Analysis: Viacom vs YouTube - Education by Litigation

Authored by Paul Sweeting on July 8, 2008 - 10:25am.

Many a lament has already been sung over the privacy implications to the judge's discovery ruling granting Viacom access to the login names and IP addresses of all users who have ever watched a video on YouTube as part of Viacom's $1 billion lawsuit against the Web site and its parent company, Google. So Media Wonk won't bother going over the same ground. (Good discussions of the issue can be found here and here.) But comparatively little attention has been focused on another likely outcome of the judge's order that holds potentially significant implications for the future of the online video business.

The sweeping nature of the judge's order--which compels YouTube to turn over "all data from the Logging database [i.e. the login names and IP addresses of users] concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website" [emphasis added]--means Viacom is likely to come out of its lawsuit knowing more about the content, audience, reach and viral properties of user-generated video, in finer detail and over a longer period of time, than almost any other media company. Given that media companies ultimately will need to make their peace with UGC sites through some form of licensing regime, the information Viacom will be hoovering up could turn out to be incredibly valuable in future negotiations. Basically, the judge has ordered YouTube to show all of its cards to a company it will eventually have to do business with.

The order comes with some restrictions on how the data produced in the discovery process can be used. Viacom has agreed, for instance, that the data will not be used to target individual users with copyright infringement suits. But it's free to analyze the data however it wants as it tries to understand the nature of YouTube's business and operations in order to refute Google's asserted defenses in the case. Once that understanding is gained, it's not going to be ungained simply because Viacom can't use it to bring further lawsuits.

Reading the judge's entire order, in fact, it's hard not to conclude that gaining just such a look into the inner workings of YouTube and the user-generated video business wasn't at least part of Viacom's motivation in bringing the lawsuit in the first place, win or lose. Just reading the judge's summary conclusion of his order is enough to grasp the sweeping nature of Viacom's discovery requests (most of which the judge actually denied).

From the order:
CONCLUSION For the reasons set forth above:

(1) The cross-motion for a protective order barring disclosure of the source code for the YouTube.com search function is granted, and the motion to compel production of that search code is denied;

(2) The motion to compel production of the source code for the Video ID program is denied;

(3) The motion to compel production of all removed videos is granted;

(4) 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;

(5) The motion to compel production of those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied;

(6) The motion to compel production of the schema for the Google Advertising database is denied;

(7) The motion to compel production of the schema for the Google Video Content database is granted;

(8) The motion to compel production of the private videos and the data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.

Some of those requests may simply have been tactical--an effort by Viacom to increase the cost and effort to Google of defending itself. But clearly Viacom was looking to learn as much as possible about YouTube's technical and informational capacity to monetize user-created videos, all of which would be useful beyond merely enforcing its copyrights.

Just from what the judge did grant, it's in a position to learn a lot more than just names and IP addresses.

Paul Sweeting

Paul Sweeting is the Editor of Content Agenda, a business-to-business brand dedicated to the nexus of content, technology and business. This piece was originally published on Paul's blog "Media Wonk" on Content Agenda and is posted on DMW with the author's permission.

Image by dannysullivan