Thursday, January 22, 2009

Viacom v. YouTube: Viacom's anti-piracy agent BayTSP must produce boatloads of documents

The massive and massively important Viacom v. YouTube copyright case doesn't get much attention these days, but rest assured that armies of lawyers are plugging away, fighting over every scrap of information -- largely in electronic form -- that will help them prove their case (not to mention doing things like writing scintillating missives to the judge "Requesting that the Court reconsider its order granting Defendants leave to file a surreply in opposition to Plaintiffs' motion to compel." Denied!).

In that vein, there was an interesting recent opinion on a discovery issue that ensures those armies will have plenty to do for the foreseeable future. Here's what it's all about: to aid in its Internet anti-piracy efforts, Viacom has hired a Silicon Valley firm called BayTSP to locate unauthorized copies of its works on YouTube and handle the mechanics of demanding their removal. (See this very interesting Wall Street Journal article to get a good sense of what BayTSP does. Try searching here if you're stuck behind the WSJ pay-wall.) Not surprisingly, YouTube would like to get its hands on a lot of information in BayTSP's possession. Specifically, YouTube served a third-party subpoena on BayTSP, seeking (as summarized by Loeb & Loeb's excellent weekly case updates):
(1) All documents and communications concerning YouTube, including those reflecting use of YouTube by BayTSP and its clients, monitoring of YouTube by BayTSP and its clients, and comparisons of the responsiveness of YouTube to other online services;

(2) All documents and communications regarding BayTSP’s relationship with Viacom, including documents regarding copyrights Viacom claims to own and the litigations in New York;

(3) All documents and communications regarding the nature of BayTSP’s monitoring and identification processes, its training of monitors, and its effectiveness or lack thereof with respect to identification of allegedly infringing materials online.
Also unsurprisngly, BayTSP didn't want to part with this information or deal with the hassle and expense of compiling it, so there ensued a discovery fight in federal court in San Jose, near BayTSP's home (the main case is pending in New York).

On Jan. 14, a magistrate judge issued an order that appears to grant YouTube almost everything it wanted. As Loeb explains, the court found that the requested documents were relevant because they may:
(1) refute plaintiffs’ assertions that their burden for policing the website is too high; (2) [] show that BayTSP made errors when issuing DMCA takedown notices which undercuts plaintiffs’ argument that YouTube had constructive knowledge of ongoing infringement; and (3) [] refute plaintiffs’ claims that YouTube hinders content owners’ efforts to comply with the DMCA.
Interestingly, the court ordered BayTSP to produce not only documents related to Viacom and its affiliates, but also documents generated by BayTSP's work for other clients (identified as "HBO, Universal, Fox, and other entities") who are not parties to this litigation and I suspect are not thrilled about the prospect of documents they consider confidential being exposed to outsiders (despite the presence of a protective order).

While it's unclear exactly how many documents BayTSP will actually have to produce (and that the parties' lawyers themselves will have to review), it appears the total will run to several million pages.

As best I can tell from the scheduling order, no trial date has yet been set in this case. It's going to be a while.

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