Add Viacom to the List of Google Discovery Victims

Three separate judges recently remarked on Google’s failure to preserve and produce documents relevant to antitrust claims against Google.  (More here.)  In response, critics asked the State Bar of California to investigate Google General Counsel Kent Walker for violating the California Professional Code of Conduct in counseling Google to destroy records to multiple ongoing lawsuits, including his 2008 memo instructing employees to “avoid inadvertent retention” of communications that might be “used against” Google in litigation.

From the timeline, one might think Google’s document preservation practices were perfect until the recent matters.  Note memo written in 2008 versus litigation in 2023-2024 questioning document retention.  If there were no discovery grievances during that fifteen-year period, maybe this is the first time Google failed to conduct itself properly during discovery – or at least the first time anyone figured out the problem and called Google out on it.  If so, maybe this is genuinely some kind of mistake, and maybe the sanction on Google should be correspondingly reduced.

Not so.  I have been following Google litigation for longer than most.  When I read the recent briefs and decisions about Google’s failure to preserve documents, I immediately thought of a different episode, a decade and a half ago, when Google failed to preserve documents relating to YouTube despite knowing about likely litigation.

Google’s failure to preserve documents relating to copyright infringement at YouTube

When Google considered acquiring YouTube, copyright concerns loomed large.  Analyzing a sample of videos from YouTube, Credit Suisse bankers found that more than 60% of YouTube video views were “premium” (their euphemism for copyright), and only 10% of those were licensed.  In this period, YouTube faced competition from, among others, Google Video—which took genuine steps to protect copyright.  Seeing YouTube traffic soar while they struggled, Google Video staff were unsparing in their criticism of YouTube’s approach to copyright, calling YouTube, “a rogue enabler of content theft” “completely sustained by pirated content” “trafficking mostly illegal content”.  (See also Google’s slides about copyright risks and rights-holder criticism.)  Concerned about a “precedent-setting lawsuit” about copyright, Google held back a 12.5% escrow from the YouTube acquisition price to cover possible copyright liability.  With Google’s own staff explicitly criticizing YouTube’s approach to copyright, and Google’s term sheet discussing copyright risks, copyright litigation was not just foreseeable; it was actually foreseen, then measured and priced.

Under longstanding law, when litigation is reasonably foreseeable, a party is obliged to preserve documents for use as evidence.  (See e.g. Silvestri v. General Motors, 271 F.3d 583, 590.)  From the start, copyright infringement at YouTube was far beyond that modest standard.  So from the first moment Google began to consider acquiring YouTube, Google should have preserved all relevant documents.  Certainly when the acquisition was completed, with copyright concerns still looming large and threats from rights-holders ongoing, Google was obliged to preserve.

Rather than preserve documents relating to copyright infringement at YouTube, Google did much the opposite.  The most brazen missing emails are those sent and received by then-CEO Eric Schmidt.  In a May 6, 2009 deposition, Schmidt indicated having about 30 computers (page 7 line 10) but configuring them “to not retain my e-mails unless asked specifically” (17:9-10).  Asked whether he deleted them manually versus through some sort of automation, Schmidt said “the answer would vary” (18:17-18).  He said he would “delete or otherwise cause the emails that I had read to go way as quickly as possible” (18:24 to 19:2).  Asked whether he began to preserve documents after a copyright lawsuit was filed alleging widespread infringement at YouTube, Schmidt said “I did change my practice after this lawsuit was filed and I was notified” but refused to reveal details which he indicated were attorney-client privileged.  Despite the possible change to Schmidt’s retention practice after the Viacom case was filed, searching his email for responsive documents yielded only 19.  (Hohengarten declaration ¶266)  Google’s acquisition of YouTube was its largest transaction to date.  It is inconceivable that the CEO of Google would have just 19 emails pertaining to its largest acquisition.  By his own admission, Schmidt “deleted or otherwise cause[d]” to be deleted the huge number of otherwise-responsive emails.  Thousands?  Tens of thousands?  Meanwhile, if he changed his document retention practice after the lawsuit was filed, why aren’t there more documents from that period?  He wouldn’t say, and it seems the world will never know.

In principle, excellent memory could stand in for the deleted emails.  The Google executive triumvirate—Schmidt, Page, and Brin—had no shortage of intellectual firepower, and arguably they’d be expected to have correspondingly excellent memories.  In fact, Business Insider specifically credits co-founder Larry Page with a “photographic memory.”  Yet in his deposition about the YouTube acquisition, Page said he could not remember YouTube’s copyright procedures, whether Google wanted an indemnification from YouTube for copyright liability, whether Google executives discussed infringing content at YouTube, whether he reviewed due diligence about the acquisition of YouTube, whether he attended the board meeting when the Google board approved acquiring YouTube, or even whether he was in favor of the purchase or against it.  To these questions among many others, Page remarked “I don’t recall” and the like, over and over — by my count, 132 times.  See the questions and verbatim quotes of Page’s answers.

(Incidentally, even Page’s deposition transcript almost didn’t see the light of day.  Initially, this deposition was filed under seal in Viacom v. Google litigation as Hohengarten declaration part 11 (docket #222) attachment #20, redacted in full at Google’s request.  See also docket #247, ordering that redaction.  But in rechecking the docket incidental to this article, I found later docket #324, which provides the transcript.  Last month I uploaded these files to Courtlistener for public archival and review.  Page’s deposition is Attachments 5, 6, and 7.  Until I uploaded Page’s deposition transcript to Courtlistener, these files lingered in PACER – unindexable by web search, available only for those who knew exactly where to look, knew how to log in, and were willing to pay per-page access fees.)

