When I sat down to read the parties’ moving briefs in Viacom v. YouTube back in the spring, I was reminded powerfully of something I have come to think of as the Mildred Rule (in honor of my late grandmother, pictured above with me in 1971). Though the Mildred Rule did not come into play in the summary judgment opinion that just issued, the opinion seemed to present an opportune moment for a post on the subject.
Among other things, Viacom argued that YouTube (1) intended to create a haven for massive copyright infringement, (2) knew that rampant infringement was occurring on the site, and (3) deliberately exploited infringing content in order to increase user traffic to the site. In support of these arguments, Viacom introduced rafts of internal YouTube emails which, in florid and sometimes sarcastic language, exposed YouTube’s struggle to address the issue of infringing videos on the site. In the emails, YouTube employees referred to content owners as “copyright bastards” and “a-holes.” They made flippant comments such as, “save your meal money for some lawsuits!” and “steal it! . . . haha ya.” And they suggested that “one of the co-founders is blatantly stealing content from other sites,” and “we’re just trying to cover our asses so we don’t get sued.”
Fortunately for YouTube, Judge Stanton ruled on a purely legal issue and did not need to reach the evidence of YouTube’s knowledge in the emails. (And incidentally, I thought YouTube’s counsel did a stellar job in their opposition papers of countering this evidence.) Judge Stanton could, however, have ruled differently; for example, he could have found that the conflicting evidence submitted by both parties created a genuine issue of material fact about the state of YouTube’s knowledge, requiring the case to go before a jury. To a jury, this kind of raw, emotional, unexpurgated email evidence could have a devastating effect on YouTube’s defense. Indeed, Judge Stanton noted, “a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website.”
Which brings me to the Mildred Rule. In its initial formulation, the Mildred Rule exhorted, “If you don’t want your grandmother to see it on the front page of the New York Times, don’t put it in an email.” But that was not long after I graduated from law school (back in, roughly, the Pleistocene era); today, the Mildred Rule might be amended to read, “If you don’t want your grandmother to see it on nytimes.com (or huffingtonpost.com, or widely-disseminated-.com-of-your-choice), don’t put it in an email.”
I am continually amazed at the statements people commit to email. When I was a new lawyer, email was just beginning to take hold in the business environment. When I worked on my first litigation that involved reviewing email (back then, we printed them out – on paper! - to review and produce them), I remember thinking that in the future, as people caught on to the fact that email really is permanent and can be discovered to a party’s significant detriment in litigation, we wouldn’t get so many juicy tidbits in discovery anymore, because people would learn to exercise more restraint before hitting the “send” button. The opposite has happened. The proliferation, and now ubiquity, of different forms of electronic communication has resulted in a steadily increasing degree of comfort with the medium, culminating in a generation of “digital natives” for whom email comes as naturally as breathing.
From the standpoint of lawyers who advise clients, and litigate on their behalf, this evolution presents a significant challenge. Our role as counselor is to guide clients’ decisionmaking processes without unduly hampering the conduct of their affairs. Email (like its progeny, instant messaging and texting) is not going away; nor should it. And possibly, in view of society’s increasing digital exhibitionism on the social networking frontier, the notion that one might be embarrassed to have one’s grandmother read anything, however scurrilous, is hopelessly antiquated. But the email evidence submitted in Viacom v. YouTube demonstrates a continuing need to educate clients about the potential pitfalls of email as a communication tool in the business environment. So when the opportunity next presents itself, remember Mildred and help your clients keep their emails out of the spotlight before litigation hits the fan.
I realize that this post is not, strictly speaking, a copyright post. The Mildred Rule, however, is an equal opportunity rule which does not discriminate based on practice area; copyright litigants run afoul of it as often as parties to any other kind of dispute, as demonstrated so aptly in Viacom v. YouTube.