YouTube vs. Viacom: Internet Privacy Perpetrators or Piracy Preventers?

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Old news but big, important news — last Tuesday, a federal judge ordered Google to provide Viacom with a record of every video watched on YouTube (excluding privately-shared videos), including user login IDs, when the user started watching the video, the user’s IP address and the video identifier.

Since then, internet privacy advocates have made it known that this is a grievous violation of privacy rights. Essentially, Viacom could not only file a lawsuit against YouTube for providing a venue for such piracy to be committed, but also file lawsuits against identified individual users for committing the piracy.

The judge’s order raises a number of questions. First of all, is YouTube’s user data truly private?

Let’s begin by setting precedence. As a result of Supreme Court nominee Robert Bork’s video rental records being published in a newspaper, the Video Privacy Protection Act (VPPA) of 1988 was passed. The Act protects the privacy of video rental records for individuals. Specifically, it includes:

A general ban on the disclosure of personally identifiable rental information unless the consumer consents specifically and in writing.

There is no current legislative protection for internet video privacy, so the question is whether YouTube falls under the protection of the VPPA. Minus the renting aspect, YouTube collects very similar data to a video rental service: who’s watching and what is being watched.

Following the judge’s order, the Electronic Frontier Foundation (EFF) shared its opinion and some very useful information. Not only did the EFF say that the order is in violation of the federal VPPA, but also pointed out that the Act covers “prerecorded video cassette tapes or similar audio visual materials.”

So, even without the evidence of similarity between YouTube and video renting, YouTube’s information would seem to be protected by the VPPA.

Are YouTube users truly committing piracy?

Merriam-Webster defines piracy as, “the unauthorized use of another’s production, invention, or conception especially in infringement of a copyright.”

Viacom definitely has a case there. In some instances on YouTube there is certainly unauthorized use of “another’s production.” But, in this internet-age, many of these videos are available to view for free elsewhere online. In February of 2007, Viacom announced they would be hosting shows and films on YouTube’s competitor, Joost, just weeks after the initial request to remove content from YouTube. So, isn’t YouTube simply providing another channel of exposure, perhaps an even larger one?

Should Viacom actually prohibit this? What’s the difference between posting an unauthorized video on YouTube or a forum posting a link to a page where the video originated from? My guess is that Viacom’s lawyers would say there are still episodes that have not been released yet, which fall under the unauthorized use definition of piracy. Also, since users that would normally visit Viacom’s online channels to view videos are able to go to instead, YouTube is generating online ad revenue from traffic that essentially belongs to Viacom, not to mention lost online ad revenue that Viacom would have generated if it were the sole distributor of that content online.

Do we need a federal internet privacy act?

The Video Privacy Protection Act extends its protection to other materials, but may not be defined well enough to hold up in court. Obviously, a lot has changed in the 20 years since the VPPA came into being. If we needed laws back then to protect information about the public’s use of one form of media, then why not the same protection now for another form of media, being either online video sharing or the internet in general?

Maureen wrote a nice post back in April about how much information Google knows about you. Imagine if that information is allowed to become available to corporations in future lawsuits. Let’s hope this one gets snuffed.

Whichever road this case takes, there should be few legal effects on the average marketer using YouTube to promote their products or services through online video. That said, if YouTube gets blacklisted in federal court as a venue for video piracy, there may be an initial scare for small to medium businesses, but that should fade and we’ll see YouTube continue to be a viable marketing channel.

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