Google, the search company that uncovers much of the world's information for its customers, is embroiled in a fight to keep information about itself under wraps for at least a while longer.
The owner of YouTube, which is defending itself against a $1 billion copyright lawsuit filed by entertainment giant Viacom, has asked a federal court to keep documents filed in the case under seal for another three months.
On Friday, Viacom and Google filed for summary judgment, claiming that there's enough undisputed evidence for the judge to rule in each party's favor. Supporting documents were also filed. U.S. District Judge Louis Stanton is expected to rule on when the documents are to be unsealed within the next few days.
For three years now, Google and Viacom have exchanged hundreds of thousands of pages of deposition transcripts, e-mails, and other data during a lengthy discovery process. Most of the information has been kept under seal, thanks to a protective order, which was negotiated and agreed to by both sides. Now, Viacom wants to unseal all but the most sensitive of trade secrets within two weeks and Google wants to wait until June 4. Google says it would be a "logistical nightmare" to release information piecemeal before the sides finish arguing their cases.
Courts typically prefer to keep records open to the public, but there are exceptions, most often in criminal or civil cases involving national security. In civil suits, some material can be kept under seal in order to protect trade secrets. What's not clear is why the material in the Viacom vs. Google case is under seal.
Initially, both Google and Viacom agreed to a protective order, which barred public access to many documents in the case. Why has Viacom suddenly changed its mind? In the filings from Friday, Viacom said it believes the law strictly requires that summary motion papers be unsealed. Some legal experts agree.
"YouTube (which is owned by Google) is probably right that its proposed procedure (of releasing documents) would be more efficient for the parties and the court. But so what?" wrote Ben Sheffner, an entertainment lawyer, who blogs about online copyright issues. "The common law and First Amendment right of access to court documents exists for the public--not the parties or the court."
Sheffner argues that the law on this point "could not be clearer." The public has an "immediate" right of access to documents once they are filed for summary judgment, he wrote. In documents filed Friday, Google said that the question of waiting to file documents until it makes sense to disclose has never been addressed by the courts--in other words, Google believes it's up to Stanton to decide.
In papers Viacom filed on Friday--that weren't under seal--the parent company of MTV and Paramount Pictures provided a brief and general outline of points its lawyers plan to cover during arguments before Stanton over the next three months.
Viacom plans to discuss what YouTube's policies and practices were regarding copyright and piracy before Google acquired the Web's largest video-sharing site in October 2006; the financial benefit realized by Google and YouTube from "illegal clips;" and YouTube and Google's ability to "help clean up the site of pirated clips."
Viacom also said its case will cover "the extent to which YouTube engaged in infringing activities and practices beyond the storage and display of uploaded clips."
It's not entirely clear to what activities Viacom is referring. A Viacom spokesman declined to comment. Last fall, sources close to the case told CNET that Viacom had found information that indicated YouTube employees uploaded copyrighted materials and that managers there knew about it and chose not to remove the infringing content. Google said at the time that the characterizations of the evidence were "wrong, misleading, or lack important context."
On the other hand, Google said in court papers last year that it has information that shows Viacom employees uploaded videos to YouTube and Viacom managers allowed them to remain on the site for "promotional and business reasons."
In October, CNET published some of the deposition that Google CEO Eric Schmidt gave Viacom lawyers. As he was questioned by Viacom attorneys, Schmidt said Google paid a $1 billion premium for YouTube because the company was hot property and wanted to make sure it outbid competitors.
More recently, sources told CNET that Viacom also possesses documents that show David Eun, who oversaw Google's content partnerships until leaving for AOL last month, strongly recommended in 2006 that Google's leadership not acquire YouTube. According to the sources, Eun believed YouTube was too great a legal liability. Eun, through an AOL spokeswoman, declined to comment.
If all this occurred and if YouTube employees uploaded copyrighted films, music, or television shows, such revelations may prove embarrassing for Google and could be a blow to the company's legal defense.