Google balks at providing YouTube records of employees

CNet reports on what may be the stumbling block in Google and Viacom’s failure to reach an agreement regarding YouTube user data (which I’ve blogged on here and here):

Viacom wants to know which videos YouTube employees have watched and uploaded to the site, and Google is refusing to provide that information, CNET News has learned.

This dispute is the reason the two companies, and lawyers representing a group of other copyright holders suing Google, have failed to reach a final agreement on anonymizing personal information belonging to YouTube users, according to two sources close to the situation.

From a discovery standpoint, I’m not sure what Google’s rationale might be for refusing to hand over employee data.  If anything, as the CNet article points out, employee data might be highly relevant to Viacom’s claims and detrimental to Google’s DMCA safe harbor defense.  What did the employees do?  Did they upload infringing videos?  Did they have actual knowledge of infringement?

In any case, this underscores why it’s a bad idea to leave privacy protections to those who profit from gathering our data.  It also makes Google seem to be more protective of its employees than of the public.  As TechCrunch put it today:

Google’s self imposed code of conduct is “Don’t be evil.”  It doesn’t say “don’t be evil unless there’s important litigation at stake.”  Google’s reputation is on the line, and how they respond will show their true character.  They’ve shown they’ll go to bat for employees, now it’s time for them to show they’ll go to bat for their users.

Hat tip: Gigalaw.

Another Civil Procedure limerick

I’ve written previously about judges using limericks in their opinions.  Here’s another.  The ABA Journal notes that U.S. District Judge Ronald B. Leighton found a plaintiff’s 465-page complaint to violate Federal Rule of Civil Procedure 8(a)‘s requirement that a complaint contain “a short and plain statement” of the plaintiff’s claim.  Noting Lord Polonius’ line in Hamlet that brevity is the soul of wit,” Judge Leighton stated that “[b]revity is also the soul of a pleading.”  He concluded with a limerick:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Hat tip to my St. Thomas colleague Fred Light for sending this to me.

Why does Google keep so much information?

Yesterday, I wrote about the “privacy paradox” and Google’s refusal to post a conspicuous link to its privacy policy on its homepage.   Today, the New York Times reports that the judge overseeing the Viacom/YouTube copyright lawsuit has ordered Google to turn over a database linking YouTube users to every video clip they have watched on the site:

The order raised concerns among users and privacy advocates that the online video viewing habits of hundreds tens of millions of people could be exposed.  But Google and Viacom said they were working to hoping to come up with a way to protect the anonymity of YouTube viewers., and

Viacom said that the information would be safeguarded by a protective order restricting access to the data to outside advisors, who will use it solely to press Viacom’s $1 billion copyright suit against Google.

It’s good that some steps are being taken to limit the use of the information.  But why is Google collecting and retaining so much information? Maybe there’s business value in keeping it, but there’s also business value in not angering hundreds tens of millions of users.  Google’s apparent taste for data retention risks a well-deserved loss of goodwill.  (Or considering people’s wayward attitudes towards privacy, perhaps not.)  I recognize that some information must be retained for a variety of reasons.  But the more unnecessary information you keep, the more likely somebody you didn’t envision — a wayward employee, a hacker, or even worse, an adverse litigant — will find a use for it you didn’t want.

The court’s order can be found here.

ADDENDUM: The Times has revised the text of the quoted portion of the article from when I viewed it earlier.  I’ve indicated appropriate changes above.

NOTE (JULY 13): See here for updates.

A Civil Procedure limerick

Continuing this week’s Civil Procedure and golf themes, a judge from the Eastern District of Pennsylvania dismissed a third-party complaint because it was filed by the defendants too late and without court permission.  Federal Rule of Civil Procedure 14 states that a defending party filing a third-party complaint “must, by motion, obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer.”  Here, the defendants filed their third-party complaint more than five months after they answered, and without first seeking leave of court.

The defendants’ names? Limerick Golf Club, Inc. and Limerick Golf Club Estates, Inc. (collectively, “Limerick”).  Concluding that Limerick didn’t justify the late filing, Judge Berle M. Schiller dismissed their third-party complaint.  Stating that Limerick’s “sub-par performance occurred in the pleading stage of this case and not on the golf course,” the court closed with a rhyme:

With arguments hard to resist,
The movant correctly insists,
His joinder was tardy,
And so the third party
Complaint is hereby dismissed.

Hat tip to Law.com for the story and where you can find additional details on the suit.  Court’s opinion here.

Selyaisms and The Federal Rules of Gallimaufry

In legal circles, Senior First Circuit Judge Bruce M. Selya is well-known for the broad and arcane vocabulary that he uses in his opinions, branded by many as “Selyaisms.”  Legal Blog Watch notes that in the late 1980’s, one of Selya’s clerks had a word-a-day calendar and that he and his co-clerks “tried to see who could successfully plant the day’s word in a published Selya opinion.”

In a copyright opinion issued last Friday, Judge Selya opined that a party’s counterclaims “assert[ed] copyright infringement and a gallimaufry of other federal and state-law causes of action. ” (Emphasis added.)

Gallimaufry.  Merriam-Webster Online states that it’s of Middle French origin and means “hodgepodge.”  In the context of pleading, what a wonderful word.  Of course, the Federal Rules of Civil Procedure were intended to permit liberal joinder of claims and defenses. Thus, the Rules (such as Rules 8 and 18) were designed with hodgepodgery in mind, subject to limits such as those in Rule 11. Thus, to an extent, the Federal Rules of Civil Procedure are Federal Rules of Gallimaufry.