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Google, Viacom now clashing over YouTube employee records

Viacom wants to know whether YouTube employees watched or uploaded pirated clips of TV shows or movies, CNET News has learned. The information could prove central to its lawsuit.

Update: at 9:05 p.m. PDT Saturday to include Viacom's response.

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.

As part of Viacom's $1 billion copyright suit against Google's YouTube, a federal judge ordered the video-sharing site two weeks ago to disclose records, such as IP addresses and usernames. Google was also supposed to turn over records that included the viewing and uploading histories of YouTube employees, according to the sources.

YouTube's employee information could prove crucial to Viacom's case against Google, as it could go a long way to proving how much knowledge YouTube has about piracy on the site.

Since the judge issued the order, Viacom has been widely criticized for attempting to encroach on the privacy of YouTube users. The parent company of MTV and Comedy Central has always said it never wanted personally identifiable information.

"Viacom suggested the initiative to anonymize the data, and we have been prepared to accept anonymous information since day one," said a Viacom spokesman.

Critics dispute that and point out that records show the judge in the case only ordered YouTube to hand over information asked for by Viacom. As for the employee records, Google said Saturday that it isn't willing to talk about anything else until that matter of user privacy is resolved.

"Viacom and other plaintiffs never should have demanded private viewing data in the first place," a Google spokesman said in an e-mail. "They should have agreed a week ago to let us anonymize it. We are willing to discuss the disclosure of viewing activity of all the relevant parties. But the simple issue of protecting user information should be resolved now. Our users' privacy should not be held hostage to advance the plaintiffs' additional litigation interests."

According to the sources, Google and Viacom were close to reaching a deal last week about masking user data when Google backed out.

YouTube graphic

Google balked over the issue of turning over information that would include data about videos employees watched or uploaded to YouTube, according to the sources. If Chad Hurley, one of YouTube's co-founders, uploaded a copyright video or viewed them, Viacom's lawyers believe they have a right to know about it, the sources said.

Google may have a tougher time with this issue than the fight to protect user information. Companies sue each other all the time and frequently turn over computer records belonging to employees when pertinent. Often, these records reveal e-mails, memos, and other documents that can shed light on events in question.

YouTube's employee information could prove crucial to Viacom's case against Google, as it could go a long way to proving how much knowledge YouTube has about piracy on the site. If YouTube employees knew what was uploaded to the site--or posted pirated clips themselves--YouTube could lose its protection under the Digital Millennium Copyright Act.

YouTube maintains that the video-sharing site is an Internet service provider and is protected by the DMCA's Safe Harbor provision, which removes liability from ISPs for illegal acts committed by users. But the DMCA requires that ISPs not have knowledge of the illegal acts or not be able to prevent them.

YouTube has always argued that it has no way to prevent users from uploading unauthorized copies of TV shows, movies, or other copyrighted material, and adheres to the DMCA by also removing infringing videos when notified by a copyright owner.

It's safe to say that many copyright owners are skeptical of these claims. For years, rumors have circulated in the technology sector that some of YouTube employees salted the site, especially in its early days, by posting clips from popular TV shows in order to bring attention to the site. No evidence of this has ever surfaced.

Google has been accused of encouraging massive copyright violations by Viacom and by a group of copyright holders represented by the Proskauer Rose law firm. The group includes the top soccer leagues in Britain and France, and U.S. television journalist Robert Tur.