BROOKE GLADSTONE:
This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD:
And I'm Bob Garfield. YouTube users are angry with Viacom. And you know what happens when YouTube users get mad.
[CLIP]
WOMAN:
Hello, YouTube. Apparently Viacom now, according to some judge somewhere, has all of our user names and IP addresses so that they can track if we're watching their copyrighted crap.
[END CLIP]
BOB GARFIELD:
Last week, a judge ordered YouTube, a subsidiary of Google, to pass along information about who has watched which YouTube videos, when, and how often. Viacom is looking for evidence to show that YouTube users are downloading clips of Viacom’s properties.

However, anyone concerned with privacy thinks the ruling goes too far in infringing upon the privacy rights of YouTube users, rights outlined in the Video Privacy Protection Act.

Peter Kafka writes for The Silicon Alley Insider, and he joins me now. Peter, welcome back to the show.
PETER KAFKA:
Thanks for having me.
BOB GARFIELD:
Now, Viacom wants the information not to know what I, Bob Garfield, am looking at, but to prove that the preponderance of YouTube downloads are for copyrighted material, like its own — The Daily Show, for instance. Do we have any idea what percentage of YouTube videos are copyrighted versus user generated stuff?
PETER KAFKA:
No one except for YouTube really has any idea. YouTube also insists that it doesn't really have any idea because it doesn't actually monitor what it puts up there. And a lot of folks think that’s actually hard to believe, because if you'll go on YouTube, you'll find there’s almost no porn on there. And go to a website where there’s almost no porn — I mean, people are uploading stuff — someone has to be monitoring that.

A great article in The Wall Street Journal this week pointed out that YouTube is only selling ads on four percent of all of its videos. It’s worried that there’s possible copyright infringement on 96 percent of all of its videos. So you can get a sense that there’s a whole lot of stuff on YouTube that probably violates some kind of copyright protection law.

They say that they are protected by the DMCA, the Digital Millennium Copyright Act, which basically says if people are uploading stuff to your service but you’re not actually filtering it or looking at it yourself, you’re not responsible for any copyright violations. Yeah, they sort of repeat this over and over, like zombies.

And Viacom says, no, you clearly know what’s going on there and you’re profiting from this, and so this won't work. This is sort of the same debate that we had ten years ago or so with Napster, and Napster lost that case in the end.
BOB GARFIELD:
Now, one of the issues in this case is to what degree YouTube is protected by the Video Privacy Protection Act. Tell me how that law fits into this case.
PETER KAFKA:
The Video Privacy Protection Act is actually also known as, I think, the Bork Law. If you remember from way back in the '80s during the Bork Supreme Court nominations, someone dug up, I believe, his Blockbuster Video rental history.

So, in theory, you’re not supposed to be able to distribute someone’s video watching records. I don't really think this is going to come into play. Both YouTube and Viacom are going out of their way to actually not present any identifiable information.
BOB GARFIELD:
So in the absence of any identifiable information, why are the privacy hawks so nervous?
PETER KAFKA:
Technically, could someone dig up someone’s IP address and their user name and eventually track down and figure out that someone’s been watching a dog on a skateboard video? Yeah. But that’s not what Viacom wants to do here.

Initially, there was sort of a wave of Viacom’s a baddy, because you hear a lot of Viacom’s a baddy on the tech blogs. But then folks sort of thought for a day and said, wait a minute, why is actually Google and YouTube keeping records of everyone’s viewing habits dating back to the start of this service?

And I haven't really heard a good explanation for why that exists. I mean, the most obvious one is it helps them eventually figure out better ways to serve ads on the site.
BOB GARFIELD:
Now, you have said that there could be a wild card in this case, and that is Sumner Redstone, the chairman of Viacom. How does he figure in?
PETER KAFKA:
Well, Sumner Redstone runs the company. It’s technically a public company but it’s very much his fiefdom. And Sumner could one day wake up and say, you know what? I choose to settle this case. And he’s very erratic. Basically you don't really know what a billionaire in his eighties, who likes to shave himself nude in his bathtub in Beverly Hills, is going to do from day to day. So that’s a wild card.
BOB GARFIELD:
[LAUGHS] Well, you raise an interesting question — settling. I suppose some people would like to see this case not settled but for it to go to court so that a precedent is established and some guidelines finally put on the table. Who’s rooting for a judge’s decision and who’s rooting for settlement?
PETER KAFKA:
I don't think it breaks down along a clear line. I mean, I've talked to folks who are both sort of Webby folks and I've talked to folks who are content folks, and it doesn't split equally. You know, some of them would love to have a bright line drawn here that says this is what you’re allowed to do. It would save them a lot of legal fees.

And a lot of them say, look, this is an evolving, breathing thing. You'd hate to have some kind of law that we're going to have to be dealing with five years from now when technology and use are completely different than they are now. Let's sort of settle this on a one to one basis.
BOB GARFIELD:
Okay, Peter. Thank you very much.
PETER KAFKA:
Thanks for having me.
BOB GARFIELD:
Peter Kafka writes for The Silicon Alley Insider.