NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?

September 17, 2008

News:  NBC Universal General Counsel Rick Cotton reports the amazing success of keeping unauthorized copies of NBC’s broadcast of the highly successful (Mike Phelpsian) OIympics in Beijing off the Olympics.  Cotton says that less than 1% of Olympics videos online were unauthorized. 

NBC used a 2 pronged strategy: (1) get other online providers to use digital fingerprint technology to filter out those Olympics video that didn’t have the fingerprint–Cotton says 80% of the success is attributable to this strategy; and (2) using Web crawling technology from Vobile to police the web for unauthorized clips, which allowed NBC to send DMCA notices to sites.

Cotton beamed about YouTube’s digital fingerprinting technology the most.  According to BusinessWeek, “By the way, Cotton says the most impressive automation occurred with YouTube. While the online video giant has had a reputation with many broadcasters for not doing enough to protect copyrighted content (not to mention a $1 billion lawsuit from Viacom), Cotton says YouTube worked closely with NBCU. Also, he says YouTube’s homegrown content recognition system worked effectively. This should come as a surprise to many of my sources, who were convinced that Google was doing as little as possible to perfect a technology whose reason for being is to keep content off its site. ‘The most extensive automation we had was with YouTube. Their system worked very well,’ says Cotton.”  (More)

Analysis: This evidence from NBC Universal provides a devastating blow, in my view, to Viacom’s copyright case against YouTube.  When coupled with the recent DMCA safe harbor victory for Veoh, NBC Universal’s backing of YouTube’s fingerprinting anti-infringement technology significantly bolsters YouTube’s defense that it goes above and beyond the DMCA safe harbor. 

I have to admit that I marveled at the lack of unauthorized Olympics videos on YouTube.  Now that NBC Universal has explained the amazing success of YouTube’s fingerprinting technology, Viacom and the other plaintiffs suing YouTube will be hard-pressed to argue that YouTube is not doing enough to combat copyright infringement.  The 2008 Olympics may turn out to be not only a huge victory for Michael Phelps, but also Chad Hurley and the team at YouTube.

I think a key lesson of NBC’s success in keeping unauthorized Olympics videos off the Internet is that copyright holders must share the burden in protecting their copyrights.  Yes, copyright holders must spend money to enforce their copyrights!  Too often in the rhetoric against YouTube some of plaintiffs seem to want to shift the expense of enforcement to YouTube.  The DMCA, however, always envisioned a sharing of that burden under a notice-and-takedown system.

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DMCA safe harbor protects Veoh online video sharing — major victory that may help YouTube

August 28, 2008

News:  The district court in the Northern District of California decided in favor of Veoh, an online video sharing site, holding that it fell within the DMCA safe harbor.  Michael Arrington of Tech Crunch has 2 excellent analyses of the decision here and here.  One of the key parts of the ruling is that a video sharing site does not become disqualifed from the safe harbor by setting up a system that converts videos into a different (here, Flash) format (the plaintiff porn entertainment company claimed that such conversion showed that Veoh had control over the content).  Arrington also lists a number of key parts of the decision on his blog.

Analysis:  I am poring over the opinion myself and hope to have a followup soon.  The copyright cases against YouTube are in New York, so this precedent is not binding in that jurisdiction.  But it is undoubtedly helpful to YouTube’s case there.

UPDATE:  Here are some of the most important principles the court appeared to embrace in the Veoh case:

1.  A video sharing site doesn’t have the “right and ability” to control infringing activity just by setting up a system where users can upload videos.  The site’s control over its system is different from control over the content uploaded by users.  Op. at 28.

2.  The presence of professional content in videos (without copyright notices) that are posted on video sharing sites do not necessarily create a “red flag” of infringing activity.  Op. at 21-22.

3.  Court completely rejects argument that Veoh should have prescreened every video finding that practically infeasible (and in any event it’s not required by DMCA).  Op. 28

4.  The court says that Veoh policed its system as presently architected, and that was reasonable enough under the DMCA.  Op. 29  A lot of what Veoh did (e.g., hashing or fingerprinting technology) appears to be what YouTube is doing as well.


Negative publicity forces Viacom to narrow scope of discovery request from YouTube, redacting usernames

July 15, 2008

News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.

Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish.  Also, it probably takes care of any VPPA problem.


YouTube users revolt against Viacom for seeking histories of all videos watched on YouTube, including user names of people who viewed videos

July 8, 2008

YouTube’s privacy mess — will users revolt?

July 5, 2008

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.


Judge Stanton orders YouTube to reveal usernames, videos watched, + viewing history over YouTube’s privacy law objections

July 3, 2008

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.

EFF argues that the court order violates the Video Privacy Protection Act (VPPA). The Judge apparently didn’t think it applied (dismissing it in a footnote).

Michael Arrington of Tech Crunch agrees with EFF and lambastes Judge Stanton for the ruling, though with the “utmost respect.”

Mike Masnick of Tech Dirt agrees with EFF and thinks the disclosure of usernames and videos watched violates VPPA.

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.


Some copyright lawsuits v. YouTube disappear

February 3, 2008

News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.

Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.

One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?

Here’s an update on all the cases.

(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck Richard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)

(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)

(4) VOLUNTARILY DISMISSED: David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)

(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)

(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.