“Google has argued that the source code is a business secret and cannot be revealed without running a risk of loosing the business.”
New York — A federal judge in New York ruled Wednesday that has denied a request to compel Google Inc. and Google’s YouTube unit to turn over the source code at the heart of their search functions as part of an continuing $1 billion copyright-infringement lawsuit filed by Viacom Inc.
In an order Tuesday, U.S. District Judge Louis L. Stanton in Manhattan granted Google’s motion for a protective order barring the disclosure of the source code, which controls the YouTube.com search function and Google.com’s Internet search tool, agreed with Google’s characterization of the source code as a trade secret that cannot be disclosed without risking the loss of business.
Furthermore, Judge Stanton also declined a request to force Google to produce electronic index data for its advertising and Google Video Content databases and to force YouTube to produce source code for its “Video ID” program, which allows copyright owners to furnish YouTube with video reference samples to help track down infringing videos.
The judge also refused Viacom’s motion for Google to produce source code for its Video Identification Tool, which helps copyright notify Google of copyright infringement.
“YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation,” the judge said. “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.”
Viacom, owner of MTV Networks and Comedy Central, originally filed charges against Google in March of last year, claiming the online video-sharing company of allowed users to post clips from Viacom shows including South Park and The Colbert Report without permission.
The Football Association Premier League Ltd., Bourne Co., Federation Francais de Tennis and others later filed a related suit, seeking class-action status.
The judge further stated that no evidence had been offered that the search function “can discriminate between infringing and non-infringing video.” There may be other ways to show that filtering technology is feasible and reasonably could have been put in place, the judge said.
The code is “a critical trade secret,” according to Judge Stanton. Disclosure could cause “catastrophic competitive harm” to Google, the most-used internet search engine, he said.
While the plaintiffs had argued that access to the source code for YouTube’s search service was necessary to prove it can be used to purposely locate infringing content, Stanton wrote: “YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation.”
He did, however, grant the plaintiffs’ request for Google to produce other data, such as that on instances when YouTube videos have been viewed on the site or on third-party sites.
At risk in the legal scuffle is a key part of the Digital Millennium Copyright Act (DMCA), the 1998 law that shields Web site owners from copyright infringement involving material published by users. The “safe harbor” provision in the law can protect against infringement claims as long as copyrighted material is removed upon notification.
“After the suit, YouTube launched an anti-piracy tool that checks uploaded videos against the original content in an effort to flag piracy.”