CAP: 41012

Dati (in)Disponibili

2010-05-04T15:22:00.000-07:00

12.03.2010 Diego Ghisilieri
Operazione trasparenza e Legge Privacy

L’Operazione Trasparenza fu varata nel maggio 2008 con la pubblicazione sul sito Internet del Ministero per l'Innovazione dei dati relativi al personale, di organigrammi, numero di dirigenti, retribuzioni lorde, telefono, e-mail e curricula dei dirigenti, nonchè dei tassi di assenza per ufficio.
Molte di queste informazioni erano già pubbliche per legge (ai sensi degli artt. 54 D. Lgs. n. 82/2005 e 1, comma 593, Legge n. 296/2006) ma con è con la Legge n. 69/2009 che l’Operazione Trasparenza è stata resa obbligatoria per tutti gli Enti; in particolare, l’art. 21, comma 1, ha previsto che ciascuna Amministrazione
ha l’obbligo di pubblicare nel proprio sito internet le retribuzioni annuali, i curricula vitae, gli indirizzi di posta elettronica e i numeri telefonici ad uso professionale dei dirigenti e dei segretari comunali e provinciali nonché di rendere pubblici, con lo stesso mezzo, i tassi di assenza e di maggiore presenza del personale distinti per uffici di livello dirigenziale.
Diverse Amministrazioni (centrali e locali), con un accorgimento tecnico che riguarda il file robots.txt, impediscono l’indicizzazione delle pagine relative all’Operazione Trasparenza da parte dei motori di ricerca; tale accorgimento, lungi dall’essere nascosto, è poi suggerito in modo “trasparente” sul sito del Ministero in un’apposita pagina dedicata all’applicazione della Legge n. 69/2009. In tanti hanno commentato questa segnalazione, valutando l’accorgimento tecnico relativo al file robots.txt come tentativo di manipolazione volto a frustrare, di fatto, gli obiettivi di trasparenza.
La cautela relativa al file robots.txt appaia assolutamente doverosa al fine di garantire il rispetto della normativa in materia di riservatezza dei dati personali.
Vale la pena di ricordare, infatti, che in corrispondenza dell’avvio dell’Operazione Trasparenza il Garante per la Protezione dei Dati Personali è stato investito di numerosi quesiti. Sul punto – in modo del tutto condivisibile – l’Autorità con Nota del 12 giugno 2008 ha sottolineato la necessità di predisporre
idonei accorgimenti volti a consentire forme proporzionate di consultabilità dei dati, prevedendo in particolare elenchi relativi a singole amministrazioni, consultabili distintamente (anche sulla base di eventuali link a siti web delle amministrazioni medesime), senza che per gli utenti sia possibile modificarli agevolmente o reperire direttamente dati mediante motori di ricerca.
Da un punto di vista giuridico, infatti, la circostanza che un determinato dato sia pubblico non significa che lo stesso possa essere diffuso in modo indiscriminato; sul punto deve necessariamente essere effettuato un contemperamento tra le contrapposte esigenze di conoscenza da parte dei cittadini e quelle di riservatezza dei soggetti cui i dati si riferiscono.
Si tratta di un principio del tutto pacifico in dottrina e affermato in più di un provvedimento dello stesso Garante Privacy.
Alla luce di tali canoni, anche al fine di evitare contenzioso e pretese risarcitorie, le Amministrazioni devono sempre rispettare il principio di proporzionalità sancito dall’art. 11 del Codice Privacy (D. Lgs. n. 196/2003), ponendo attenzione anche al “diritto all’oblio” degli interessati. Infatti, l’indicizzazione dei dati dell’Operazione Trasparenza da parte dei motori di ricerca potrebbe comportare un sacrificio sproporzionato dei diritti dei soggetti cui i dati stessi si riferiscono. Non deve essere sottovalutato che, attraverso i motori di ricerca, potrebbe essere ricostruito un numero ingente di dati riferiti a questi soggetti (più o meno aggiornati e di natura differente) per motivi del tutto diversi da quelli di trasparenza dell’Amministrazione.

