Scary! YouTube ordered to hand your viewing history to Viacom
But there's a silver lining to one of the most bone-headed legal decisions in recent times.
Update: This post has been updated with comments from Viacom.
In the fall of 1987, a freelance reporter named Michael Dolan learned that judge Robert Bork kept an account at Potomac Video, a D.C. rental shop. This was at the height of the contentious and ultimately failed Senate confirmation hearings for Bork’s nomination to the Supreme Court — so naturally, Dolan thought there was a story here, and he went to work on getting a peek at Bork’s video rental history.
It wasn’t hard work. Dolan popped into Potomac Video one afternoon and asked if he could look at Bork’s movie file. “There sure are a lot of them,” the assistant manager replied. “Is it OK if I make a Xerox copy?”
That was OK with Dolan; weeks later, he published Bork’s rental history in the D.C. alt-weekly the Washington City Paper.
Bork’s taste in movies was itself unremarkable (“First off, despite what all you pervs were hoping, there’s not an X in the bunch, and hardly an R,” Dolan wrote). But the publication sparked outrage from groups on the right and the left — including the ACLU and People for the American Way, which had vehemently opposed Bork’s nomination.
In 1988, Congress, spurred by the fear that the press might now easily unearth all politicians’ movie habits, passed the Video Privacy Protection Act, which remains one of the strongest privacy laws in the nation. The law prohibits stores from disclosing video histories unless ordered to do so by a court — and even then, customers must be given “the opportunity to appear and contest the claim” of any party seeking to learn what you watched.
I tell you all this as a historical wind-up to yesterday’s shocking news: In the ongoing copyright battle between Viacom and Google, a judge ordered Google’s subsidiary YouTube to hand over an enormous trove of data identifying who watched what and when on the video-sharing site.
Viacom’s lawyers argued that they needed this data to prove that “infringing” videos — e.g., clips of “The Daily Show” and “The Colbert Report” — were more popular than non-infringing user-generated videos. Presumably, if it proves this, Viacom might prevail in its argument that YouTube’s bread-and-butter was illegal videos, and thus owes some of its success — and billions of dollars — to media companies.
The database in question is astonishingly broad: Viacom asked for 12 terabytes of logs (approximately 12,000 GB) that detail each instance in which someone pressed Play on a YouTube video, plus the YouTube username of the viewer who watched it, the date and time at which the user pressed Play, and the IP address of the viewer’s computer. The database covers videos seen both on YouTube as well as those embedded on other pages: If you’ve never visited YouTube but have clicked on a YouTube video from your daily newspaper’s Web site, you’re in the database.
Google objected to Viacom’s request on the grounds that producing the database would be expensive, time-consuming, and would invade YouTube users’ privacy. The judge — Louis Stanton of the Southern District of New York — Judge Stanton dismissed all Google’s arguments. The company’s “privacy concerns are speculative,” he wrote. (PDF here.)
Such pat reasoning should give you a general sense of the depth of bone-headedness in Stanton’s ruling. As Kurt Opsahl of the Electronic Frontier Foundation points out, the Robert Bork-inspired Video Privacy Protection Act applies not just to video cassettes but to “audio visual material” in general. Clearly it should apply here, and clearly, millions of YouTube users ought to have been given a chance to fight this invasion of our privacy.
But the real villain here isn’t Judge Stanton — it’s Viacom. I’ve previously raked the company over the coals for suing, rather than enjoying the fruits of, YouTube’s success (for instance last year, when it sacrificed potentially millions in ad dollars by pulling down the popular MTV clip of Britney Spears’ poor performance at the Video Music Awards).
But now Viacom’s sinking lower: Not content to fight just Google, the company looks to be manning the deck against us all. Sure, Judge Stanton might call this “speculative,” but think on it a bit: If Viacom’s willing to take on Google, what qualms will it have in suing you or me, recording industry-style, now that it knows what we did on YouTube? (Update: Viacom says it can’t use this data to sue you.)
All’s not lost. Google might manage to reverse this decision on appeal, and Viacom, gauging the outrage, could decide to withdraw or limit its request.
But our real hope here is legislative or regulatory action. Indeed, optimistic sorts might see a silver lining here.
As privacy scholar Jeffrey Rosen has written, “The politics of privacy tends to be largely reactive, fired by heartstring-tugging anecdotes that capture the public imagination.” Just as the airing of Robert Bork’s video history was the kick-start Congress needed to fix a clear privacy hole born out of then-new technology, this ruling might backfire on copyright holders, pushing lawmakers, finally, to curb the privacy-invading reach of copyright fights.
What we watch on YouTube is every bit as personal as what one rents from a store like Potomac Video. Indeed, it might be more private, and more salacious — imagine the fun you’d have if you were looking for unsavory data about a future Supreme Court nominee in 12 terabytes of YouTube logs!
In his floor speech in favor of the Video Privacy Protection Act, Vermont Sen. Pat Leahy argued that new database technologies capable of tracking private behavior called for new privacy regulations. That was two decades ago — and it remains true, still.
——
Update: A representative for Viacom e-mailed me to say that I’m overreacting. “We have no ability (and absolutely no desire) to use this data to sue end-users,” he argued, pointing out that all discovery documents in the case are bound by this confidentiality agreement.
