Google, Viacom Hammer Out Privacy Terms in YouTube Case

Viacom and Google have agreed to keep the personal information of YouTube users private, even as Viacom gears up for the next stage of litigation in its copyright infringement lawsuit against Google.

Google will provide user data to Viacom, but redact information that can be used to make personal identifications.

The agreement was forged after Judge Louis Stanton of the U.S. District Court of Southern New York ruled that Google had to hand over the personal records of YouTube visitors — including login IDs, the videos they watched, and the time they watched them — as part of the discovery phase in the lawsuit Viacom filed last March. Viacom alleges that Google allowed nearly 160,000 copyrighted clips to be viewed without authorization.

Rebutting a Claim

Viacom requested the user data in order to rebut Google’s claim that the clips were attracting a relatively small number of site viewers overall — and that the YouTube’s real appeal is the user-generated content.

The user data, Viacom apparently believes, will support its argument that the copyrighted material is attracting a good portion of the visitors. Viacom contends further that Google is benefiting from that traffic.

Since the judge ruled that Google must turn over the information, however, there has been an uproar over the privacy implications — particularly given the potential treasure trove of viewing data that the YouTube audience represents.

“We are talking about a huge amount of information — virtually anyone who has looked at a YouTube video is part of that data,” Barry Cohen, a partner with Thorp Reed & Armstrong, told the E-Commerce Times.

While it is doubtful that the data can provide a straightforward summary of someone’s video viewing habits, it should be easy enough to connect the dots to develop such a profile if someone were so inclined, Jeffrey C. Johnson, a partner at Pryor Cashman, told the E-Commerce Times.

“This is a huge amount of data that we are talking about,” Johnson said. “Maybe you could take one piece of it and not see anything particularly sensitive about an individual — but when you take it as a whole and start cross-referencing data points with other information, there is a substantial risk that somebody could learn a good deal about a person.”

Straightforward Transaction

Indeed, privacy issues crop up all the time in pending litigation, Nancy R. Frandsen, a partner with Woodcock Washburn, told the E-Commerce Times.

“Oftentimes in commercial litigation,” she said, “when information is provided to the other side in discovery, it is done under protective order.”

What is out of the ordinary is the attention paid to the agreement. “That is because of the case and the companies involved, I would assume,” Frandsen added, “but at this stage of litigation, [the agreement itself] is nothing unusual.”

Even without the marquee names, this case would no doubt be closely watched in the legal community and picked over by netizens who follow such developments. Assuming the case goes to trial, the legal arguments the two sides make could well carve out new protections for the use of copyrighted content online — or not.

More than likely, though, the case will be settled out of court — if only because neither side would want to risk losing. Google, for its part, doesn’t want to lose its customers’ goodwill.

The agreement to redact data is a good compromise that should satisfy both parties’ needs, Kevin Levy, cochair of Gunster Yoakley’s technology and emerging growth companies practice groups, told the E-Commerce Times.

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