Persone:

2010-03-28T06:47:00.000-07:00

Marc Maurer e' il presidente della Federazione Nazionale Ciechi (NFB) la piu' antica e vasta organizzazione di non vedenti negli Stati Uniti. E' Inoltre avvocato specializato in diritto Civile e tematiche relative a tematiche relative alla cecita'.

Alcuni concetti espressi in un suo intervento:

If we let a single characteristic become the identifier of a person, it ensures that our estimate of them will be wrong. Value is measured not by a single characteristic, but by the aggregate of those possessed by each individual. Each characteristic contributes to the whole, and each may strengthen or hinder the person possessing it.

We live in a society in which blindness is thought to be a condition to be repaired. Eyes that cannot see are broken. However, it is false to say that the person who owns them is broken.

We, the blind, do not need to be fixed. We are fine the way we are. We can find our meaning and our purpose without modification or alteration.

I do not believe that blindness and helplessness are synonymous. I carry the cane because it is a tool that helps me travel. It is a tool of my independence, not a badge of my helplessness.

Learning should not be limited to what trains the mind, it should also train the spirit.

Your life belongs to you!

Ascolta il discorso

Viacom Youtube/Google

2010-03-21T02:22:00.000-07:00

source: http://www.nypost.com
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIACOM INTERNATIONAL INC., ET AL,
Plaintiffs,
v.
YOUTUBE, INC., ETAL,
Defendants.
THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, ETAL., on behalf of themselves and all others ECF Case
similarly situated,
Civil No. 07-CV-3582 (LLS)
Plaintiffs,
v.
YOUTUBE, INC., ETAL.,
Defendants.
DECLARATION OF CHAD HURLEY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CHAD HURLEY, pursuant to 28 U.S.C. § 1746, hereby declares as follows:
1. I am one of the three founders of YouTube and its Chief Executive Officer. The following facts are true of my own personal knowledge and if called and sworn as a witness, I could and would testify competently to them.
2. Steve Chen, Jawed Karim and I first discussed the idea of launching a video site in early 2005. The concept we developed for the YouTube website was straightforward. From its earliest days, we intended YouTube to be a platform that would give users a convenient way to share personal videos and build a community around posting and viewing those videos. Users would upload their videos by visiting
ECF Case
Civil No. 07-CV-2103 (LLS)
HIGHLY CONFIDENTIAL
the YouTube website, creating an account, and then selecting a video file from their computer to upload to YouTube's computer servers. Visitors to YouTube would be able to view videos they and others had uploaded to the website. We envisioned YouTube as a free service and it has always been one; it does not charge users to upload or view videos. This vision of YouTube is what we created in 2005 and what exists today, albeit on a scale beyond what we could have ever imagined.
3. At first, we envisioned that users would post homemade videos with a dating focus, like hotornot.com, except with users posting videos of themselves instead of pictures. See Ex. 1 hereto, a true and correct copy of a February 22, 2005 email from Jawed to Steve and me.
4. By the time of the site's beta launch on April 23, 2005, the idea evolved into a more generalized hub for short, personal videos that would cause users to think of us as "the Yahoo of videos" or like "Flickr" (a photo-sharing service) for videos. See Ex. 2 hereto, a true and correct copy an email that I sent April 3, 2005 to Steve and Jawed; Ex. 3 is a true and correct copy of an April 1, 2005 email from Jawed to me and Steve.
5. We wanted users to "feature 'You' in the video ... be creative, be fun, be original, be whatever." The entire focus was on videos that were personally created. See Ex. 4 hereto, a true and correct copy of an April 25, 2005 email from Steve to me and Jawed; Ex. 5 hereto, a true and correct copy of an April 26, 2005 email string among me, Steve, and Jawed ("We are a site that features creative videos from personal users. It can be dating-oriented or creativity-oriented. We will not restrict.").
6. As I wrote in an email to Steve and Jawed, "so we aren't a film site, but a personal video clips site, for people to upload, store, search, and share their personal 2
HIGHLY CONFIDENTIAL
