Recently, a federal court judge, for the Southern District of New York, ruled that YouTube, and its venture partner, Google, Inc., must turn over gigabytes of data, regarding the viewing habits of YouTube users, to entertainment conglomerant, Viacom, Inc. In a deal brokered between both Viacom and YouTube, the parties stipulate that YouTube will be allowed to strip out personal information/data from the records that could identify a specific person with anonymized identifiers (e.g. "chipdaly" will now be "user4321"). Many people wonder why Viacom didn’t just think up this idea earlier, and possibly, save itself from "image" issues as a result of the court decision.
The fact is one of the key legal issues for the Internet early on dealt with corporate liability for carrying information that damaged a third party. Companies and individuals who were the subject of defamatory postings, or postings that violated IP or privacy rights, attempted to hold corporate entities (like ISPs) liable for injury suffered. These entities argued that corporations should have a duty to prevent these publications, either at inception or after receiving notice of the objection of the third party. Corporations characterized themselves as mere service providers, without any duty to monitor or police what material was transmitted or available over their networks.
Congress passed the Communications Decency Act of 1996, to protect corporattions (mainly service providers) from liability. The legislation, in general, made U.S. domestic service providers not responsible for what its users posted or transmited. However, ISPs, and other content providers, are frequently sued to provide information on users who are alleged to be acting in an unlawful or tortious manner. ISPs are reluctant to release the information identifying the third parties for fear of action on the part of the third party to hold the ISP liable for wrongful disclosure of private personal information.
The Digital Millennium Copyright Act ("DCMA") provides an involved procedure for notice to a service provider of the posting of infringing material. Once the notice is given to the Internet provider, it is their duty to contact the alleged infringer and inform the infringer of the complaint. If the infringer does not provide evidence of its rights to use the allegedly infringing material as required by the DCMA, then the Internet provider is required to remove the infringing material.
The cost and expense of trying to get YouTube to turn over its user list to Viacom is questionable at best. Hindsight may be 20/20, but one wonders if Viacom could have saved its shareholders money in coming up with a solution, minus the court order.
To view the court order stipulation, please click here: Viacom, Inc. v. YouTube and Google