A Stitch in Haste

The rules of discovery are not among my areas of expertise. I learned the basics of the Federal Rules of Civil Procedure’s Rule 34 as a 1L, and promptly forgot them all.

The libertarian rules of civil procedure, however, are most certainly within my ambit, and I can spot a violation a mile away.

Google will have to turn over every record of every video watched by YouTube users, including users’ names and IP addresses, to Viacom, which is suing Google for allowing clips of its copyright videos to appear on YouTube, a judge ruled Wednesday.
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Although Google argued that turning over the data would invade its users’ privacy, the judge’s ruling described that argument as “speculative” and ordered Google to turn over the logs on a set of four tera-byte hard drives.
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The order also requires Google to turn over copies of all videos that it has taken down for any reason.

You read that right. A private entity, Viacom, will now have a record of every YouTube video you have ever watched, including from this blog. Even if Viacom has no basis whatsoever to believe that you personally ever posted or watched any copyright-infringing video — whether of its content or anybody elses.

That simply cannot be right.

Indeed, it’s pretty obviously wrong:

The court’s order grants Viacom’s request and erroneously ignores the protections of the federal Video Privacy Protection Act (VPPA), and threatens to expose deeply private information about what videos are watched by YouTube users. The VPPA passed after a newspaper disclosed Supreme Court nominee Robert Bork’s video rental records. As Congress recognized, your selection of videos to watch is deeply personal and deserves the strongest protection.
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Google correctly argued that “the data should not be disclosed because of the users’ privacy concerns,” citing the VPPA, 18 U.S.C. § 2710. However, the Court dismissed this argument with no analysis, stating “defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.”

You read that right. Your right to privacy, not just with respect to the government but even to MTV, is “speculative.”

Again, no expert am I, but FRCP 26(b)(1), regarding the general scope of discovery, reads in part as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

But as EFF notes, the “matter” which Viacom is seeking to discover is most certainly privileged under the plain language of the VPPA — how can this judge possible say there is “no authority barring” disclosure? It’s facially absurd — as is the proposition that the 99.99% of YouTube activity that is perfectly legal and totally unrelated to Viacom can somehow be “relevant” to the litigation. This discovery request is the quintessential “fishing expedition” — with you and me as the guppies.

Meanwhile, we also have Rule 26(b)(2)(B):

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

And Rule 26(b)(2)(C):

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive [or] the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Even flagrantly ignoring the VPPA, surely the privacy intrusion upon the 99.99% of YouTuber posters and viewers who have committed no trespass upon Viacom qualifies as a “burden” or “issue at stake” here. Has this judge never heard the term “chilling effect”?

I’m not sure whether Google can file an interlocutory appeal to the discovery ruling or whether third parties such as the Electronic Frontier Foundation can seek to intervene. The latest report is that Google is now seeking permission to anonymize the records before surrendering them to Viacom.

In any case, this insane ruling will have no chilling effect on me or on Sunday CuteTuber™. I hope it will likewise not stop any of you from enjoying the feature.

More thoughts from Hit & Run.

Filed under: Law, Privacy Issues