video clips.... I want real people, real videos." See Ex. 6 hereto, a true and correct copy of an email from me to Steve and Jawed dated April 29, 2005.
7. We decided upon the name "YouTube" for our site because we envisioned the site as a destination for users to upload and broadcast videos of themselves. See Ex. 7 hereto, a true and correct copy of an April 17, 2005 email from Jawed to me and Steve ("The videos you upload should be about you (hence, YouTube!")). Our company slogan, "Broadcast Yourself," was also designed to convey the same message; as Steve said, it was a "succinct and exact slogan" for what we wanted the site to be about. See Ex. 8 hereto, an April 25, 2005 email from Steve to Jawed and me.
8. Prior to the launch of YouTube, we decided to reject any videos that
appeared on the site in violation of one of the following rules:
• Video must be about YOU
• Video must be appropriate for all audiences
• Video cannot contain contact information
• No copyrighted material
See Ex. 9 hereto, a true and correct copy of an April 20, 2005 email exchange among Jawed, Steve and me discussing those rules. Further, from its inception, the Terms of Service of the YouTube site, the online agreement covering the service, prohibited users from uploading material that violated the copyrights of others.
9. To encourage users to upload creative videos of themselves on the site, we put an ad on Craigslist (an online classifieds service) seeking people to post videos of themselves meeting two requirements: "a) videos must be interesting! b) videos must be created by you!" See Ex. 10 hereto, a true and correct copy of an April 28, 2005 email from Steve to Jawed and me. Other ads that we put out in those early days focused on 3
HIGHLY CONFIDENTIAL
our slogan, "Broadcast Yourself, and invited users to share videos of personal thoughts, feelings, ideas, and expressions.
10. One user who saw our ads wrote us to say how much she appreciated the YouTube service. The user told us that her son-in-law was serving in Iraq, and her daughter was using YouTube to share videos of the couple's baby with him while he was overseas. I thought this was a great example of what YouTube was all about, and the types of videos that we wanted to see on the site. See Ex. 11 hereto, a true and correct copy of a July 18, 2005 email string among me, Steve, and Jawed where I wrote "this is exactly what I'm targeting, people that will add videos (video bloggers, people looking for free video hosting, etc.) so it's not really to generate traffic .... just good active users." (ellipsis in original).
11. Although we wanted YouTube to offer a wide range of videos and promote free speech, we did not want videos with pornography or unauthorized copyrighted material on the site. See Ex. 12 hereto, a true and correct copy of a April 28, 2005 email from Steve to Jawed and me ("As long as there's no nudity or copyrighted materials, we should NOT be removing videos because it doesn't meet any personal preferences."). Steve felt that "it would be cool" if we could give users reasons for rejecting their videos; "there are three [reasons] I can think of right now: -duplicate video—inappropriate content—copyrighted material." See Ex. 13 hereto, a true and correct copy of a June 29, 2005 email from Steve to Jawed and me.
12. In July 2005, Steve and I had an exchange about a popular video site called filecabi.net that was similar to stupidvideos.com and big-boys.com in that they were all focused on hosting silly or prank-oriented videos. In that exchange, I described our
4
HIGHLY CONFIDENTIAL
vision for what we hoped YouTube would become, and what it in fact did become: "I would really like to build something more valuable and more useful... actually build something that people will talk about and changes the way people use video on the internet." Steve replied: "another thing, still a fundamental difference between us and most of those other sites, we do have a community and it's ALL user generated content." See Ex. 14 hereto, true and correct copy of an email string between me and Steve dated July 29, 2005 (ellipsis in original).
13. In August 2005, we put together a presentation outline for Sequoia Capital, a prominent venture capital firm that expressed interest in funding our company. In that presentation outline, we described our "Company Purpose" as follows: "To become the primary outlet of user-generated video content on the Internet, and to allow anyone to upload, share, and browse this content." See Ex. 15 hereto, a true and correct copy of the Sequoia Capital presentation outline dated August 21, 2005 (emphasis in original).
