A federal judge recently ordered Google to turn over to Viacom all of YouTube’s viewers’ records, which not only include every video ever watched but also YouTube viewer’s log-in names and IP addresses.  The judge also granted a motion for a protective order to safeguard Google’s search code, characterizing it as a trade secret.  The fact that Viacom sought this information has many up in arms and suggests that the company may be looking to track down and sue individual users.  This may be a result of the protections granted to sites like YouTube under the Digital Millennium Copyright Act (DMCA), which protects such sites from liability based on infringing user activity.  DMCA protection has been essential to the existence of sites like YouTube, which feature thousands of clips of copyrighted material.  But does this latest decision spell disaster for the company?

Until now, both Youtube and its users have posted with near impunity.  To comply with Federal law and remain under the protection of the DMCA, the only thing that websites have to do is take down infringing material.  If, however, information about those who post copyrighted material — and who are not protected by the DMCA — ends up in the hands of the content owners, the question becomes, what effect will this have on a site like YouTube?  More than likely, it will have a considerable chilling effect on potential posters, specifically those who seek to post copyrighted material, despite the fact that many are protected by the fair use doctrine.  Can YouTube survive without copyrighted content?  It has been rumored that YouTube employees often posted copyrighted material in an effort to bring attention to the site, which suggests that YouTube’s success is very much tied to the availability of copyrighted materials.  It may be that the very protection that allowed Youtube to thrive has focused the content owners’ attention on YouTube’s users, which will, in turn, disincentivize them to post copyrighted material and seriously damage the site’s popularity.

 

~Joshua Bohannon

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