District court proceedings
The case was first heard at the District Court for the Southern District of New York in 2008.[2] During the pre-trial discovery phase, Viacom requested and received a court order for YouTube to hand over data detailing the viewing selections of every user who had ever watched videos on the site. The move led to concerns that the selections of individual users could be identified through a combination of their IP addresses and usernames. The decision was criticized by the Electronic Frontier Foundation, which called the court order "a setback to privacy rights";[10] and privacy advocates such as Simon Davies, who stated that the privacy of millions of YouTube users was threatened.[11]
Judge Louis Stanton dismissed the privacy concerns as "speculative", and ordered YouTube to hand over documents totaling about 12 terabytes of data.[12] On the other hand, Stanton rejected Viacom's request that YouTube hand over the source code of its search engine, saying that it was a trade secret. As a result of the data handover, many users began posting videos under the group name "Viacom Sucks!", often containing large amounts of profanity.[11] However, Google and Viacom agreed that Google could anonymize all the data before giving it to Viacom.[13] The privacy deal also applied to other litigants including the English Premier League, the Rodgers and Hammerstein Organization, and the Scottish Premier League.[14]
Meanwhile, the deal exempted employees of both the defendants and the plaintiffs, whose de-anonymized data was provided separately. The employee data was later used in filings by both sides, because in some cases employees of the entertainment firms had uploaded their companies' content to YouTube voluntarily. Viacom cited internal e-mails sent among YouTube's founders discussing how to deal with clips uploaded to YouTube that were obviously the property of major media conglomerates. Google stated that Viacom itself had "hired no fewer than 18 different marketing agencies to upload its content to the site".[15] Google argued that since Viacom and its lawyers were "unable to recognize that dozens of the clips alleged as infringements in this case were uploaded to YouTube" with Viacom's express authorization, "it was unreasonable to expect Google's employees to know which videos were uploaded without permission."[16][17]
In 2010 Judge Stanton ruled that Google was protected by provisions of the Digital Millennium Copyright Act (DMCA), notwithstanding evidence of intentional uploads of copyrighted content by the entertainment companies themselves.[9][18] Stanton held that while YouTube undeniably had general knowledge that some copyrighted material had been uploaded by users, it did not know which clips had been uploaded with permission and which had not.[8] He said that mandating video-sharing sites to proactively police every uploaded video "would contravene the structure and operation of the D.M.C.A."[8] Stanton also noted that YouTube had successfully enacted a mass take-down notice issued by Viacom in 2007, indicating that this was a viable process for addressing infringement claims. And finally, Stanton rejected Viacom's comparisons between YouTube and other Internet-based, media-sharing companies, such as Grokster, that had previously been found guilty of contributory copyright infringement.[8]