14. That same month, when my brother Brent Hurley signed on as an employee of YouTube, he sent us an email describing the site as he found it at the time: "I think the 'slices of life' content our users provide is so unique. YouTube is reality TV at its best and most pure form. The database of content already collected amazes me." See Ex. 16, a true and correct copy of an email string among Brent Hurley, me, and other YouTube employees dated August 7, 2005.
15. As the YouTube site began to get more uploads in the summer of 2005, we started to come across situations where we encountered videos uploaded by users that were potentially unauthorized. For example, in one instance, I saw a video that looked like a network television show. Steve, Jawed and I are not lawyers. As a small start-up 5
HIGHLY CONFIDENTIAL
working out of my garage during early and mid-2005, we did not have lawyers to advise us on copyright issues. But we viewed the posting of potentially unauthorized material as a problem, and we agreed that we wanted to put a stop to it. See Ex. 17 hereto, a true and correct copy of a June 26, 2005 email thread among Steve, Jawed and me.
16. As a founder with a significant stake in the company, the last thing I wanted was for it be seen as or to become a haven for infringing or illegal content. The options we envisioned for YouTube were the standard evolutionary paths for a startup: an initial public offering, or acquisition by another company. We all believed that those options would not be available to us if our business was based or dependent upon illegitimate activities.
17.To make sure that is not how the site developed, when we started seeing an uptick in the number of videos uploaded to the site, we adopted a screening process to remove videos that we guessed were unauthorized copyrighted content, and told users that such content was unwelcome. See attached hereto, true and correct copies of emails among Steve, Jawed, and me in July and August 2005: Ex. 18 ("[I] just unapproved and rejected the britney toxic music video."); Ex. 19 ("this guy has a ton of music videos that need to be removed."); Ex. 20 (noting that user uploaded clips from a Hong Kong movie and concluding "I think we should reject all that [stuff]."); Ex. 21 (adding videos for review because "this is blatant copyrighted stuff'). As I put it in response to an inquiry from a user about why a video was rejected: "Yes, I believe this was a music video, right? So, it was rejected because it was copyrighted material. We are trying to build a community of real user-generated content and moving forward we are going to be more proactive about screening videos upfront." See Ex. 22 hereto, a 6
HIGHLY CONFIDENTIAL
true and correct copy of an email I wrote dated July 3, 2005.
18. Despite our efforts, we quickly learned that this screening process was not scalable and was ineffective in identifying unauthorized material. Among other things, we realized that we were regularly making mistakes and taking down videos that actually were authorized and had been uploaded by the content owner. As a result, we ceased engaging in this practice as a general matter.
19. In the meantime, we were devising strategies to encourage users to post authorized material. For example, in the upload process, we added spaces for users to provide the date and place at which they recorded the video they were uploading. We intended that to signal to users that the site was constructed for personal videos that they themselves had recorded. See Ex. 23 hereto, a true and correct copy of a June 26, 2005 email string among Jawed, Steve, Mike Solomon and me.
20. By September 2005, we added a community flagging feature that allowed users to flag inappropriate and unauthorized copyrighted content. See Ex. 24 hereto, a true and correct copy of a September 6, 2005 email from Steve to all YouTube employees. Because we were concerned about ordinary users' ability to determine whether particular videos were uploaded to YouTube with or without permission, and because we were uncertain of the legal implications, we decided to eliminate the community flagging feature for copyright. However, it remained our express policy to actively discourage copyright infringement, to remind users in our standard communications that they needed to own all copyrights to the materials they uploaded to the site, and never to promote or encourage the posting of unauthorized material. See Ex. 25 hereto, a true and correct copy of an email from me to Steve and Jawed
