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.
Wise counsel — which all too few clients bother to follow, no matter how many times we have this discussion and relate the details of horror stories. I’ve come to suspect that the failure of clients to heed this advice (to be fair, it’s usually some of the younger employees, not the company as a whole) is that many people engage in email communication in a way that does not lend itself to reflection. On the spectrum between slow, deliberative manual writing of a document and lightening quick conversation on the phone, email falls much closer to the latter for many people. Imagine having a tape recorder hung around your neck recording for posterity every stupid thing that comes out of your mouth — people are just not going to filter their every utterance in casual conversation, and many people appear to communicate by email in much the same way. Your article is a good reminder of the need to constantly educate and re-educate our clients — and not just the GC office!
Vicki, thanks for your comment. You’re absolutely right – both about the inherently quicker (and less reflective) nature of email communications, and the fact that younger employees, who have grown up with the technology (the “digital natives”) are less sensitive to the perils of letting emails fly. I believe YouTube’s founders were not long out of college when grappling with these complex copyright issues over email, and the email containing the “steal it, haha” quote was sent at 1 a.m. (according to its timestamp) – not the best time of day for contemplative writing. But that is a reality of doing business in an Internet start-up, and it is part of counsel’s job to find the balance between fostering the development of more disciplined communications practices without stifling the employees or the business itself. Happy 4th!
sound advice, well articulated. Lawyers who advise their clients ahead of time not to engage in foolish behavior may greatly decrease their clientele, but I admire you for working outside the establishment to make life better and simpler for all of us.