Post Process

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Case Blurb: YouTube; Court Denies Motion to Compel Production of “Private” Videos and Related Data-For the Most Part

Posted by rjbiii on August 12, 2008

Private Videos and Related Data

YouTube.com users may override the website’s default setting–which makes newly added videos available to the public–by electing to mark as “private” the videos they post to the website. Plaintiffs move to compel production of copies of all those private videos, which can only be viewed by others authorized by the user who posted each of them, as well as specified data related to them.

Defendants are prohibited by the Electronic Communications Privacy Act (“ECPA”) (18 U.S.C. § 2510 et seq.) from disclosing to plaintiffs the private videos and the data which reveal their contents because ECPA § 2702(a)(2) requires that entities such as YouTube who provide “remote computing service to the public shall not knowingly divulge to any person or entity the contents” of any electronic communication stored on behalf of their subscribers, FN8 and ECPA § 2702 contains no exception for disclosure of such communications pursuant to civil discovery requests.

FN8:The prohibition against divulgence of stored subscriber communications set forth in ECPA § 2702(a)(2) applies only “if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing” (id. § 2702(a)(2)(B)), but defendants satisfy that condition here because their authorization to access and delete potentially infringing private videos is granted in connection with defendants’ provision of alleged storage services.

Plaintiffs claim that users have authorized disclosure of the contents of the private videos pursuant to ECPA § 2702(b)(3) (remote computing service providers “may divulge the contents of a communication * * * with the lawful consent of * * * the subscriber”) by assenting to the YouTube website’s Terms of Use and Privacy Policy, which contain provisions licensing YouTube to distribute user submissions (such as videos) in connection with its website and business, FN9 disclaiming liability for disclosure of user submissions, FN10 and notifying users that videos they divulge online in the public areas of the website may be viewed by the public.

FN11 None of those clauses can fairly be construed as a grant of permission from users to reveal to plaintiffs the videos that they have designated as private and chosen to share only with specified recipients.

FN9: “However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive * * * license to * * * distribute * * * the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business.” This authorizes YouTube to post the video on the website; the privacy designation restricts to whom it may be shown.

FN10: “YouTube does not guarantee any confidentiality with respect to any User Submissions.”

FN11: The record shows that the provision of the Privacy Policy plaintiffs point to, which states that “Any videos that you submit to the YouTube Sites * * * may be viewed by the general public” refers to “personal information or video content that you voluntarily disclose online (on discussion boards, in messages and chat areas, within your playback or profile pages, etc.)” which “becomes publicly available.”

But the ECPA does not bar disclosure of non-content data about the private videos (e.g., the number of times each video has been viewed on YouTube.com or made accessible on a third-party website through an ’embedded’ link to the video). Plaintiffs argue that such data are relevant to show whether videos designated private are in fact shared with numerous members of the public and therefore not protected by the ECPA, and to then obtain discovery on their claim (supported by evidence) FN12 that users abuse YouTube’s privacy feature “to share infringing videos with any interested member of the public while evading detection by content owners.” It is not clear from this record whether plaintiffs’ interpretation of the ECPA is correct, but their view is colorable, as the statute’s legislative history states that “a subscriber who places a communication on a computer ‘electronic bulletin board,’ with a reasonable basis for knowing that such communications are freely made available to the public, should be considered to have given consent to the disclosure or use of the communication.” Plaintiffs need the requested non-content data so that they can properly argue their construction of the ECPA on the merits and have an opportunity to obtain discovery of allegedly infringing private videos claimed to be public.

FN12: Plaintiffs submitted a snapshot of a YouTube user’s web page entitled “THE_RUGRATS_CHANNEL” which states “Disclaimer: Rugrats_and all Rugrats_related items are a copyright of Viacom” and on which the user states:

WELCOME TO MY_RUGRATS_PAGE. Previously rbt200, this is my new channel. The old one got deleted so I thought I’d start again, but this time, it’s JUST_RUGRATS! A whole channel dedicated to this fantastic cartoon! I will be posting whole episodes over the coming weeks so be sure to subscribe or add me as a friend because they might be set to private.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *25-30 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

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