Fox seeks YouTube user's identity

By Andrew Wallenstein and Carl DiOrio

Jan 25, 2007

20th Century Fox served YouTube with a subpoena Wednesday, demanding that the Google-owned viral-video site disclose the identity of a user who uploaded copies of entire recent episodes of "24" and "The Simpsons."

The subpoena, which first came to light on the blog Google Watch, was granted by a judge in U.S. District Court in San Francisco after being filed Jan. 18 by the News Corp.-owned studio. It is not yet known whether YouTube has complied with the request.

In addition, lesser-known video site LiveDigital was served with a similar subpoena. A spokesman for LiveDigital confirmed the company received the subpoena and intended to comply immediately.

A Fox spokesman confirmed the subpoenas were filed and served but declined further comment. A spokesman for YouTube declined comment.

The "24" episodes in question actually appeared on YouTube before their primetime Jan. 14 premiere on the Fox broadcast network, which spread four hourlong episodes of the hit drama over two consecutive nights. Fox became aware thst the episodes were on YouTube on Jan. 8, according to the subpoena.

Filed on the basis of the Digital Millennium Copyright Act, the subpoena includes testimony of Fox Entertainment Group vp Jane Sunderland suggesting Fox has been unable to determine the users' identities on its own. The uploaded material could cause Fox "irreparable harm," Sunderland said, but it was not immediately clear if the episodes in question still were posted on the site or had been removed.

However, the subpoena identifies the YouTube subscriber by the username "ECOtotal." A search under that username on the YouTube site unearths a user by that name with a banner across the top of the subscriber's page that reads, "This user account has been suspended."

Still, identifying "ECOtotal" won't necessarily explain how unaired episodes of "24" made it onto the Internet. Before Jan. 8, there were reports that the same episodes had popped up on illegal file-sharing sites, which might have transmitted them even before they appeared on YouTube.

This is not an unprecedented request for YouTube. In May, before its $1.65 billion acquisition by Google, the site complied with a Paramount Pictures request to identify a user who shot his own unauthorized short film adapted from the screenplay of the Oliver Stone film "World Trade Center."

But Google has a history of fighting subpoenas seeking the names of those using its services.

YouTube and most other similar sites typically tell content providers they will delete copyright video when alerted by owners of the material.

Among the content companies, much of the more aggressive policing of peer-to-peer and community-based Web sites has been by Universal Music Group. UMG has sued MySpace and others over what it calls illegal postings of its artists' music videos, and it came close to legal action against YouTube before striking a licensing agreement with that site last year.

Terence Clark, a copyright attorney with the Los Angeles law firm Greenberg, Traurig, said Fox, appears to be proceeding along proscribed legal lines in the matter.

"It's the process available under the Digital Copyright Act," Clark said. "There are certain procedures you can follow to get some information (but) this also impinges on the question of the privacy issues of the users of the sites."

Some sites might need to defend strongly against actions like Fox is taking, but ultimately the studio is likely to prevail, said Tom Ferber, a copyright attorney with the Pryor Cashman law firm in New York.

"It's always a policy decision of the entity involved," Ferber said. "So if you're the hard-news press, for instance, usually money is no object if it's seen as infringing on (your) rights. And (these sites) may have business issues of concern as well. But I think ultimately the studio is going to get the names that they want."

As for the 12 "Simpsons" episodes identified by the subpoena, most of them are from Season 7 of the long-running animated Fox series. One, however, is as recent as Jan. 7, while still another dates back to 1990.