7
HIGHLY CONFIDENTIAL
dated September 25, 2005. ("we should never promote piracy or tell them how to do it. we should respond saying the canned response, you should own all copyrights to the material you upload.").
21. In September 2005, we secured a commitment for our first venture capital investment from Sequoia Capital. We also engaged outside legal counsel to assist us in enhancing our copyright protection efforts on the site. We posted additional information on the site setting forth our prohibition on unauthorized copyrighted material, informed users that posting such materials would result in the termination of their account, and displayed clear instructions to copyright holders on how to provide notice to our designated agent of allegedly unauthorized materials that users had uploaded. Shortly thereafter, we formally registered our agent with the U.S. Copyright Office. See Ex. 26 hereto, a true and correct copy of our agent registration, signed by me, and cover letter.
22. As shown by a description of YouTube that I drafted in October 2005, our
plan for the site continued to center on personal, user-generated video clips. It had
nothing to do with encouraging or capitalizing on copyright infringement:
YouTube is a new service that allows people to easily upload, tag, and share personal video clips. Digital cameras with video recording capability are quickly becoming a commodity consumer technology. As people continue to record more video clips, YouTube will fill the need of quickly distributing their content worldwide.
See Ex. 27 hereto, a true and correct copy of an October 26, 2005 email that I sent to my brother, which encloses this description.
23. YouTube became enormously popular in a short time. At the time YouTube officially launched its service in December 2005, it was receiving more
8
HIGHLY CONFIDENTIAL
than 6,000 new video uploads each day, and its users were watching more than 2.5 million videos each day. By February 2006, the number of uploads had jumped to 20,000 per day, and users were watching more than 18 million videos per day. In the month of July 2006, users uploaded over 2.1 million video clips to the site, and watched more than 3 billion videos. By December 2007, users were uploading more than 300,000 videos each day and site traffic had soared to 800 million daily video views. By July 2008, uploads had reached more than 400,000 per day. See Exs. 28 & 29 hereto, true and correct copies of site statistics for the YouTube service.
24. During this period of rapid growth, we continued to go out of our way to respect the copyrights of content owners. For example, when a "Saturday Night Live" skit entitled "Lazy Sunday" was uploaded to YouTube in December 2005 and drew an enormous amount of views from users, I reached out to NBC to determine whether the video was authorized to be on YouTube. See Ex. 30 hereto, a true and correct copy of the email that I sent to NBC.
25. Although I contacted NBC on December 28, 2005, YouTube did not hear back about NBC's position regarding the video until February 3, 2006, when I received a letter from NBC thanking us for opening a dialogue and asking that YouTube remove the Lazy Sunday video from our website. See Ex. 31 hereto, a true and correct copy of NBC's response to me.
26. YouTube is now the world's fourth largest Internet site. Site traffic on YouTube has soared to over one billion video views per day. Today, more than 24 hours of new video are uploaded to the site every minute—that is almost four years 9
HIGHLY CONFIDENTIAL
Dated: March 3_, 2010
10
worth of new video created every day.
27. Not only have the volume and range of videos uploaded to YouTube exceeded our expectations, but our community of users has too. YouTube users don't just post videos to YouTube and watch videos on YouTube, they interact with one another through YouTube. They form friendships, ask each other questions, invite responses, find organ donors, participate in contests, rally in support of one another, and challenge each other. Our users have used YouTube to create a new model for how individuals, companies, organizations and governments communicate. Its development has been both astonishing and humbling, and it has come without us ever seeking to grow the site or earn revenue from any unauthorized use of copyrighted material.
I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct.

