which will entail roughly “five person-weeks of labor without unexpected glitches, as well as the dedication of expensive computer equipment and network bandwith”, according to the order.
Google and YouTube had suggested that plaintiffs identify specific removed videos in order to streamline the process, but the judge reasoned that the burden of specifying the videos would be about equal to the burden of producing all of them.
The order has also generated concerns about the privacy of Google and YouTube users.
In a statement issued following the judge’s order, Viacom said: “Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.”
The statement also characterized YouTube and Google’s conduct as “illegal and irresponsible” and accused the internet sites of “profiting from copyright infringement, when they could be implementing the safe and legal user generated content experience they promise”.
A trial is not likely to be held until 2009. Document production should be completed this month and discovery and expert depositions finished by December 2008.