The memory of YouTube co-founder Chad Hurley was equally poor, but newly revealed in Attachments 2-4 in the same docket #324.  Hurley had no difficulty recalling most aspects of product strategy, negotiation strategy, and distribution strategy.  However he was unable to recall multiple subjects that were sensitive in light of the litigation: the basis of Google’s valuation of YouTube (part 1 pages 29-32), entire movies uploaded to YouTube (part 2 pages 12-16), copyright enforcement policies (part 2 pages 19-20 and 26-30), and why YouTube removed ads from Watch Pages (part 2 pages 23-24)—Hurley said he couldn’t recall.

Separately, Viacom calls out Google’s failure to produce relevant documents within its possession.  For example, on March 22, 2006, YouTube founder Jawed Karim presented to the YouTube board of directors:

As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.

Having acquired YouTube, Google should have received the materials previously presented to YouTube’s board.  Yet Google failed to produce this document to Viacom in litigation.  Viacom only received it when Karim, to his credit, produced it after he left YouTube.

Viacom’s Motion for Summary Judgment criticizes Schmidt’s failure to preserve relevant documents, as well as what it calls witnesses’ “serial amnesia” and Google’s other failures to produce.  But Viacom never filed a motion seeking sanctions for spoliation.  The court ultimately granted Google’s motion for summary judgment without ruling on Google’s alleged failure to preserve, witnesses too conveniently forgetful, or any other discovery violation.

Rereading Google’s deficient discovery in the Viacom’s matter, in conjunction with 2023-2024 proceedings about Google discovery violations, to me the picture became increasingly clear.  Google’s decision to evade discovery obligations isn’t a new problem, and it isn’t really a change.  Rather, this problem has been lingering for years, and has surely harmed scores of other litigants—whose ability to prove their cases against Google was stymied by Google falling short of both the productions and the candor required by court rules.  For broader thoughts and more on the other discovery disputes, see Revisiting litigation alleging Google discovery violations.

Google Discovery Violations in Viacom v. YouTube

This post is part of Revisiting Litigation Alleging Google Discovery Violations.

Viacom International, Inc. v. YouTube, Inc. – docket.  1:07-CV-02103-LLS (S.D.N.Y.).

Filed March 13, 2007.  First filing as to discovery violations: March 18, 2010.

Case allegation: “YouTube’s website purports to be a forum for users to share their own original ‘user generated’ video content. In reality, however, a vast amount of that content consists of infringing copies of Plaintiffs’ copyrighted works.”  Complaint.

Case disposition: Summary judgment granted for defendant based on the safe-harbor provisions of the Digital Millenium Copyright Act.  Viacom appealed.  The parties announced a settlement in March 2014 and announced that no money changed hands.

Viacom’s Motion for Summary Judgment at heading “Defendants Cannot Walk Away from Their Contemporaneous Internal Documents.”

As to YouTube’s knowledge of copyright infringement: “The internal emails and memoranda of YouTube’s founders and Google’s senior executives discussed above make a compelling and indisputable record of Defendants’ intent to use infringing videos clips to build the YouTube business.”  Viacom’s Motion, pages 5 to through 21, offer a dozen quotes supporting this contention, such as “we’re hosting copyrighted content” and “we need views, [but] I’m a little concerned with the recent Supreme Court ruling on copyright content.”  “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

As to YouTube founder documents: “Defendants fail[ed] to preserve and produce many key documents.”  “Almost none of … the internal emails and memoranda of YouTube’s founders … were produced by Google or YouTube, which claims they were all lost.”  “Chad Hurley, a founder and YouTube’s Chief Executive from its inception to today, revealed for the first time [at] his deposition that he ‘lost all’ of his YouTube emails for the key time period of this case.”

As to documents from Google CEO Eric Schmidt: He “claims to use and email from ‘probably 30’ different computers … [y]et [his] search for responsive materials [pertaining to YouTube’s policies and practices and Google’s acquisition] ‘yielded 19 documents.’  Schmidt explained: ‘[i]t has been my practice for 30 years to not retain my emails unless asked specifically. … ‘It was my practice to delete or otherwise cause the emails that I had read to go away as quickly as possible’.”

On witness memories: Viacom remarks on “the ostensible memory failures of their key executives when deposed.”  YouTube founder Chad Hurley “developed serial amnesia” in his deposition.  Google go-founder Larry Page “essentially disclaimed memory on any topic relevant to this litigation, even including, for example, whether he was in favor of Google’s acquisition of YouTube, even though it was Google’s largest corporate transaction to date and viewed as transformative to its business.”   (See excerpted deposition transcript.)  “This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.”

Viacom never filed a motion for sanctions for spoliation.

***

Deposition of Google then-CEO Eric Schmidt including his explanation why he had just 19 emails pertaining to YouTube (“[i]t has been my practice to not keep my e-mails”) as well as claiming not to remember numerous facts about YouTube and Google’s strategy in video.

Deposition of Google co-founder Larry Page with analysis of his recollection.  By my count, Page said he did remember when asked about 132 aspects of Google and YouTube practices.

Deposition of YouTube co-founder Chad Hurley (parts 1, 2, 3).  Hurley had no difficulty recalling most aspects of product strategy, negotiation strategy, distribution strategy, and other topics.  However he was unable to recall multiple subjects that were sensitive in light of the litigation: the basis of Google’s valuation of YouTube (part 1 pages 29-32), instances of entire movies uploaded to YouTube (part 2 pages 12-16), copyright enforcement policies (part 2 pages 19-20 and 26-30), and why YouTube removed ads from Watch Pages (part 2 pages 23-24).