Under this agreement, no one at Viacom will get to see these YouTube logs — only Viacom’s outside lawyers and experts, as well as court personnel, will have access to the data. The agreement also restricts the data to this case alone, which would seem to prevent the company from using the logs to sue users individually.
Michael Fricklas, Viacom’s counsel, told the New York Times, “I can unequivocally state that we will not use any of this information to enforce rights against end users.” He added that the company is looking into ways to “anonymize” the logs “to enhance the security of information that will be produced.”
Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society. More Farhad Manjoo.
“Tubes”: What the Internet is made of
If you think your data lives in the cloud and flies through the air, you're wrong
Andrew Blum The title of Andrew Blum’s “Tubes: A Journey to the Center of the Internet” is a ricocheting joke. When Alaskan Sen. Ted Stevens described the Internet as a “series of tubes” back in 2006, he was roundly mocked for not understanding the online world despite being chairman of the Commerce, Science and Transportation Committee and therefore instrumental in overseeing it. Stevens may not have known what he was talking about, Blum (a correspondent for Wired magazine) acknowledges, but he wasn’t wrong, either. In writing this account of “the Internet’s physical infrastructure,” Blum found that “one thing [the Internet] most certainly is, nearly everywhere, is, in fact, a series of tubes.”
Continue Reading Close
Laura Miller is a senior writer for Salon. She is the author of "The Magician's Book: A Skeptic's Adventures in Narnia" and has a Web site, magiciansbook.com. More Laura Miller.
Google’s darkening agenda
The company's attitudes toward privacy have grown increasingly dismissive. Now some countries are taking notice
In this May 11, 2011 file photo, attendees chat at the Google IO Developers Conference in San Francisco. (Credit: AP Photo/Marcio Jose Sanchez, File) In 1999, Scott McNealy, the former head of Sun MicroSystems, reportedly declared, “You have zero privacy anyway….Get over it.” He unintentionally let the proverbial cat out of the bag of the digital age.
In 2009, McNealy’s assessment was confirmed by Google’s CEO, Eric Schmidt. In an interview with NBC’s Mario Bartiromo, he proclaimed, “If you have something that you don’t want anyone to know maybe you shouldn’t be doing it in the first place.” Schmidt’s words have become Google’s new mantra. Welcome to 21st-century corporate morality.
Who owns the cloud?
Google claims users retain intellectual property rights, but the terms of service tell a more complex story
(Credit: winul via Shutterstock) When you hear the phrase “property rights,” you probably think of farmers fighting environmental regulators and homeowners arguing with oil drillers. But in the Information Age, you should also be thinking about your computer – and asking, how much of you is really yours? It’s not a navel-gazing rumination from a college Intro to Existentialism class – it’s an increasingly pressing question in the brave new world of social networking and cloud computing.
Last week’s big technology announcement spotlighted the thorny issue. As the Los Angeles Times reported, Google’s announcement of its “Google Drive” came with the promise that users will “retain ownership of any intellectual property rights that you hold in that content.” But when you save files to Google’s new hard-drive folder in the cloud, the terms of service you are required to agree to gives Google “a worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute (your) content” as the company sees fit.
Continue Reading Close
David Sirota is a best-selling author of the new book "Back to Our Future: How the 1980s Explain the World We Live In Now." He hosts the morning show on AM760 in Colorado. E-mail him at ds@davidsirota.com, follow him on Twitter @davidsirota or visit his website at www.davidsirota.com. More David Sirota.
The birth of the Google Translate era
The rise of new technology is changing the way we think about language and the world. An expert explains how
For most of human history, the notion of a “Star Trek”-style universal translator seemed as farfetched as a warp drive or American universal healthcare. Not anymore: In recent years, Google Translate has made automated translation as easy as copy-and-pasting text into a browser; you can now auto-translate entire news articles at the click of a button, and a host of mind-blowing translation apps have hit the iPhone. Word Lens, for example, allows you to point your camera at a piece of text and see it translated in real time on your phone. (Check out the app trailer here).
Continue Reading Close
Thomas Rogers is Salon's Arts Editor. More Thomas Rogers.
Senators clearly don’t understand Google
At the company's antitrust hearing, CEO Eric Schmidt defends himself to a subcommittee that seems very confused
Google Executive Chairman Eric Schmidt is sworn in on Capitol Hill in Washington, Wednesday, Sept. 21, 2011, prior to testifying before the Senate Antitrust, Competition Policy and Consumer Rights subcommittee hearing to answer whether Google has used its dominance unfairly as it has grown from an Internet search engine expanding into broader services and markets. (AP Photo/J. Scott Applewhite)(Credit: J. Scott Applewhite) Google chairman Eric Schmidt had an easy time of it during his much anticipated congressional testimony before the Senate Judiciary Committee’s antitrust subcommittee yesterday afternoon, in large part because senators on both sides of the aisle clearly have little grasp of the nuances of how Google works. Schmidt is likely counting that as a victory. But ignorance is not a guaranteed long-term strategy for Google.
Continue Reading CloseNancy Scola is a New York City-based political writer whose work has appeared in the American Prospect, the Atlantic, Columbia Journalism Review, New York Magazine and Salon. On Twitter, she's @nancyscola. More Nancy Scola.
Page 1 of 30 in Google