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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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Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, Electronic Communications Privacy Act, Judge Louis L. Stanton, Objections to Discovery Requests, Privacy, Relevance, S.D.N.Y, Scope of Discovery | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Court Discusses Production of Database Schemas

Posted by rjbiii on August 12, 2008

Database Schemas

Plaintiffs seek the schemas for the “Google Advertising” and “Google Video Content” databases. FN7. A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data.

FN7:Defendants have agreed to produce the schema for the “Claims” database.

A. Google Advertising Schema

Google earns most of its revenue from fees it charges advertisers to display advertisements on Google.com (the “AdWords” program) or on third party websites that participate in its “AdSense” program. Google stores data about each of the billions of advertising transactions made in connection with those programs in the Google Advertising database. The schema for that database “constitutes commercially sensitive information regarding Google’s advertising business”, the disclosure of which would permit others to profit without equivalent investment from the “years of refinement and thousands of person hours” of work Google spent selecting the numerous data points it tracks in connection with its advertising programs. Only trivial percentages of the fields and tables in the database “possibly relate to advertising revenue generated from advertisements run on YouTube,” and defendants have “already agreed to provide Plaintiffs with the small amount of YouTube-related data contained in the Google Advertising database.”

Plaintiffs argue that the schema is relevant to “show what Defendants could have or should have known about the extent to which their advertising revenues were associated with infringing content, and the extent to which Defendants had the ability to control, block or prevent advertising from being associated with infringing videos.”

However, given that plaintiffs have already been promised the only relevant data in the database, they do not need its confidential schema, which “itself provides a detailed to roadmap to how Google runs its advertising business,” to show whether defendants were on notice that their advertising revenues were associated with infringing videos, or that defendants decline to exercise their claimed ability to prevent such associations.

Therefore, the motion for production of the Google Advertising schema is denied.

B. Google Video Schema

By plaintiffs’ description the Google Video Content database stores “information Defendants collect regarding videos on the Google Video website, which is a video-sharing website, similar to YouTube, that is operated by Defendant Google.” The Google Video website has its own video library, but searches for videos on it will also access YouTube videos.

Plaintiffs argue that the schema for that database will reveal “The extent to which Defendants are aware of and can control infringements on Google Video” which “is in turn relevant to whether Defendants had ‘reason to know’ of infringements, or had the ability to control infringements, on YouTube, which they also own and which features similar content.” (plaintiffs’ italics). That states a sufficiently plausible showing that the schema is relevant to require its disclosure, there being no assertion that it is confidential or unduly burdensome to produce.

Therefore, the motion to compel production of the Google Video schema is granted.

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

Posted in 2nd Circuit, Case Blurbs, Databases, Duty to Produce, Judge Louis L. Stanton, S.D.N.Y, Scope of Discovery | Leave a Comment »

Case Blurb: YouTube; Court Grants Motion to Compel Production of 12 TB Database, Dismisses User’s Privacy Concerns

Posted by rjbiii on August 12, 2008

Video-Related Data from the Logging Database

Defendants’ “Logging” database contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” Plaintiffs seek all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website.

They need the data to compare the attractiveness of allegedly infringing videos with that of non-infringing videos. A markedly higher proportion of infringing-video watching may bear on plaintiffs’ vicarious liability claim, n3 and defendants’ substantial non-infringing use defense.

Defendants argue generally that plaintiffs’ request is unduly burdensome because producing the enormous amount of information in the Logging database (about 12 terabytes of data) “would be expensive and time-consuming, particularly in light of the need to examine the contents for privileged and work product material.”

But defendants do not specifically refute that “There is no need to engage in a detailed privilege review of the logging database, since it simply records the numbers of views for each video uploaded to the YouTube website, and the videos watched by each user.” While the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives. Plaintiffs’ need for the data outweighs the unquantified and unsubstantiated cost of producing that information.

Defendants argue that the data should not be disclosed because of the users’ privacy concerns, saying that “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.”

But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, FN5 and their privacy concerns are speculative. Defendants do not refute that the “login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube” which without more “cannot identify specific individuals, and Google has elsewhere stated:

We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot.

FN5: The statute defendants point to, 18 U.S.C. § 2710 (titled “Wrongful disclosure of video tape rental or sale records”), prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain, and in the case they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570, 572-73 (W.D.Wis. 2007) (the “subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission”), the court on First Amendment grounds did not require an internet book retailer to disclose the identities of customers who purchased used books from the grand jury’s target, a used book seller under investigation for tax evasion and wire and mail fraud in connection with his sale of used books through the retailer’s website.

Therefore, the motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *15-19 (S.D.N.Y. July 1, 2008 ).

Posted in 2nd Circuit, Case Blurbs, Data Collection, Data Sources, Databases, Duty to Produce, Judge Louis L. Stanton, Privacy, S.D.N.Y, Scope of Discovery, Undue burden or cost | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Court Grants Motion to Compel Videos “Removed” from Web Site

Posted by rjbiii on August 12, 2008

Removed Videos

Plaintiffs seek copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason, or such subsets as plaintiffs designate. Plaintiffs claim that their direct access to the removed videos is essential to identify which (if any) infringe their alleged copyrights. Plaintiffs offer to supply the hard drives needed to receive those copies, which defendants store on computer hard drives.

Defendants concede that “Plaintiffs should have some type of access to removed videos in order to identify alleged infringements”, but propose to make plaintiffs identify and specify the videos plaintiffs select as probable infringers by use of data such as their titles and topics and a search program (which defendants have furnished) that gives plaintiffs the capacity both to run searches against that data and to view “snapshots” taken from each removed video. That would relieve defendants of producing all of the millions of removed videos, a process which would require a total of about five person-weeks of labor without unexpected glitches, as well as the dedication of expensive computer equipment and network bandwidth.