Google’s Opposition to Plaintiffs’ Motions for Partial Summary Judgment.  Makes no mention of Viacom’s allegations of documents inexplicably lost, of emails deleted, or witness’ memories.

Order of June 23, 2010 granted Google’s motion for summary judgment without ruling on any of the discovery issues raised in Viacom’s motion.

Eric Schmidt’s Missing Emails and Memory Problems

In Viacom v. Google, Viacom took the deposition of Google then-CEO Eric Schmidt.  In sworn testimony, Page explained why he had just 19 emails pertaining to YouTube, then Google’s largest acquisition.  (Source: Hohengarten declaration ¶266)  Schmidt also repeatedly reported  not remembering events and facts relating to YouTube.

Viacom remarked in associated briefing: “This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.”

Schmidt’s testimony (as excerpted by Viacom).

As to document retention: “[Some] people over time either delete or lose some of that e-mail. It has been my practice for 30 years to not retain my e-mails unless asked specifically.”  “[I]t has been my practice to not keep my e-mails.”  “Q: And is this on some sort of automatic system where they are deleted in the ordinary course over some ordinary period of time?  A: Depending on the e-mail system and the company and so forth, the answer would vary.”  As to document retention while at Google: “It was my practice to delete or otherwise cause the e-mails that I had read to go away as quickly as possible.  Q: Within days?  A: Yes.”

Separately, Schmidt claimed he didn’t remember multiple aspects of Google’s strategy in video.  A representative example:

Q: [Y]ou are aware, I assume, that the acquisition agreement contains an indemnification provision relating to copyright lawsuits?  … A: Yes. Q: And was that discussed by the board …?  A: Yes.  Q: And do you remember that discussion, sir?  A: No.”

Other subjects Schmidt didn’t remember.

Larry Page’s Bad Memory of YouTube and Google Video

In Viacom v. Google copyright litigation, Viacom took the deposition of Google co-founder Larry Page.  In a sworn deposition, Page reported remembering very little about YouTube and Google video.

Viacom remarked in associated briefing: “This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.”

Page’s full deposition is available in parts 1, 2, 3.

In the list below, I summarize the substantive questions asked of Page, and quote his verbatim response to each.  By my count, there were 132 distinct instances in which Page could not recall the answer to a question.  (In this  count and list, I excluded questions about whether Page received documents, excluded questions about why the reasons why he doesn’t remember, and excluded or grouped most repeat questions.)  From my line-by-line review of Page’s deposition:

Keeping “Free Law” Free

Who should pay to store and distribute the litigation records in US federal courts? The answer is surprisingly contentious – and, by all indications, getting more so.

When the general public wants to read documents in US federal litigation, the standard method is PACER – the federal courts’ electronic record system. One might think this would be free to access – an efficient information system run from a few web servers with no significant incremental cost per document copied. But PACER dates back to 1989, when information was provided by modem with genuine costs for courts to obtain and provide dial-up hardware, not to mention servers and storage. Thus a tradition of charging — a tradition which has continued, now yielding fees of $0.10 per page. That sounds low, and it is… until a big session, perhaps looking for the proverbial needle in a haystack, requires browsing hundreds or even thousands of documents at corresponding expense. Meanwhile, with a fee for every page, PACER tells users that the meter is always running and browsing should be done lightly if at all – inconsistent with some readers’ preference to explore unfettered. Certain readers are distinctively at risk. For example, journalists often have limited budgets. For some pro se litigants, virtually any expense is unaffordable. Others are conducting research outside the country or are undocumented, unbanked, or for other reasons have no United States debit or credit card to use for payment.

In principle, litigation might put a check on public record expenses. Following up on a 2014 lawsuit, several non-profits sued the United States in 2016 as to PACER fees, alleging that the E-Government Act of 2002 allows only “reasonable” fees and then “only to the extent necessary.” The plaintiffs argue that PACER charges are higher, are not necessary, and indeed yield revenues that courts divert to other projects. For example, Quartz reports the federal courts spending 28% of PACER revenue on other court technology, such as monitors and sound systems — meritorious, no doubt, yet not obviously related to distributing court documents. Litigation is ongoing. But the disposition of the 2014 lawsuit gives reason to doubt the effectiveness of litigation to constrain PACER fees. For one, a sitting federal judge has every reason to defer to colleagues sitting on the Judicial Council (the body of judges that sets the PACER fee schedule). Indeed, any reduction in PACER fees would deprive the judicial branch of one of its primary revenue sources — a particular challenge if judges believe that Congress does not adequately fund the courts.

In the short run, the most promising response to PACER fees is RECAP, a browser plug-in that lets users share what they read on PACER. The idea is simple and elegant: Whenever a RECAP user reads a document on PACER, the RECAP plug-in sends a copy to RECAP’s servers which in turn store it for others to read free of charge. RECAP has used this approach since 2009, when it began as a graduate student project at Princeton University’s Center for Information Technology Policy (CITP). RECAP later grew with funding from non-profits public.resource.org and the Think Computer Foundation, as well as smaller monetary and in-kind donations from a variety of other groups and legal startups. There have been technical glitches, but on the whole the system has worked well.

