Viacom v. YouTube

Citation
Viacom Int'l, Inc. v. YouTube, Inc.,253 F.R.D. 256 (S.D.N.Y. 2008).

Trial Court Proceedings
The court had to determine whether access to YouTube videos was governed by the SCA. There, Viacom claimed that videos posted on Google’s video-sharing website YouTube violated federal copyright law. Viacom requested certain videos from Google as part of its discovery requests. The court first concluded, with little discussion, that Google was an RCS provider under the SCA.

It then moved on to the question of whether the SCA permitted such disclosure. Viacom argued that users who posted videos on YouTube have authorized disclosure of those videos under §2702(b)(3), which allows the provider to “divulge the contents of a communication. . . with the lawful consent of. . . the subscriber.”

The court rejected this argument, observing that, although YouTube’s Terms of Use and Privacy Policy provides a disclaimer that any video posted in the public areas of the site may be divulged, none of the provisions in that user agreement “can be fairly construed as a grant of permission from users to reveal to plaintiffs the videos they have designated as private and chosen to share only with specified recipients.”

Thus, the court held the SCA did not permit Viacom access to those videos that had been marked private by the user who posted them.

The court, however, permitted Viacom access to non-content data such as “the number of times each video has been viewed on YouTube.com or made accessible on a third-party website through an ‘embedded’ link to the video.”