However, it appears that the burden of producing a program for production of all of the removed videos should be roughly equivalent to, or at least not significantly greater than, that of producing a program to create and copy a list of specific videos selected by plaintiffs.

While the total number of removed videos is intimidating (millions, according to defendants), the burden of inspection and selection, leading to the ultimate identification of individual “works-in-suit”, is on the plaintiffs who say they can handle it electronically.

Under the circumstances, the motion to compel production of copies of all removed videos is granted.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *13-15 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Posted in 2nd Circuit, Case Blurbs, Data Collection, Data Sources, Discovery Requests, Duty to Produce, Form of Production, Judge Louis L. Stanton, S.D.N.Y, Technology, Video Files | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Court Denies Motion to Compel Production of Source Code for Video ID Program

Posted by rjbiii on August 12, 2008

Plaintiffs also move to compel production of another undisputed trade secret, the computer source code for the newly invented “Video ID” program. Using that program, copyright owners may furnish YouTube with video reference samples, which YouTube will use to search for and locate video clips in its library which have characteristics sufficiently matching those of the samples as to suggest infringement. That program’s source code is the product of “approximately 50,000 man hours of engineering time and millions of dollars of research and development costs”, and maintaining its confidentiality is essential to prevent others from creating competing programs without any equivalent investment, and to bar users who wish to post infringing content onto YouTube.com from learning ways to trick the Video ID program and thus “escape detection.”

Plaintiffs claim that they need production of the Video ID source code to demonstrate what defendants “could be doing — but are not — to control infringement” with the Video ID program. However, plaintiffs can learn how the Video ID program works from use and observation of its operation, and examination of pending patent applications, documentation and white papers regarding Video ID (id.), all of which are available to them. If there is a way to write a program that can identify and thus control infringing videos, plaintiffs are free to demonstrate it, with or without reference to the way the Video ID program works. But the question is what infringement detection operations are possible, not how the Video ID source code makes it operate as it does. The notion that examination of the source code might suggest how to make a better method of infringement detection is speculative. Considered against its value and secrecy, plaintiffs have not made a sufficient showing of need for its disclosure.

Therefore, the motion to compel production of the Video ID code is denied.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 11-13 (S.D.N.Y. July 1, 2008 )

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, Judge Louis L. Stanton, Objections to Discovery Requests, Relevance, S.D.N.Y, Scope of Discovery, Technology, Tools, Trade Secrets | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Denying Motion Compelling the Production of Source Code to Opponents

Posted by rjbiii on August 12, 2008

Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel [Defendants] to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”. [Defendants] cross-move pursuant to Fed. R. Civ. P. 26(c) for a protective order barring disclosure of that search code, which they contend is responsible for Google’s growth “from its founding in 1998 to a multi-national presence with more than 16,000 employees and a market valuation of roughly $ 150 billion”, and cannot be disclosed without risking the loss of the business. Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 7-8 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

YouTube and Google maintain that “no source code in existence today can distinguish between infringing and non-infringing video clips — certainly not without the active participation of rights holders”, and Google engineer Amitabh Singhal declares under penalty of perjury that:

The search function employed on the YouTube website was not, in any manner, designed or modified to facilitate the location of allegedly infringing materials. The purpose of the YouTube search engine is to allow users to find videos they are looking for by entering text-based search terms. In some instances, the search service suggests search terms when there appears to be a misspelling entered by the user and attempts to distinguish between search terms with multiple meanings. Those functions are automated algorithms that run across Google’s services and were not designed to make allegedly infringing video clips more prominent in search results than non-infringing video clips. Indeed, Google has never sought to increase the rank or visibility of allegedly infringing material over non-infringing material when developing its search services.

Id. at *9-10 (internal citations removed).

Plaintiffs argue that the best way to determine whether those denials are true is to compel production and examination of the search code. Nevertheless, YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation. A plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.

Nor do plaintiffs offer evidence supporting their conjecture that the YouTube.com search function might be adaptable into a program which filters out infringing videos. Plaintiffs wish to “demonstrate what Defendants have not done but could have” to prevent infringements, (plaintiffs’ italics), but there may be other ways to show that filtering technology is feasible FN2 and reasonably could have been put in place. Id. at *10 (internal citations removed).

FN2: In the Viacom action:

Viacom is currently using fingerprinting technology provided by a company called Auditude in order to identify potentially infringing clips of Viacom’s copyrighted works on the YouTube website. The fingerprinting technology automatically creates digital “fingerprints” of the audio track of videos currently available on the YouTube website and compares those fingerprints against a reference library of digital fingerprints of Viacom’s copyrighted works. As this comparison is made, the fingerprinting technology reports fingerprint matches, which indicate that the YouTube clip potentially infringes one of Viacom’s copyrighted works.

Finally, the protections set forth in the stipulated confidentiality order are careful and extensive, but nevertheless not as safe as nondisclosure. There is no occasion to rely on them, without a preliminary proper showing justifying production of the search code.

Therefore, the cross-motion for a protective order is granted and the motion to compel production of the search code is denied. Id. at *11.

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(c), FRCP 37, Judge Louis L. Stanton, Objections to Discovery Requests, Relevance, S.D.N.Y, Scope of Discovery, Search Engine Technology, Source Code, Technology, Tools, Trade Secrets | Tagged: , , , | Leave a Comment »