A surprise development came in November 2017 when the Free Law Project (FLP), the operator of RECAP ever since the original Princeton team graduated and disbanded, announced major changes in how RECAP-collected data will be distributed in the future. Under the new plan, rather than making all RECAP-collected documents available to the public on the Internet Archive (IA) as soon as possible, FLP would hold the documents until the end of each quarter for a batch update to IA. FLP also proposed to upload litigation materials to IA in only machine-readable formats compressed into enormous multi-gigabyte tarballs, ending the human-readable individual HTML files that have for years made it easy for normal users with standard web browsers to see court records.

FLP says these changes are “necessary for RECAP to thrive” which I understand to summarize concern about FLP funding. I’m sensitive to the need to keep RECAP sustainable. But I question whether the November 2017 changes offer the right approach. Four specific concerns:

  • One, I don’t know that RECAP’s expenses need to be particularly high. Open source software development often does not entail paying developers anything at all. With the right motivation including public praise, some people may be inclined to donate their skills. Certainly RECAP needs new features and improvements from time to time, but most such improvements should last indefinitely once built, reducing RECAP’s ongoing expenses.
  • Two, charging for access to documents seems in sharp tension with RECAP’s promise to users. The organization’s very name — “Free Law” — calls for distributing materials not just without charge, but also without restriction. Indeed, FLP filed an amicus brief in the National Veterans Legal case stating that the FLP is a “nonprofit organization established in 2013 to provide free, public, and permanent access to primary legal materials on the internet for educational, charitable, and scientific purposes to the benefit of the general public and the public interest” (emphasis added).
  • Three, there are other promising means to support RECAP. Imagine a service that alerts interested subscribers to new documents in a given docket or referring to a given litigant or subject. Or a premium service that searches or cross-references document contents. Perhaps bulk downloads of hundreds of files en masse. RECAP could do all of this and more. If RECAP stays true to its nonprofit public-interest mission, and if its expenses remain as low as it seems like they could be, RECAP could also rely on further funding through grants, avoiding the need to try to monetize data that FLP itself calls “free” and “public.” These, in my view, are the more natural ways to fund RECAP’s operations. In contrast, charging for the documents themselves may be easier – no need to build new features – but it is too far from RECAP’s prior promises and users’ expectations, not to mention undercutting the public interest in the National Veterans Legal lawsuit.
  • Four, FLP announced the delayed data distribution as a fait accompli, not soliciting input ahead of time from the users who contribute documents and code to the RECAP plug-in. That’s a natural approach for a commercial service, and maybe appropriate for some non-profits, but hard to reconcile with the position of stewardship I had understood RECAP and FLP to aspire to.

More generally, I struggle to reconcile FLP’s changes with the organization’s non-profit status and with its overall position favoring free and unrestricted access to court documents.

A final twist is that FLP has already arranged for only its own CourtListener site to get premium access to RECAP’s documents as they are gathered by users and uploaded by the RECAP plug-in. FLP envisions that other sites and the public will get access only once per quarter unless they pay an undisclosed fee. Indeed, a few sites have sprung up to collect RECAP-gathered court records, repackage them in some way, and distribute them to the interested public. It’s hard to see a principled reason why only CourtListener should get superior and more frequent access to the documents. They’re public documents, gathered by the US courts themselves, and then submitted for public archival by participating users who support the “Free Law” RECAP concept. Nothing in users’ or donors’ understanding or their agreement with RECAP calls for RECAP providing the documents to only one site but not others.

Tensions have been brewing, including a pointed critique from Aaron Greenspan (whose PlainSite service is among the victims if RECAP begins to withhold data from other services), as well as Internet Archive staff questioning the purpose and effect of the proposed changes. But getting this right requires more users speaking up about what they want from RECAP and what they expect of its leadership. For myself, I want a RECAP that lives up to the principles articulated in 2009 — gather court documents and distribute them without charge or restriction.

(Added January 25, 2018) On Github, user @johnhawkinson pointed out the FLP is still posting RECAP data to CourtListener, and indeed indicates that it will continue to do so promptly (even though IA uploads are to be delayed). Indeed. And at present, no CourtListener TOS limits how users access the site; it seems users could download thousands of documents for their own purposes, even scrape the site and its contents if that better matches their requirements. Kudos to CL for not banning (or purporting to ban) those methods. Yet favoring CourtListener, rather than the authoritative and widely-trusted archive.org, seems to me a troubling change. FLP’s stated reason for putting data only on CL, and not promptly on IA, is to make the service “sustainable” which I take to mean an effort to raise funds, which in turn entails withholding features or data (or both) from those who don’t pay. And FLP is already asking for payments from those sites that seek full access to bulk RECAP data. Such restrictions and charges are exactly what RECAP’s historic mission did not contemplate or indeed allow.

In Accusing Microsoft, Google Doth Protest Too Much

In Accusing Microsoft, Google Doth Protest Too Much. HBR Online. February 3, 2011.

Google this week sparked a media uproar by alleging that Microsoft Bing “copies” Google results. But is that actually the best characterization of what happened? In fact Google’s engineers intentionally clicked bogus listings they had previously inserted into Google’s results, and they did this on computers where they had specifically authorized Microsoft to examine their browsing in order to improve Bing.

Strikingly, Google’s own Matt Cutts previously endorsed the use of Toolbar and similar data to improve search results — calling this approach “a good idea.” And Google’s own Toolbar Privacy Policy allows Google to perform the same analysis Bing used. So I don’t have much sympathy for Google’s allegations of impropriety. Quite the contrary: With Bing’s small market share, this data is important in improving Bing search results and building a viable competitor to Google’s dominant search offering.

