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More Privacy Conundrums July 8th, 2008
Solveig Singleton
Viacom's suit against Google/YouTube for copyright infringement has opened another privacy can of worms. Most recently, the judge has ordered You Tube to turn over data on individual's video viewing.

The EFF has strenuously objected on privacy grounds, citing the Video Privacy Protection Act. Orin Kerr, posting on the Volokh Conspiracy, agrees on their legal analysis.

But in fact it is not clear that there is a violation of the Video Privacy Protection Act , because the details of the judge's order reportedly include protective measures the details of which have not been described in the coverage.

There are some deeper issues raised by this wrangle, however.

As a normative matter, it is a puzzle as to why the viewer's privacy rights ought to trump Viacom's rights. There seems to be no reason for it. Both are statutory rights. Viacom's have a constitutional basis. The viewer's arguably do not.

Privacy rights in the constitution limit the power of government, not private entities.

Imagine if instead of the plaintiff being Viacom, the plaintiff was a private person suing YouTube for privacy violations--say, a video had been posted that was taken surreptitiously through the window of a private room. Then it would be privacy versus privacy. Must the plaintiff always lose such a suit ironically in the name of privacy? No? Why would the analysis of copyright be any different? The answer to this rhetorical question is that copyright is different to people for whom the normative roots of copyright are questionable.

In other words, in a sense, the dispute is not really about privacy at all. It is about whether copyright ought to be practicably enforceable--and for some advocates, the answer is apparently, "no."

But there is a second deeper issue. What about the normative roots of the privacy rights in question? Are these, too, questionable? Yes. Very much so. Remember how the Video Privacy Protection Act came about. Judge Bork had been nominated to the Supreme Court. An enterprising reporter interviewed someone at the local video rental store and came up with some juicy details of his taste in videos. Legislators shuddered at the thought that someone might so expose *them*!  And so the law was passed. From one standpoint, a nice intrusion on free speech.

My take: By all means, question the breadth of discovery and the fishing expeditions invited by the court's rules of procedure. But do so consistently. There is no reason that discovery should be narrower in a copyright case than in any other case. And there is no reason to honor every legislative privacy fad as one would the Fourth Amendment.

Posted in  Technology  || 0 Comments »
Author: Solveig Singleton || Location: Washington, DC, USA

 

  
 
July 8th, 2008

More Privacy Conundrums

Posted in  Technology 
Author: Solveig Singleton || Location: Washington, DC, USA

Viacom's suit against Google/YouTube for copyright infringement has opened another privacy can of worms. Most recently, the judge has ordered You Tube to turn over data on individual's video viewing.

The EFF has strenuously objected on privacy grounds, citing the Video Privacy Protection Act. Orin Kerr, posting on the Volokh Conspiracy, agrees on their legal analysis.

But in fact it is not clear that there is a violation of the Video Privacy Protection Act , because the details of the judge's order reportedly include protective measures the details of which have not been described in the coverage.

There are some deeper issues raised by this wrangle, however.

As a normative matter, it is a puzzle as to why the viewer's privacy rights ought to trump Viacom's rights. There seems to be no reason for it. Both are statutory rights. Viacom's have a constitutional basis. The viewer's arguably do not.

Privacy rights in the constitution limit the power of government, not private entities.

Imagine if instead of the plaintiff being Viacom, the plaintiff was a private person suing YouTube for privacy violations--say, a video had been posted that was taken surreptitiously through the window of a private room. Then it would be privacy versus privacy. Must the plaintiff always lose such a suit ironically in the name of privacy? No? Why would the analysis of copyright be any different? The answer to this rhetorical question is that copyright is different to people for whom the normative roots of copyright are questionable.

In other words, in a sense, the dispute is not really about privacy at all. It is about whether copyright ought to be practicably enforceable--and for some advocates, the answer is apparently, "no."

But there is a second deeper issue. What about the normative roots of the privacy rights in question? Are these, too, questionable? Yes. Very much so. Remember how the Video Privacy Protection Act came about. Judge Bork had been nominated to the Supreme Court. An enterprising reporter interviewed someone at the local video rental store and came up with some juicy details of his taste in videos. Legislators shuddered at the thought that someone might so expose *them*!  And so the law was passed. From one standpoint, a nice intrusion on free speech.

My take: By all means, question the breadth of discovery and the fishing expeditions invited by the court's rules of procedure. But do so consistently. There is no reason that discovery should be narrower in a copyright case than in any other case. And there is no reason to honor every legislative privacy fad as one would the Fourth Amendment.