The battle between YouTube (Google) and Viacom / FA Premier League is slowly moving forward with the US District Court for the southern district of New York ruling on just what information Google would have to hand over to Viacom. Viacom decided to go a huge fishing expedition and had a limited, but very important - from a user privacy point of view - success: - it now gets to know what you and I have viewed on YouTube.

The Court rightly threw out some of Viacom’s other blatant pieces of ‘fishing’ - such as asking the court to order Google to reveal its search code. Viacom claimed that this information was need to support their contention that Google had ‘purposefully designed or modified their search to facilitate the location of infringing material’. The Court dismissed this request stating that unless Viacom could offer up any plausible evidence that this was happening, then Google should not have to reveal its most valuable commercial asset to allay mere speculation on behalf of the plaintiffs. As a result the Court granted Google’s motion for a protective order preventing the release of that information.

The Court was similarly dismissive of request for access to the source code for the ‘Video ID’ programme - this is used by google to locate infringing material based on video reference samples provided by copyright owners; access to the schema for the Google advertising database (denied because Google had already agreed to produce the only relevant data in the database); and user related data from the user and mono databases - which contain information about all the videos including user supplied titles and keywords, all comments, whether content has been flagged as inappropriate and any action taken by Google. Finally the court denied a request for details on any videos marked as private on the site.

However, the Court still granted the big win to Viacom by granting its request that Google turn over every record of every video watched by YouTube users, including users’ names and IP addresses. Viacom claims that it wants this information to demonstrate that the most viewed content on YouTube is copyright infringing material. Google tried to argue that that data should not be released as it would breach the privacy of users and ‘plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP Address’.

In perhaps the most amusing argument in the opinion - well amusing unless you want Viacom and Co knowing all the videos you’ve ever watch on YouTube - the Court turned Google’s own defence of its data retention policies (knocked out in response to the European Commission’s position that IP address could be considered ‘personal information’ ) quoting Google saying “We …are strong supporters of the idea that data protection law should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot”, against it to justify the release of the data.

The release of the data will certainly make it easier for Viacom to go directly after users it considers to be infringers (a la RIAA in the music industry), whether or not they succeed in the main case against Google.

Whilst I am sure a lot of YouTube users do not use their real names as their login/user name, and awful lot will, or at least will use a name, that when combined with IP address data could be used to identify them. One only need to look at what happened when the AOL search data was posted on the internet and a couple of people were identified from that data alone to know that Viacom, the FAPL and others would be getting their hand on valuable data that has uses far beyond trying to prove their case, and would effectively enable them to track every user of YouTube going forward.

The Electronic Frontier Foundation has already reacted, calling the order a violation of the Video Privacy Protection which “prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain.” The Judge said this didn’t apply in this case, the EFF says it does because the act refers to “prerecorded video cassette tapes or similar audio visual materials.” A YouTube video would thus qualify as audio visual material. YouTube is, therefore a “video tape service provider” under the act, because it is “engaged in the business [of] delivery of … audio visual materials.” The VPPA protects “personally identifiable information,” which is defined to include “information which identifies a person as having requested or obtained specific video materials or services.” As a result the court should have denied Viacom’s request for this information and Google should appeal.