Details, including what exactly happened, Google’s prior statements, and Google’s widespread use of others’ intellectual property:

In Accusing Microsoft, Google Doth Protest Too Much

Debunking Zango’s "Content Economy" updated May 29, 2008

Zango often touts its so-called “content economy” — purportedly providing users access to media in exchange for accepting Zango’s popup ads. After four years of debunking Zango’s claims, I’ve come to suspect the worst — and my investigations of Zango’s media offerings confirm that Zango’s media library is nothing to celebrate. This article reports the results of my recent examinations. I show:

  • Widespread copyrighted video content presented without any indication of license from the corresponding rights-holders. Details.
  • Widespread sexually-explicit material, including prominent explicit material nowhere labeled as such. Details.
  • An audio library consisting solely of prank phone calls to celebrities (without the “music” Zango promises). Details.
  • Widespread material users can get elsewhere for free, without any popups or other detriments. Details.
  • Widespread material that content creators never asked to have included in any Zango library. Details.

Widespread copyrighted video content presented without any indication of license from the corresponding rights-holders

Many of the videos in of Zango’s video library are the work of major movie studios, TV networks, and other third parties that own and assert copyright in their respective works. These videos consistently appear without any statement of authorization (e.g. “used with permission”) or even the ordinary copyright notice. I therefore conclude that Zango’s site features these videos without authorization from the corresponding rights-holders.

Zango Offers Daily Show with Guest Chris Rock Zango Offers Daily Show w/ Chris Rock

Zango Offers 'Borat' Zango Offers Borat

For many videos in Zango’s library, it is trivially easy to determine the video’s source. For example, text in the corner of Zango’s “Ashley Judd Nude Photoshoot” indicates the video comes from “Norma Jean & Marilyn” (1996, released on DVD by HBO Home Video). The title of Zango’s “Wild Things” suggests the video comes from the 2004 Sony Pictures movie by the same name; watching the video confirms the match. Zango’s “Girls Next Door Nude Compilation” begins with the distinctive Playboy logo. Zango’s “Chris Rock on the Daily Show” reproduces a video clip from Comedy Central’s Daily Show. It’s easy to find scores of other examples plainly labeled as well-known copyrighted works.

Other videos in Zango’s library are harder to identify — at least those without extensive entertainment industry experience. For example, I cannot easily determine the specific movie that included the scenes shown in Zango’s “Paris Hilton Striptease” or “Rachel Hunter in the Bathtub.” But the clips leave little doubt that they were filmed professionally and that the respective studios hold copyright in the resulting works. Similarly, I cannot easily determine the specific source of Zango’s “Branding Beat Down.” However, every frame of the video bears the distinctive Fox logo — indicating that the video originated with the Fox Broadcasting Company.

As to at least eight of the files in Zango’s library, I have specifically confirmed that Zango’s reproduction occurs without authorization from the underlying rights-holders. (Details below.) As to selected other files, I have sent inquiries to the corresponding rights-holders. I will update this page if I confirm whether Zango has properly licensed the content at issue.

Infringing videos are remarkably prominent in Zango’s video library. For example, as of May 27, Zango’s home page linked to “Borats First Trip To An American Gym” (s.i.c.). This clip was listed as the second most popular video in Zango’s entire content library, and it was placed in the top-center of Zango’s main www.zango.com web page, “above the fold” (within the portion of the page visible without using scroll bars). Yet the title of the video plainly indicates that the video contains the copyrighted work of others. Moreover, the video features the “DIVX Video” logo, indicating that DivX software was used to extract (“rip”) the video from a DVD. No authorized reproduction would be provided with a DivX overlay, so the presence of the DivX marker confirms that this video was reproduced without permission from the creators of Borat.

Other online video sites have been the target of major copyright litigation. For example, Viacom last year sued Google, alleging that “YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit without payment or license.” In defense, Google points out that YouTube receives videos from independent — potentially granting Google immunity for these infringements due to the Digital Millennium Copyright Act‘s safe harbor for infringements occurring at the direction of users (17 USC 512(c)(1)).

Unlike YouTube, Zango’s video library offers no prominent “upload” function. Some of Zango’s videos arrive through the Revver video-sharing service (discussed below), probably originating with a variety of independent users. But many of the copyrighted videos Zango offers reside on Zango’s servers, not on Revver servers. (For example, all eight of the sexually-explicit videos linked in the first paragraph of the next section are hosted on Zango servers.) Because Zango offers no “upload” function by which ordinary users could have put videos onto Zango’s site, it therefore appears that these videos were provided by Zango or its agents, not by independent users. If so, Zango will not find protection in the DMCA’s safe harbor for infringements caused by users.

Moreover, even if Zango’s videos were provided by independent users, the circumstances of the reproduction seem to render Zango ineligible for the DMCA safe harbor. For one, the safe harbor requires that Zango lack actual knowledge of the infringements. But the infringing videos were obvious and self-evident, not just from their titles and contents, but also from their prevalence in featured results Zango chose to highlight. In addition, the safe harbor requires that Zango not receive a financial benefit directly attributable to the infringements. But Zango used these videos to induce users to download its popup-generating software, a financial benefit that is directly attributable to the infringing videos. (Consider the case of a user who installs Zango in response to solicitation offering a specific copyrighted video clip. Example.) Furthermore, Zango has the right and ability to control the infringement (e.g. by removing the infringing videos). Because Zango’s financial benefit can be directly tracked to a specific infringement, and because Zango has the right and ability to prevent such infringement, Zango seems to fail the test in 17 USC 512(c)(1)(B).

