Broadband

In the same week that BBC Radio One and the Guardian put out an appeal to hear from UK web users who had received a letter from Virgin Media warning of illegal file downloading on their account (with tips on how to avoid it), the American courts took a far more draconian stance on privacy.

As part of the billion dollar copyright infringement court case brought against YouTube by Viacom (owner of MTV and Paramount), the Google-owned video site has been ordered to hand over web logs giving details of millions upon millions of uploads and downloads. The many terabytes worth of data is thought to contain the site’s entire traffic, allowing Viacom to drill in to the data to establish the extent of unauthorised uploads and downloads of its copyrighted material.

YouTube’s senior counsellor working on the case is said to have been “disappointed” at the ruling and is hoping Viacom lawyers will agree to an appeal by the video site that the data can first be anonymised before being handed over.

A Viacom spokesperson pointed out that the data will only be viewed by Viacom’s lawyers and the necessary experts required to interrogate the database to find out the extent of unauthorised activity. It will not be viewed by Viacom executives, the spokesperson assured.

Even so, Kurt Opsahl, a lawyer for the online civil rights group, Electronic Frontier Foundation, summed up the ruling as a “setback to privacy rights”.

The US District judge ruling on the case labelled privacy concerns as “speculative” claiming that a third party knowing an IP address does not necessarily identify a person.

However, parallels are already being made between the AOL case of 2006 where it released so-called anonymous data on its users’ search patterns. Experts were soon able to identify people by their combination of searches and AOL was left embarrassed and several key executives were dismissed.

The ruling is in stark contrast to the stance taken in the UK where the music industry’s push to get ISPs to adopt a ‘three strikes and out’ policy has not been well received. The BPI, which believes copyright infringers should be warned, suspended and then cut off if they continue to download files, has only received the partial support of Virgin Media.

It has sent out 800 letters over the past 10 weeks to inform subscribers whose accounts have shown up as having downloaded copyrighted material without permission. The letters state that the subscriber is not being directly accused and it could be somebody else in the household, or beyond, if they have an unprotected wireless router.

The letters are triggered by the BPI detecting IP addresses that have been used for unauthorised downloads and passing them on to Virgin which then detects which belong to its customers. Those affected receive a letter. Virgin never knows what the subscriber is accused of downloading and the BPI never knows the identity of the Virgin Media subscriber.

In direct contrast, the American ruling will leave YouTube pleading next week to have the data it is due to hand over to Viacom anonymised to save face and reassure its users their viewing habits have not been handed over in a manner which makes them personally identifiable.

As is stands, Susan Hall, ICT and media partner at law firm Cobbetts believes the order surrounding disclosure of YouTube logs to Viacom leaves much to be desired.

“Viacom legal advisors have emphasised that they have no intention of using the data to bring proceedings against end-users,” she confirms.

“However, the protective order which the parties have agreed and which Viacom are relying on as protecting the interests of end users is surprisingly ill-adapted to the estimated 12 terrabytes of data which is expected to be revealed under the order.

“For example, the order provides that the parties are bound not to use data received from the other parties and which is designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” “in any other litigation or contemplated litigation”. This, Viacom asserts, protects the interests of end-users, but only if YouTube goes to the trouble of marking the documents or material containing such data “in a conspicuous manner”. This has a flavour of paper documents stamped “For Your Eyes Only” in proper James Bond fashion - hardly surprising from a Judge who graduated from law school before the invention of the photocopier, but oddly out of tune with the information society.”

Tags: AOL, BBC, Google, Guardian, Viacom, Virgin Media, You Tube