News: YouTube is in serious damage-control mode, after being ordered by Judge Stanton to turn over, among other things, (i) apparently all videos ever removed from YouTube after being flagged, the videos number in the millions; and (ii) for every video ever uploaded on YT, a log of the viewing history of YouTube users, including the IP addresses of users plus their usernames, and the time they watched the video. It’s quite possible this order violates the privacy statute VPPA (as discussed in another post below), but, at this point, not sure YouTube is asking the court to reconsider its order or seek an immediate appeal to protect the privacy interests of its users.
On its blog, YouTube said its trying to convince Viacom to allow YT to redact the usernames and IP addresses to preserve user confidentiality. We’ll see what happens.
As you might expect, many YouTube users are angry about release of their viewing history. Here’s a typical angry comment posted on YT:
“I have an idea, STOP LOGGING IPs. It bothers me that you guys are keeping track of viewing histories by IP for such a long time. Sure, a simple IP doesn’t give out personal information but these bastards are known to contact service providers to attempt and retrieve the personal details attached to an IP, or at least to send scare tactic emails to their customers. You have a staff of friggin geniuses at your disposal, why not get them to come up with a way to REALLY PROTECT our privacy. It was fun watching videos here, but I think I’ll avoid YouTube videos from now on, log out of my account for good and if absolutely necessary, view videos through a proxy. Thanks for trying, but we know and you know you can try a lot harder.”
Analysis: One thing that surprises me is that apparently YouTube keeps the files of all videos ever removed from YouTube — 12 terabytes of files + millions of videos. Offensive videos, pornographic videos, hate videos, apparently all saved by YouTube. Maybe it just takes more work to completely remove them from YT’s servers, or maybe YT needs the deleted files to try to stop copycat repostings of the deleted files?? I don’t know.
News: Tim Lincecum is a 5′10″ rookie pitcher phenom for the San Francisco Giants. He’s on the cover of Sports Illustrated this week. Here’s a YouTube video analyzing his pitching mechanics.
News: In the Viacom v. YouTube copyright lawsuit, Judge Stanton ordered YouTube to disclose “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,” which includes “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.” You can read the opinion by clicking here.
Analysis: In terms of the privacy law, the key question is whether online videos fall within “prerecorded video cassette tapes or similar audio visual materials” under the VPPA. I haven’t read the statute yet, but my initial “ordinary meaning” interpretation of those words would be that online videos clearly are “similar audio visual materials” to video tapes. There’s really not much difference between online video and a video tape.
Viacom said that it would handle the user data confidentially and just wants to prove its case (more). OK, even if YouTube users can trust Viacom, there are numerous other plaintiffs involved in the class action lawsuit against YouTube who will also receive the information.
Another thing wrong with Judge Stanton’s analysis is the notion that a YouTube “login ID is an anonymous pseudonym” (p. 13). There are plenty of YouTube usernames that are either actual birth names–Esmeedenters, Terranaomi, Judsonlaipply, TayZonday, etc–or usernames that are readily identifiable people in the YouTube community–Renetto, Smosh, Lisanova, Justine, Paperlillies, Hotforwords, Valsartdiary, etc. Sure, many YouTube usernames are not well known, but many others are.
Barack Obama’s campaign strategy revealed on Powerpoint. This is clearly a response to the McCain camp’s very slick slide show — whiich was quite frankly, more visually impressive — on Apple Keynote, which is below:
Al Gore on the problem: “What is missing is a sense of urgency.” This is the best speech I have ever seen Al Gore give. This is better, even more passionate and inspiring than the Academy Award winning “An Inconvenient Truth.” Please watch it and share it with others, before it’s too late. You owe it to your children and the future of our planet.
News: I wanted to thank Tom Goldstein at Scotus blog (the premier site for Supreme Court action) and Dan Slater at Wall Street Journal’s law blog for referencing my last post that suggests how the Supreme Court’s decision in the gun case (DC v. Heller) is helpful to speech technologies + the freedom of the press.
The basic pivot point that connects the 2nd Amendment and the Free Press Clause in the 1st Amendment is that they are the only 2 provisions in the Constitution in which the Framers sought to protect a right to a technology — the right to “keep and bear arms” in the 2nd amendment and the right to the freedom “of the press” (meaning the printing press). I’ve outlined the history of the Free Press clause in an article you can download here. My article shows that the Framers clearly intended the Free Press clause to be a limit on the Copyright Clause, specifically to prevent the government from directly regulating or restricting the technology of the printing press. Indeed, the history behind the Free Press clause is strikingly similar to the history behind the 2nd Amendment in terms of both the English abuses in restricting a technology (guns or the printing press) and the Framers’ subsequent ratification debate between Antifederalists and Federalists.
