Complex litigation is a matter of degree. A matter can be complex because of the number of parties (e.g., construction defect cases), procedural intricacies (e.g., class actions) or the novelty of legal issues involved. But sometimes a matter becomes complex just because two juggernauts are litigating over stakes so large that everything in their litigation is larger than life - litigation on steroids.
The complex nature of an action isn't always self-evident; however, one occasionally encounters a lawsuit where the briefest summary of the action is enough to indicate that the matter will probably be complex:
“Plaintiffs in these related lawsuits (the “Viacom action” and the “Premier League class action”) claim to own the copyrights in specified television programs, motion pictures, music recordings, and other entertainment programs. They allege violations of the Copyright Act of 1976 (17 U.S.C. § 101 et seq.) by defendants YouTube and Google Inc., who own and operate the video-sharing website known as “YouTube.com”.
(Slip op., at pp. 1-2, footnote omitted.) In the Viacom action, the Plaintiffs moved to compel Google (and its business YouTube) to produce electronic information that shocks the conscience in its scope and grandeur:
“Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel YouTube and Google to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”.
(Slip op., at p. 4.) In addition to requesting Google's heart on a platter (its search code), which, according to submitted evidence "is the product of over a thousand person-years of work," the Viacom Plaintiffs sought other, highly confidential trade secret information from Google, including:
- The computer source code for a newly invented “Video ID” program wherein copyright owners to furnish YouTube with video reference samples from which YouTube can use its proprietary search code to locate video clips in its library that have characteristics sufficiently matching those of the samples as to suggest infringement.
- Copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason.
- The “User” and “Mono” databases that contain information about each video available in YouTube’s collection, including its user-supplied title and keywords, public comments from others about it, whether it has been flagged as inappropriate by others (for copyright infringement or for other improprieties such as obscenity) and the reason it was flagged, whether an administrative action was taken in response to a complaint about it, whether the user who posted it was terminated for copyright infringement, and the username of the user who posted it.
- The schemas for the “Google Advertising” and “Google Video Content” databases. (A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data.
- Copies of all videos designated as private by YouTube users.
- And, perhaps most significantly, Defendants’ “Logging” database, that contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.
The Court granted significant portions of the motion to compel:
“(1) The cross-motion for a protective order barring disclosure of the source code for the YouTube.com search function is granted, and the motion to compel production of that search code is denied;
(2) The motion to compel production of the source code for the Video ID program is denied;
(3) The motion to compel production of all removed videos is granted;
(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted;
(5) The motion to compel production of those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied;
(6) The motion to compel production of the schema for the Google Advertising database is denied;
(7) The motion to compel production of the schema for the Google Video Content database is granted; and
(8) The motion to compel production of the private videos and data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.
(Slip op., at pp. 24-25.)
Privacy concerns have been front and center since the issuance of the Order. (See, e.g., Rob Pegoraro, Court Invites Viacom to Violate YouTube Users' Privacy (July 7, 2008) www.washingtonpost.com; Kenneth Li and Eric Auchard, Court order on YouTube user data fans privacy fears (July 4, 2008) www.reuters.com.) In theory, data about IP addresses would allow a reconstruction of the history of video viewing at each computer on the Internet. In practice this would be more difficult in many (but not all) instances, since most Internet users have dynamic IP addresses (IP addresses that change), at least at home.
Complex? Undoubtedly. Any discovery Order that requires the production of terabytes of data is sufficient to define an action as complex. But Google isn't known to be bashful, so the fireworks may have just begun.
The full Order is embedded below:
You can also download the Order directly.