Looks like legitimate discovery to me [LWN.net]

Looks like legitimate discovery to me

Posted Jul 5, 2008 10:25 UTC (Sat) by tialaramex (subscriber, #21167)
Parent article: Notes on the Viacom ruling

This still looks like ordinary discovery to me.

The fact that it's "the bad guys" suing is utterly irrelevant. Any relevant information is
available during discovery unless it is privileged for one of a narrow range of specific
reasons (e.g. attorney-client), if you were allowed to arbitrarily say "No, that's private"
then it defeats the purpose of discovery altogether. The fact that some third party doesn't
want it released is worse than useless as an objection to discovery.

Viacom will take all this data and analyse it. They are hoping to find results that will
convince a court that relatively few uploads are "legitimate" (in the sense that the uploader
had copyright, or good faith reasons to believe they were licensed to upload), and that
legitimate videos represented a small (preferably tiny) fraction of content actually viewed.
They are prohibited under law from treating this data as "theirs" rather than Google's, it is
made available only to prove their case.

Google on the other hand will want to emphasise the unique user generated content and the
facilities to remove or restrict access to copyright content that has been uploaded without
permission. They'll probably also emphasise the use of Youtube by other companies, to
illustrate that it's not anti-commercial per se. From "Will it Blend?" to video game trailers,
uploading your copyright material onto Youtube is now a marketing strategy.

We have no way to know the results of such analysis in advance, the logs and to a lesser
extent deleted videos are clearly relevant to the case, and the IP addresses far from being
meaningless and easily screened are considered (rightly or wrongly) an adequate way to
determine the geographic origin of the connection, which is relevant for a US lawsuit too.

I think Google's case is a lot better than Napster's was. The legitimacy arguments for Napster
tended to be rather theoretical. Google has hours of video of people claiming George W Bush is
a Reptilian or that there's poison in the drinking water, which is the sort of speech that
courts know they're supposed to protect. Americans may not have the right to make and
distribute copies of Viacom's TV shows, but they're definitely allowed to tell people their
insane conspiracy theories.

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Looks like legitimate discovery to me

Posted Jul 5, 2008 16:59 UTC (Sat) by jwb (guest, #15467) [Link]

I do tend to agree that this discovery action is not disturbing.  But I wonder how Viacom
thinks they are going to make their case.  They must be true believers in the "long tail"
theory, because if you look at the all-time most popular videos on YouTube, nearly all of them
were uploaded by the copyright owner.

http://www.youtube.com/browse?s=mp&t=a&c=0&l=

There's a video of Judson Laipply uploaded by "judsonlaipply", a bunch of music videos
uploaded by "rcarecords" and "universalmusicgroup", some Alicia Keys videos uploaded by
"aliciakeys", and so forth.  Just the top 20 vidoes account for a billion views.  The long
tail would need to be long indeed to make up the difference.

What would seems easier to prove is that YouTube viewers have bad taste in music ;)

Looks like legitimate discovery to me

Posted Jul 6, 2008 7:04 UTC (Sun) by JoeBuck (subscriber, #2330) [Link]

Evidently Viacom thinks it will be helped if it can prove that most of YouTube's business in the early days was based on copyright violation. But that doesn't seem to address the "safe harbor" provision of the DMCA, which puts the burden on the copyright owner to issue takedown requests.