Zango may claim that its videos are fair use. The Copyright Act sets out a four-factor test for determining whether reproduction of a copyrighted work is permissible, despite lack of authorization from the rights-holder. The fair use test calls for considering 1) the purpose and character of the use (e.g. whether commercial or nonprofit), 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use upon the potential market for the work. Factor one is easy: Zango’s use is clearly commercial, which tends to cut against a finding of fair use. Zango might claim that its presentation of excerpts (rather than entire movies) supports a finding of fair use under the third test — but Zango exactly chooses what it views as highlights (e.g. the explicit portions of full-length movies), yielding clips with a greater than usual effect on the potential market for the underlying works. In short, a fair use defense is at best uncertain.

Wide-scale copyright infringement could expose Zango to substantial liability. The Copyright Act provides for statutory damages of “not less than $750” per violation. My examination indicates Zango is reproducing (at least) hundreds of copyrighted videos without any statement of authorization. Furthermore, such videos have surely been downloaded repeatedly — giving rise to potential statutory damages that could easily reach seven digits or more.

Widespread sexually-explicit material, including prominent explicit material nowhere labeled as such

Celebrity Videos Featured by Zango Celebrity Videos Featured by Zango

Prominent Video - Explicit but Unlabeled
Prominent Video – Explicit but Unlabeled

Browse Zango’s video library, and it’s easy to find sexually-explicit video. As shown in the first inset image at right, the bottom-right corner of each Zango “Browse” page gives a list of celebrities — each of them female, each featured in various states of undress. Among other explicit videos of these celebrities, Zango offers “Britney Spears See Thru“, “Britney Spears Black Dress Upskirt“, “Paris Hilton Striptease“, “Rachel Hunter in the Bathtub“, “Jessica Alba’s Chest and You“, “Jessica Simpson Nipple Slip“, “Anna Kournikova Panties Oops“, and “Angelina Jolie Sex Scene.”

The titles and descriptions of many of Zango’s videos suggest that their subjects were unwilling participants. See e.g. “nipple slip” and “upskirt” above, as well as additional videos like Zango’s “Arab wife’s sexy dance secretly taped” and Zango’s “Girlfriend Finds Hidden Camera.”

Through its placement and labeling of sexually-explicit videos, Zango creates a substantial risk that users will receive explicit materials they did not seek. For example, on May 24, I clicked “Browse” to flip through Zango’s content library. Using Zango’s default sort, the third video was entitled “the pool” with comment “havin fun in the pool” (s.i.c.). (Screenshot of the link from within Zango’s video library.) This title and comment give no indication that the resulting material is explicit. But clicking the “Watch” button immediately yields a large video showing two male adults swimming nude, then exiting the pool (entirely disrobed). As best I can tell, Zango did nothing to alert users to this explicit material, nor does Zango prevent (or even discourage) children from viewing such material.

Zango’s May 24 “the pool” video was not a mere anomaly. The same video remained linked in the same way in my tests on May 25 and 26, and on portions of May 27.

In litigation documents, Zango last week claimed that it never distributes explicit material to those do not want it. In particular, Zango argues: “Zango never sends unwanted links to pornography web sites” and “Zango only directs adult-oriented advertisements to a user after that user, by his own behavior, has demonstrated interest in such content.” I disagree. The preceding paragraphs offer a counterexample — Zango prominently providing a link to sexually-explicit materials, and provideing that links to users who never demonstrated interest in any such content. Zango may claim that these links tout videos — not a “web site” as in the first quoted sentence. Alternatively, Zango may claim that the links are not “advertisements” — hence beyond a strict reading of the second quoted sentence. But the underlying contradiction remains: Zango says it doesn’t provide pornography except when users seek it; yet in fact Zango does sometimes deliver explicit materials unrequested.

That Zango funds and distributes sexually-explicit materials is well-known. See e.g. the Sunbelt Blog’s February 2008 conclusion that “80% of [Zango’s] business comes from Seekmo, the porn side of its business.” See also Sunbelt’s off-hand November 2006 remark that “hardcore porno videos [are] funded through Zango Seekmo installs.”

But the scope of explicit materials within Zango’s video library is quite striking. Consider the first page of Zango’s library listings for Angeline Jolie. Beyond the “sex scene” video linked above, the listings also include “Angelina Jolie Taking a Bath”, “Angelina Jolie Under the Sheets”, “Angelina Jolie in Bra & Panties”, “A fairly long nude scene staring Angelina Jolie” (s.i.c.), “Angeline Jolie Getting It On”, “Angelina Jolie Nip Slip”, “Angelina Jolie Hardcore”, and “Angelina Jolie Dominatrix”, and “Angelina Jolie Hot On The Runway.” That’s ten explicit results out of twenty links — suggesting that explicit materials are remarkably widespread on Zango’s site.

The initial version of this article also flagged Zango’s “Nice But” (s.i.c.), a video that on May 27 occupied the fourth-most prominent position in Zango’s “Browse” listings. The thumbnail image of this video appeared to feature a full-screen display of a man’s naked buttocks, filling the entire screen. In a follow-up, Zango points out that in fact, the video shows an extreme close-up zoom of of two hands. So this image and video are not actually explicit. Yet a viewer merely flipping through Zango’s listings would nonetheless see an image that is, by all indications, explicit. The title “but” (s.i.c.) and the keyword “naked,” both adjacent to the thumbnail, reinforce the user’s perception of having seen an unrequested explicit image. Although the image is not actually explicit, the image’s content, placement, and labeling make it likely to leave users with the same feeling as an unrequested image that is actually sexually explicit: In both instances, a viewer who merely sees the image and does not watch the video will think he has seen an unwanted explicit image. In my view, Zango errs in mocking this harm. To the users who Zango tricks, the harm is perfectly real.

