Volkswagen 'Nazi' Subpoena Points Up Social-Networking Privacy Policies

Sept. 16 -- A legal spat between YouTube and Volkswagen is throwing light on the increasing copyright surveillance of social networking sites.

Volkswagen has filed a subpoena seeking the identity of a YouTube user who posted a Nazi-themed parody of a recent VW Golf commercial. Volkswagen's move underscores the privacy risks to a blossoming community of users on sites like YouTube and Yahoo Video, and social-networking sites like Facebook and MySpace.

Copyright holders and their agents have long been monitoring activity on file-sharing networks such as BitTorrent and Gnutella. Now they're turning their attention to the social networks.

"The social networking sites have definitely become a new focal point," said Evan Cox, a San Francisco copyright attorney who, with his colleagues, issue thousands of takedown notices a year. "As a consequence, they've gotten more focus from copyright owners."

Volkswagen alleges the video violates its copyrights, according to San Francisco federal court documents. The doctored video has been removed from YouTube and is no longer available. The VW subpoena is the first legal step toward what could grow into a copyright infringement lawsuit. Volkswagen did not reply to several messages seeking comment.

Usually, the music business is the complainant, using the power of subpoena under the Digital Millennium Copyright Act in a bid to learn the identity of alleged copyright infringers, Cox said. "It's fairly rare, at least outside the music industry, but is used occasionally in other contexts," he said.

Privacy experts warn that such subpoenas sometimes amount to fishing expeditions by companies seeking to unmask the identities of rivals or insiders under the guise of legal action. However, there's no consensus among the social networking sites about how they respond to subpoenas seeking users' identities.

YouTube said it generally notifies users when it receives civil subpoenas seeking their identities, as does its parent company, Google. Yahoo, its Silicon Valley rival, does the same. Facebook, however, declined to answer an inquiry from Wired News.

If users are notified, it affords them a chance to protest the subpoenas in court and, if successful, keep their identities secret and avoid being sued or targeted by somebody claiming defamation, copyright, privacy or other breaches. When individuals challenge subpoenas, the lawyers seeking their identity sometimes drop the case. And the courts routinely quash challenged subpoenas if they conclude there were no legal violations to begin with, privacy experts said.

"The notice gives you the opportunity to speak privately, by filing a motion to quash," said Fred von Lohmann, an intellectual property attorney with the Electronic Frontier Foundation. "The courts, before somebody's identity is released, are requiring a legitimate claim against you."

Still, if the subpoenas go unchallenged, the ISPs comply with them.

"YouTube complies with valid U.S. legal process, such as a valid court order or subpoena," said a YouTube representative, who requested his name not be published. "However, as a matter of policy we generally do not publicly discuss legal matters, including the number of times we have been subpoenaed."

"We may be required to disclose user information pursuant to lawful requests, such as subpoenas or court orders, or in compliance with applicable laws," Malorie Lucich, a Facebook spokeswoman, said in an e-mail to Wired News directly quoting language from the site's privacy policy. "We do not reveal information until we have a good-faith belief that an information request by law enforcement or private litigants meets applicable legal standards."

Years ago, Yahoo and other companies came under fire for not notifying customers of subpoenas targeting those using the site's message boards. But there are no laws on the books requiring such notice.

California lawmakers defeated a proposal toward that goal in 2004, following intense lobbying from the entertainment industry. The law would have required notice of subpoenas related to defamation, privacy, trade secrets and other statutes enforced by California, which is home to many of the nation's most popular sites, including Yahoo, YouTube and Facebook.

Copyright subpoenas, which fall under federal law, could not be covered under the California proposal. Virginia, home to AOL, is the only state having a notification law, said Deirdre Mulligan, director of the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law. "It's an industry best practice to try to give notice, even though there's no legal requirement to do so."

In short, we should apparently trust the sites to protect the privacy of users over the interests of copyright holders, which often are major advertisers.

Americans watched more than 9 billion videos online in July, up about 8 percent from the month earlier, according to comScore Media Metrix. The bulk of the videos were viewed on social networking sites. Google's YouTube ranked at the top with about 2.4 billion videos views. Yahoo, in second, had 390 million videos viewed and Fox Interactive Media, which owns MySpace, came in third, with 298 million views for July.