ANALYSIS

Copyright: Piracy vs privacy

Copyright: Piracy vs privacyViacom's piracy dispute with YouTube and its parent company Google is at the forefront of the rapidly-changing copyright law landscapeAt the beginning of July, a US court ordered Google to disclose the personal details and viewing habits of every user to have visited the immensely popular video-sharing website YouTube. This amounted to a huge 12 terabytes of data. The reason? Viacom, which owns MTV and Paramount Pictures - the studio behind films ranging from White Christmas to Jackass: The Movie - is suing YouTube's owner, Google, for massive copyright infringement. It is alleging that 160,000 unauthorised clips had been viewed more than 1.5 billion times on the video-sharing portal.It is clear that there is substance to Viacom's claims. A quick search on YouTube reveals hundreds of hits for significant numbers of Viacom material, whether from Paramount, MTV, Nickelodeon or Comedy Central. And it is understandable that Viacom and joint party the FA Premier League want to protect their commercial interests. However, the wholesale nature of the disclosure has raised considerable concerns about the extraterritorial application of US law and data protection.Viacom's legal advisers have emphasised they have no intention of using the data to bring proceedings against end users. However, recent moves by other organisations against individual end users have left many sceptical about the value of such assurances. For example, the Recording Industry Association of America has controversially begun a process of suing individuals suspected of file-sharing. Among those who have had proceedings brought against them are university students and parents of children who have engaged in file-sharing. In the UK, Virgin Media has threatened to disconnect users suspected of illegal downloading.Google and Viacom have since agreed to anonymise the IP addresses and login details of all YouTube users. This is good news for data security in general, but the fact that the ruling happened in the first place is worrying, and leaves the door open for global media giants to get their hands on data that users have every right to expect to remain private. The protective order on which the parties originally agreed - and on which Viacom were relying to protect the interests of end users - was surprisingly ill-adapted to our modern information society. For example, it provided that the parties were bound not to use data received from the other parties that was designated 'confidential' or 'highly confidential' 'in any other litigation or contemplated litigation'. This, Viacom asserted, protected the interests of end users. True enough, but only if Google and YouTube went to the trouble of marking the documents and material containing such data in a conspicuous manner. The whole thing had a flavour of James Bond, with paper documents stamped with the words 'for your eyes only'. I suppose it was unsurprising given that the judge who made the order graduated from law school before the invention of the photocopier. Even though the data has been made anonymous, if the disclosure reveals significant infringing activity, Viacom might be able to seek further orders to exempt specific groups of data from the scope of the original order. This would allow it to add additional defendants to the action, which would mean that the second stage of proceedings might lead to the targeting of individual users.However, there is hope for individuals who fear that their own videos may be taken offline. A federal judge in San Jose refused to dismiss a case filed by a Pennsylvania woman after Universal Music Publishing forced YouTube to remove a video of her children dancing to Prince's 'Let's Go Crazy'. The fact that Universal took such action illustrates the extent to which the major content providers are prepared to go to pursue each and every suspected infringement. The response from the court gives hope that the tide may be turning in favour of a new, more moderate consensus.The copyright arena is changing, with content providers fighting an increasingly desperate rearguard action against patterns of behaviour that they see as infringing their existing rights, but which many consumers see as a legitimate exercise of creative freedom. The position is not dissimilar to that which existed at the end of the 18th century with regard to real property, when the widespread enclosure of previously 'common' land fuelled enormous conflict. Just as 18th-century land law has no place in the 21st century, copyright itself is now different to what it was in the past. The duration of copyright is now much longer - and further extensions are proposed - and content providers have sought to assert copyright protection over a much wider range of subject matter. The old rules on what constitutes infringement do not suit the easy copy-ing capabilities of today. As the framework changes, the system must catch up or lose out. nSusan Hill is an ICT and media partner at Cobbetts.

September 10, 2008 at 09:03 PM

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