Zango’s audio library consists solely of prank phone calls to celebrities

Zango Offers Prank Phone Call Recordings Zango Offers Prank Phone Call Recordings

Zango’s content library offers three types of media: Videos, screensavers, and audio. Despite Zango’s much-touted “content economy,” Zango offers just eight audio clips. And although Zango’s “About Zango” description promises to provide free access to “music,” in fact all eight of these audio files are recordings from talk radio — just voices, with no music at all.

All eight of Zango’s audio recordings share a common theme: Prank phone calls to celebrities. In each, a caller pretends to be someone famous (e.g. the Prime Minister of Canada), and calls a celebrity (e.g. Bill Gates) under the guise of a bona fide discussion. The caller proceeds to berate the celebrity (e.g. by criticizing the features and reliability of Windows).

A comment in several of the videos reveals the source of the recordings: The Masked Avengers, which Wikipedia describes as “a Canadian radio duo … of disk jockeys and comedians Sebastien Trudel and Marc-Antoine Audette, known for making prank calls to famous persons by pretending to be government officials or officers in charitable organizations.” I wrote to Mr. Trudel, who confirmed to me that he has not granted Zango any license to use or reproduce these clips.

After placing these recordings in its content library, Zango further syndicates the materials onto Zango’s partner sites. For example, celebsprankd.com (screenshot) features all eight recordings, but requires users to install Zango before listening. Whois reports that Celebsprankd comes from the Vancouver, B.C. advertising firm Neverblue Media — a conclusion confirmed by the presence of the Neverblue.com web server at the same IP address. Neverblue describes itself as a “leading … online marketing company” offering “premier” advertising and “solid business leads” — claims arguably inconsistent with distributing and profiting from prank phone calls, not to mention distributing Zango. (But these recordings aren’t Neverblue’s only tie to Zango. This month alone, my Automatic Spyware Tester found eleven incidents of Neverblue affiliates buying popup traffic from Zango. I’ve also found dozens more incidents as to Neverblue affiliates buying traffic from other spyware.)

What of Zango’s distribution of these prank call recordings? With so few clips yet such prominent placement (including five of these eight audio recordings featured on Zango’s home page), senior Zango staff surely know what the files contain. Does Zango support prank phone calls? Wasting celebrities’ time under false pretenses? Recording phone calls without permission, even in states that specifically require such permission? It’s hard to reconcile these practices with Zango’s supposed reforms.

Widespread material users can get elsewhere for free, without any popups or other detriments

Much of Zango’s content is available elsewhere without charge and without installing any software that tracks online behavior or shows popup ads. For example, clicking Zango’s “Browse” tab and retaining defaults, every single video on the first page of results is syndicated from Revver. Users could just as easily get these videos directly from Revver, as receive them from Zango. But if users watched these videos at Revver, Zango’s software would not track their web browsing and searching, and users would not receive Zango’s popup ads.

Zango Falsely Claims that Uninstallation Eliminates Content Access Zango Falsely Tells Its Users:
“Uninstallation … eliminates content access”

Furthermore, Zango makes untrue claims about the necessity of its software. For example, Zango claims that “uninstallation … eliminates content access.” It does not. For files hosted at Revver, installation of Zango is not necessary to watch the videos in the first place, and uninstallation does not interfere with watching the videos later. Moreover, even many Zango-hosted files can be accessed without installing Zango, or after uninstalling Zango. For example, Zango’s “Chris Rock on the Daily Show” is actually just a standard Windows Media Video (WMV) distributed from the following URL: preview.licenseacquisition.org/123/1054944882.36393/yikers_chris_rock_on_the_daily_show.wmv . Zango’s “Borats First Trip To An American Gym” (s.i.c.) is preview.licenseacquisition.org/123/1054944854.02531/yikers_borats_first_trip_to_an_american_gym.wmv . Similarly, Zango’s “Bill Gates Gets Pranked” is a WMA hosted at preview.licenseacquisition.org/13/12295/12295.wma . Any user who knows these URLs can easily receive the corresponding files — without ever installing Zango, or after uninstalling Zango. Zango ought not claim otherwise.

Presenting material that content creators never asked to have included in any Zango library

By syndicating videos from Revver, Zango causes its video library to feature materials that content creators never asked to have associated with Zango in any way.

Zango’s syndication of Revver videos has prompted numerous complaints content creators who post videos to Revver. For example, Chris Pirillo asked why his videos are appearing on Zango. (“I don’t remember giving Zango permission to push crapware on my behalf.”) Revver forum user JPPI pointed out the irony of Zango claiming his videos were “FREE, thanks to Zango” when in fact the videos were free all along (even before Zango syndicated them). Revver forum user David complained that it is “kinda deceptive” (s.i.c.) “to make it sound like Zango was the one who made the video free.”

In response, Revver Vice President Asi Behar agreed to ask Zango to remove any Revver videos that Revver authors specifically so designate. But such removals do nothing to cure the deception of Zango requiring that users install its software before watching materials widely available elsewhere for free. Furthermore, such removals do nothing to protect Revver content creators who are unaware of Revver’s relationship with Zango. The word “Zango” appears nowhere on Revver’s official web site (as distinguished from Revver’s forums and some Revver-hosted videos). Thus, a Revver content creator has no easy way to learn about Revver’s relationship with Zango — not to mention learn of the option to request exclusion from Zango.

