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Google opposes public access to Viacom-YouTube filings -- Google's Discovery Risks -- Part I

A potential flood of very illuminating documents and information about the inner workings of Google are likely to be released soon by the Federal Court hearing Viacom's $1 billion copyright infringement lawsuit against Google-YouTube, despite strong Google opposition to the court's release of the information Viacom found in "discovery."

  • For the last 24 months, the court has kept the legal "discovery" phase (taking depositions and collecting evidence) under seal, i.e. secret from the public.
  • However, operative court precedent here (Lugosch v. Pyramid Co. of Onodaga, 435 F3d 110, 126 (2nd Cir. 2006)) indicates that once the case moves to the petitions-for-summary-judgement phase, where the case is now, First Amendment considerations indicate that the public have "immediate access" to the petitions and the evidence. 
  • Where the process stands now is that Federal Court Judge Louis L. Stanton has ruled that the petitions, documents, and evidence be unsealed/made public when filed in the coming weeks. Google can still argue that certain information remain redacted and remain sealed, if Google can convince the Judge that the particular information is genuinely confidential.
  • The strong bias under the operative precedent here is for the information to be unsealed/made public at this stage of the process. 
    • Google's letter to the court arguing that basically all documents remain under seal is here, Viacom's rebuttals for full transparency are here and here and the Judge's 3-5-10 decision to set a process for making the documents public is here.

The big takeaway here is that there must be lots of incriminating and embarassing information that was unearthed by Viacom in discovery, if Google is so intent on keeping the information under seal and secret, when it is customary to make it public.

  • The press should be chomping at the bit to delve into the never-seen-before details of the documents that are made public over the next few weeks. 
  • The documents are likely to provide a unique bay-window-view inside the decisions, communications, and thought processes of the super-secretive inner sanctum of the Googleplex.
    • Precursor's sister site,, which is dedicated to making Google more transparent and accountable, plans to make this information "universally accessible and useful" to the public, as will many other sites.
  • The evidentiary record in Viacom's filing that Viacom proposes should be made public, and that Google wants to deny transparency and public access to, encompasses the following information of interest to the press and the public:   
    • "YouTube's pre-acquisition intent, policies, and practices...;
    • Google's intent, policies and practices...;
    • Issues regarding valuation and financial benefit realized by defendants...; 
    • Right and ability to control issues...; and
    • Storage and direct liability issues."
      • (Be sure to see page 3 here for the more interesting specifics of what Viacom was looking for and apparently found.) 

In closing, Google's extraordinary efforts to keep information and documents that should be public, from the public, drips with irony.

  • Isn't Google's trumpeted mission: "to organize the world's information and make it universally accessible and useful?" 
  • Didn't Google in December urge the world to be "open," and trumpet that Google is very open and should seek to be more open, in its post: "The Meaning of Open"?
  • Didn't Google January 12th grandstand on the world stage that Google would no longer censor search results in China in its famous post "Our new approach to China"?
  • Didn't Google March 2nd just represent itself to be a very transparent company in its high profile post: "Google, transparency and our not so secret formula"? 

Is Google for: universal public access to information; openness; no censorship, and transparency... or not?

  • Why is Google so worried about public disclosure of information discovered in a public court proceeding?
  • What does Google have to hide?

Didn't Google CEO Eric Schmidt just tell CNBC in December:

  • "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."



Note: This is the first part of a new Precursor series that will explore how the legal process of discovery in the myriad of lawsuits against Google may be one of the only ways that Google becomes more transparent and accountable.