If the Supreme Court follows the same approach in interpreting the history and text of the Free Press Clause as it employed in the gun case, then the result is likely to be that Congress’s efforts to restrict speech technologies under copyright law would be unconstitutional.
News: The Supreme Court announced its 5-4 decision today in the gun-control case in District of Columbia v. Heller, declaring the DC gun control law banning handguns unconstitutional. You can download the opinion here. Justice Scalia wrote the majority opinion and applied a close textual analysis of the Second Amendment, along with a review of the history of various uses of the words “keep,” “bear” and “arms” in England, state constitutions, and contemporaneous writings.
Analysis: Here are my initial reactions. First, it is amazing that this is the first time in 217 years that the Supreme Court has definitively ruled on the Second Amendment right. That’s a very long time of silence. Second, I’m not an expert in gun control, so I can’t speak to those issues. But for technology companies dealing with speech-related technologies, the Court’s precedent on guns may actually be very good for speech technologies.
As I’ve said in the past, there are only 2 provisions of the Constitution that deal with technologies: (1) the Second Amendment’s “arms” and (2) the First Amendment’s “press,” referring to the printing press. If the Court interprets the Free Press clause in a parallel manner to the way it has interpreted the Second Amendment, it is very possible that Congress’s present or future attempts to regulate speech technologies under copyright law could be unconstitutional.
UPDATE: A number of people have read this post and may be skeptical about the connection. I’ve written a few more words about the historical connection between guns + the printing press, between the 2nd Amendment and the 1st, on a subsequent post you can find here. Although the Framers were dealing with two very different technologies (guns + press), the origin of and debate over both clauses followed a strikingly similar path.
And I should add Justice Scalia himself cites (p. 29) to a Massachusetts supreme judical court opinion and a 1868 con law treatise (p. 46) that make the direct analogy to the freedom of the printing press and the right to bear arms:
“The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”
“The [2nd Amendment] clause is analogous to the one securing the freedom of speech and of the press.”
And then Justice Scalia himself draws the analogy to the First Amendment, although only the free speech clause (free press is often overlooked):
“The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.” (p. 63)
News: I’ve just published my Fifth Report analyzing the videos of the presidential candidates on YouTube. Barack Obama continues to beat John McCain in popularity on YouTube by wide margins.
News: Newteevee reports that Avril Lavigne has come within striking distance of the Most Viewed Video, all-time on YouTube, which has been long held by the “Evolution of Dance” by Judson Laipply. The margin is around 800,000 now.
Analysis: To be honest, I’m amazed “Evolution of Dance” lasted this long on top. But I would hate to see user-generated content lose out to a professional video. So please play the video below a million times!
News: Several friends have sent me this video, and I’ve been meaning to blog it. It’s video compiled by the British government’s surveillance cameras of a band that purposely shot themselves in front of the videos to make a music video. It turns out in England a citizen has a right to obtain such surveillance video taken of them from the government. The band is called the Get Out Clause, and the song and video are very cool! The lead singer sounds a little like Chris Martin of Coldplay.
News: YouTube has launched a new feature called “annotations” that allows user to write text overlays in videos, as well as enable linking within videos to allow you to click through to several different videos. Val’s Art Diary uses the annotations to discuss the Arnolfini Marriage painting. Check it out!
News: p2p software was the bane of the music and movie industry, going back to Napster. Now, Viacom-owned Spike TV is turning to p2p to promote one its upcoming shows called the Factory, which will be available for free downloading and sharing on Limewire and other p2p networks. More from LA Times and Techdirt
Analysis: Viacom, of course, is suing YouTube. So it’s interesting to see one of its companies try to tap into the peer-to-peer networks and free file-sharing of its copyrighted shows. I do think it’s good for Viacom and other media companies to try to promote their shows through p2p networks.
News: Eric Schmidt again admits that Google hasn’t figured out a way to monetize YouTube. The video of the interview by Ken Auletta is located here. Click here for a news summary.
Analysis: CNET’s Don Reisinger has a pretty scathing review:
“Let’s face it — the YouTube acquisition was a major blunder and regardless of how successful the company is in other areas, there’s no reason to suggest advertisers are willing and ready to place ads on videos of 18-year olds shooting milk out their nose or 80-year old men mooning a parade.
“As far as I can tell, much of the online advertising money is going to sites like Hulu where the content is controlled, the shows are regulated, and the demographics of the audience are easily obtained.
“How does YouTube and its content compare? The audience is huge, but it’s filled with a diverse set of people who generally view a select few of the more popular videos; the videos are barely regulated; and the content isn’t controlled in the least. Why should any advertiser want to send cash to a service like that? * * *
“Will YouTube become the dump of advertising where strip clubs and brothels will advertise on sexually-oriented videos and unknown politicians will sell themselves on left- or right-leaning clips? I certainly don’t see Johnson and Johnson sending ad dollars to YouTube anytime soon.”
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