Zango’s syndication of Revver videos risks tainting the good name of Revver content creators. Consider a user who searches for a Revver video and finds that video hosted at Zango (just as Chris Pirillo did last year). The user may mistakenly conclude that installing Zango is in fact necessary to watch the video. If so, the user is likely to end up with a negative view of the underlying content creator — mistakenly concluding that, e.g., Chris Pirillo has partnered with Zango or endorses Zango’s activities. Revver forum complaints indicate that numerous Revver users share this concern. Yet Revver continues to syndicate videos to Zango without first checking with content creators.

Zango’s problems in context

Last week, Zango was one of four finalists for the Software & Information Industry Association’s CODiE Best Video Content Aggregation Service. In my view, that award is misguided: Far from deserving praise, Zango should be criticized and shunned for reproducing others’ copyrighted work without any apparent license to do so, showing sexually-explicit material unrequested, and offering users a lousy value by bundling extra ads with content users could get elsewhere for free.

Meanwhile, Zango continues litigation with Kaspersky. Recall: Kaspersky blocked Zango’s software from installing; Zango sued; Kaspersky successfully defended on the grounds that the Communications Decency Act, 47 USC 230, immunizes Kaspersky’s behavior because Kaspersky is an “interactive computer service provider” blocking material that, in its subjective opinion, is “objectionable.” In Zango’s appeal, Zango claims its software is not “otherwise objectionable” (brief pages 12-15; PDF pages 17-20). If it’s not objectionable to show explicit material unrequested — not to mention to infringe copyrights on a massive scale, and to insert extra ads around material available elsewhere without such ads – then I don’t know what is.

Finally, I’m often asked whether Zango continues the behaviors I previously reported. Installing through sneaky fake-user-interface pop-up ads that mimic the appearance of official Windows dialog boxes (as I reported last summer)? Yes. I made a fresh video showing such installations just last week.Defrauding advertisers through popups that cover merchants’ sites with their own affiliate offers(as I reported last spring, in September 2005, in summer 2004, and otherwise)? Definitely. This month alone, I reported six Zango incidents to just one of my advertiser clients — not to mention scores of other incidents targeting other web sites and advertisers. Zango repeatedly claims its problems are all in the past, but my hands-on testing continues to indicate otherwise.

Research on WhenU Search Engine Spamming, and Its Consequences updated May 22, 2004

Today I released an article documenting at least thirteen web sites operated with WhenU’s knowledge and approval (if not at WhenU’s specific request) that use prohibited methods to attempt to manipulate search engine results as to searches for WhenU and its products.

Some of these cloaking sites do offer information about WhenU, but their genuine information is interspersed with a mix of gibberish as well as with articles copied, without attribution of any kind, from the New York Times, c|net, and others. Meanwhile, most or all of the sites were registered with invalid whois data — most registered on the same day through the same registrar, but to five different names with five different gibberish email addresses in four states. The details:

WhenU Spams Google, Breaks Google ‘No Cloaking’ Rules

Sound too weird to be true? It turns out these behaviors are part of a practice called “search engine cloaking” — designed to make search engines think a site is about one subject, when in fact the site redirects most visitors to totally different content. The situation is complicated, and the easiest way to understand it is to read my article, complete with HTTP transmission logs and annotated HTML code.

Meanwhile, Google’s response was swift: I notified Google of the cloaking infractions on Sunday, and WhenU’s sites were removed from Google by Wednesday. Try a Google search for “whenu” and see for yourself: You’ll get critics’ sites and news coverage, but not www.whenu.com itself.

In subsequent research, I also found that WhenU has been copying news stories from around the web, without any statement of license from the respective publishers. See WhenU Copies 26+ Articles from 20+ News Sites. After I released this article, WhenU deleted the article copies from the dozen WhenU sites on which they had been posted. Fortunately, I kept plenty of screenshots. Meanwhile, at least one affected publisher has confirmed that the copies were unauthorized.

These aren’t WhenU’s only controversial business practices. For one, there’s WhenU’s core business — showing context-triggered pop-up advertisements that cover other companies’ web sites, without those sites authorization, a subject which has brought on extensive litigation. In addition, I previously discovered that WhenU violates its own privacy policy. In its privacy policy (as it stood through May 22), WhenU tells (told) its users that “URLs visited … are not transmitted to whenu.com or any third party server.” WhenU’s software installers continue to say the same, sometimes even more explicitly (“does not track, collect or send your browsing activity anywhere”). But my research indicates otherwise — that WhenU transmits to its servers the specific web pages users visit, and that it makes these transmissions every time users see WhenU advertisements. Details, including HTTP logs and screen-shots, are in my WhenU Violates Own Privacy Policy.

Expert Declaration in Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation

I had the honor of preparing two expert declarations in Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation in federal court in the Eastern District of Virginia. My clients were the plaintiffs in the case, including the Washington Post Newsweek Interactive Company, Gannett Satellite Information Network, Media West-GSI, the New York Times Company, the Boston Globe Newspaper Company, Dow Jones, Smartmoney, the Chicago Tribute Interactive, Condenet, American City Business Journals, Cleveland Live, and Knight Riddler Digital.

Soon after my declarations, the case settled, and Gator stopped covering my clients’ sites with its popup advertising and other ads.

My declarations and other case documents.