Internet Defamation Law Blog

New York Court Rejects Disclosure of Anonymous Blog Poster

New York Caselaw: The New York County Supreme Court in Greenbaum v. Google, Inc., held that an elected member of a school board was not entitled to discover the identity of an anonymous blog poster who posted derogatory comments about the board member, calling her a “bigot” and an “anti-semite.” However, the Court did not focus upon the legal issue of whether it was appropriate to order disclosure of the anonymous speaker’s information; instead, it noted that since it did not believe that the comments rose to the level of defamation, there was no need to reach the issue of whether disclosure of the poster’s identity should be revealed.

It first commented that an appellate court in New York had not yet developed a standard that would govern the disclosure of the names of anonymous bloggers. The Court indicated that an anonymous Internet speaker must be given an opportunity to be heard in court and that those parties bringing a lawsuit must identify the actual statements that they believed to be defamatory. Notably, when a court gives an anonymous poster the opportunity to be heard, it will generally take steps to ensure that the speaker’s identity remains anonymous until it renders a decision as to whether the disclosure of the identity of that poster is lawful. Otherwise, an anonymous poster might be afraid to post speech that is protected by the First Amendment for fear that a court would give any litigant his name. Courts generally strive to not chill speech in this manner.

After examining the speech at issue, the Greenbaum Court found that it did not need to further articulate a standard for disclosing the identity of an anonymous internet poster because the posted comments were not defamatory. As such, the case could be dismissed without the speaker’s identity being revealed.

This case emphasizes the need to have a legitimate defamation claim prior to filing an action alleging defamation. Obtaining a speaker’s identity can be difficult and time-consuming. The courts will not generally readily demand the disclosure of speakers’ information. Accordingly, it emphasizes the importance of reviewing the speech at issue to be sure that it is such that it is likely to result in a viable claim.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

U.S. District Court Orders Google to Turn Over YouTube User Records in Viacom Suit

New York Caselaw: The demands on Google to release user information extend to yet another level. The United States District Court for the Southern District of New York has ordered Google to turn over to Viacom its records of which users watched which videos on YouTube, now owned by Google. The order, issued by Judge Louis Stanton, comes in the midst of Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube.

The suit, initially filed by Viacom back in March 2008, alleges that Google and YouTube engaged in massive intentional copyright infringement by posting nearly 160,000 unauthorized clips of entertainment programming owned by Viacom and by failing to prevent its users from posting infringing materials to the YouTube site. Google has maintained that it is shielded from liability under the safe harbor provision of the Digital Millennium Copyright Act of 1998. The immunity set forth therein lets Internet service providers (ISPs) off the hook for infringing activities of users. But, this immunity only applies if the ISPs adhere to several requirements and promptly remove any allegedly infringing material upon notification of the alleged infringement from the copyright owner.

Although Judge Stanton’s order limits the information that must be produced, it does direct the Google to turn over as evidence a database containing the usernames and IP addresses of YouTube viewers, along with an accounting of what videos they watched and at what time. Viacom asserts that it needs the information to demonstrate video piracy patterns in order to build its infringement case against the defendants.

Viacom, along with other large networks, film production companies and even sports leagues, is undertaking immense efforts to ensure that their copyrighted productions are not being released and made viewable on YouTube. Nonetheless, the order is certainly a cause for concern among YouTube users that the personally identifiable information they provide in registering with the site will fail to remain secure. There is also an argument that order violates the Video Privacy Protection Act, a federal law passed in 1998 to prevent “wrongful disclosure of video tape rental or sale records.” However, that law remains generally untested as it applies to the Internet.

Notably, the order also provides that Google does not have to turn over its computer source code which controls the YouTube.com search function and Google’s Internet search tool Google.com. The judge agreed that such information is Google’s trade secret, stating that “[a] plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.”

This case raises many questions that could turn copyright and Internet law on its head: (1) can an ISP be liable for infringement despite the Digital Millennium Act; (2) can personal records be released; (3) given that the records relate to videos, does that the disclosure of user information violate the Video Privacy Protection Act; and (4) can there be liability for creating software that favors infringing content? It will certainly be interesting to see how this unfolds.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com