Free Association: Who Owns Your Privacy?

By Larisa Mann, July 25, 2008

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Viacom lawsuit with YouTube pits business interests against public interests.

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Last year, media giant Viacom sued Googe-owned YouTube over copyright infringement. At issue were the over 160,000 clips of Viacom-owned programs such as South Park and The Daily Show available on YouTube. Viacom argued that by failing to remove copyrighted clips or prevent them from being posted, YouTube was responsible for copyright infringement.

The Digital Millennium Copyright Act (DMCA) protects content providers from copyright infringement lawsuits -- if they qualify for protections. The "notice and takedown" provision provides the most protection, requiring websites to remove copyrighted material only after being notified of an infringement. The legal sticking points are in the specifics: How effective do websites have to be in meeting these requirements, and how much copyrighted content can be present before a website is found to be failing in its duty?

The issue could be settled if Viacom licensed its shows to YouTube in exchange for attaching Viacom-related advertisements, a share of YouTube's revenue, or another profit-sharing agreement. Viacom's push to take the case to the courts rather than pursue an alternative business model suggests a shortsighted approach to media access. A recent Economist article pointed out Viacom's resistance to digital-era realities, noting that "[these] sites could be an effective way to promote the wares of traditional broadcasters." In other words, allowing unrestricted posting could be good for business.

But this is about more than business.

Millions of people use YouTube and sites like it to engage with music, videos, and other culture. Should we allow private agreements between corporations to define our rights to access culture?

While it's true that Google-owned YouTube has, until now, made its fortune by enabling more people to creatively interact through criticism, commentary, imitation, repetition, mockery, fandom, and mash-ups, it's still run as a business, not a public service. Viacom's billion-dollar lawsuit seems intent on impacting YouTube's financial gains. These profit motives are not likely to line up with the public interest.

Culture, Not Commodity

YouTube's problem is copyright lawsuits; Viacom's is a lack of product control and an outdated fixation on restricting use as a means to profit. The conflict highlights the meaning of cultural participation in spaces owned by corporations.

Media is more than products, it draws on common culture and it becomes part of it as well. This is why our legal system has protected criticism, education, parody, commentary and other uses of copyrighted material against copyright owners. If a use is found "fair" it does not require a license and is free regardless of copyright owners' wishes. Fair use is part of our legal system and enforced by courts.

But if YouTube were to solve its problems through licensing, paying all copyright owners for even the fair uses on their site, then unlicensed uses look more like competition with the ones that generate a profit for copyright owners. This means judges may be more hostile to seeing unlicensed uses as fair. The same is true for the First Amendment's protection of cultural engagement. If a licensing business exists, smaller non-YouTube sites that can't afford to license may be at risk of lawsuit.

Our legal system has never been good at recognizing the difference between individual rights and corporations' rights. If a huge corporation can license, a community organizer may be expected to as well. While we can hope that big media companies would choose not to sue individuals or nonprofits, the RIAA and MPAA's battles against middle-schoolers and grandfathers, or the AP's recent attempt to charge for quotations don't give me a lot of confidence. If we leave access to culture up to corporations they may simply parcel out our rights to the highest bidder.

Privacy Takes A Hit

Viacom and YouTube are currently bargaining over more than culture; they're bargaining over privacy. Recently, a judge supported [PDF] Viacom's demand for YouTube to disclose data about all users who have viewed videos on YouTube. Many observers immediately pointed out that this handover violates privacy and may be a easy way for Viacom to slap individuals with copyright violations.

While a court order limiting the use of the information has been issued, concern remains about the possible broader use of the data. Such use could violate a number of laws: For example, our right to read or watch anonymously without the government "standing over your shoulder" is protected by the First Amendment. Similarly, the Video Privacy Protection Act specifically says that information about what videos you access can only be shared under narrow circumstances.

Viacom has responded that they will not pursue individual users, and will voluntarily keep user data private. This dodges the larger concerns about YouTube being forced to hand over the data over in the first place. Similarly, it doesn't address concerns about treating such data as a privately owned commodity.

Once again, we must trust the goodwill of a business to manage our privacy.

In an age when our every act online is tied to branding, marketing and advertisements, privacy may seem like a lost cause. But many of us still need information that we share in one context to be private in another. Imagine a gay/lesbian/bisexual/transgender kid in a small town whose community doesn't understand or support their sexual identity -- information about that kid's searches and page views could put them at real risk of physical harm. What about searches regarding health questions? Who decides what rights your parents, your school or your insurance company have to access to that data?

Both privacy and culture are the hottest commodities in the information age. From "content management" to "data mining," corporations are scrambling to make use of the information our digital lives are generating. But we shouldn't forget that we are more than the sum of that information. Treating cultural information solely as a commodity will harm social values important to communities in America and around the world.

Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and djs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.