Memo Viacom Youtube/Google

2010-03-21T02:20:00.002-07:00

Source: http://www.nypost.com
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIACOM INTERNATIONAL INC., ET AL,
Plaintiffs,
v.
YOUTUBE, INC., ETAL,
Defendants.
THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, ETAL., on behalf of themselves and all others ECF Case
similarly situated,
Civil No. 07-CV-3582 (LLS)
Plaintiffs,
v.
YOUTUBE, INC., ETAL.,
Defendants.
DECLARATION OF CHAD HURLEY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CHAD HURLEY, pursuant to 28 U.S.C. § 1746, hereby declares as follows:
1. I am one of the three founders of YouTube and its Chief Executive Officer. The following facts are true of my own personal knowledge and if called and sworn as a witness, I could and would testify competently to them.
2. Steve Chen, Jawed Karim and I first discussed the idea of launching a video site in early 2005. The concept we developed for the YouTube website was straightforward. From its earliest days, we intended YouTube to be a platform that would give users a convenient way to share personal videos and build a community around posting and viewing those videos. Users would upload their videos by visiting
ECF Case
Civil No. 07-CV-2103 (LLS)
HIGHLY CONFIDENTIAL
the YouTube website, creating an account, and then selecting a video file from their computer to upload to YouTube's computer servers. Visitors to YouTube would be able to view videos they and others had uploaded to the website. We envisioned YouTube as a free service and it has always been one; it does not charge users to upload or view videos. This vision of YouTube is what we created in 2005 and what exists today, albeit on a scale beyond what we could have ever imagined.
3. At first, we envisioned that users would post homemade videos with a dating focus, like hotornot.com, except with users posting videos of themselves instead of pictures. See Ex. 1 hereto, a true and correct copy of a February 22, 2005 email from Jawed to Steve and me.
4. By the time of the site's beta launch on April 23, 2005, the idea evolved into a more generalized hub for short, personal videos that would cause users to think of us as "the Yahoo of videos" or like "Flickr" (a photo-sharing service) for videos. See Ex. 2 hereto, a true and correct copy an email that I sent April 3, 2005 to Steve and Jawed; Ex. 3 is a true and correct copy of an April 1, 2005 email from Jawed to me and Steve.
5. We wanted users to "feature 'You' in the video ... be creative, be fun, be original, be whatever." The entire focus was on videos that were personally created. See Ex. 4 hereto, a true and correct copy of an April 25, 2005 email from Steve to me and Jawed; Ex. 5 hereto, a true and correct copy of an April 26, 2005 email string among me, Steve, and Jawed ("We are a site that features creative videos from personal users. It can be dating-oriented or creativity-oriented. We will not restrict.").
6. As I wrote in an email to Steve and Jawed, "so we aren't a film site, but a personal video clips site, for people to upload, store, search, and share their personal 2
HIGHLY CONFIDENTIAL
video clips.... I want real people, real videos." See Ex. 6 hereto, a true and correct copy of an email from me to Steve and Jawed dated April 29, 2005.
7. We decided upon the name "YouTube" for our site because we envisioned the site as a destination for users to upload and broadcast videos of themselves. See Ex. 7 hereto, a true and correct copy of an April 17, 2005 email from Jawed to me and Steve ("The videos you upload should be about you (hence, YouTube!")). Our company slogan, "Broadcast Yourself," was also designed to convey the same message; as Steve said, it was a "succinct and exact slogan" for what we wanted the site to be about. See Ex. 8 hereto, an April 25, 2005 email from Steve to Jawed and me.
8. Prior to the launch of YouTube, we decided to reject any videos that
appeared on the site in violation of one of the following rules:
• Video must be about YOU
• Video must be appropriate for all audiences
• Video cannot contain contact information
• No copyrighted material
See Ex. 9 hereto, a true and correct copy of an April 20, 2005 email exchange among Jawed, Steve and me discussing those rules. Further, from its inception, the Terms of Service of the YouTube site, the online agreement covering the service, prohibited users from uploading material that violated the copyrights of others.
9. To encourage users to upload creative videos of themselves on the site, we put an ad on Craigslist (an online classifieds service) seeking people to post videos of themselves meeting two requirements: "a) videos must be interesting! b) videos must be created by you!" See Ex. 10 hereto, a true and correct copy of an April 28, 2005 email from Steve to Jawed and me. Other ads that we put out in those early days focused on 3
HIGHLY CONFIDENTIAL
our slogan, "Broadcast Yourself, and invited users to share videos of personal thoughts, feelings, ideas, and expressions.
10. One user who saw our ads wrote us to say how much she appreciated the YouTube service. The user told us that her son-in-law was serving in Iraq, and her daughter was using YouTube to share videos of the couple's baby with him while he was overseas. I thought this was a great example of what YouTube was all about, and the types of videos that we wanted to see on the site. See Ex. 11 hereto, a true and correct copy of a July 18, 2005 email string among me, Steve, and Jawed where I wrote "this is exactly what I'm targeting, people that will add videos (video bloggers, people looking for free video hosting, etc.) so it's not really to generate traffic .... just good active users." (ellipsis in original).
11. Although we wanted YouTube to offer a wide range of videos and promote free speech, we did not want videos with pornography or unauthorized copyrighted material on the site. See Ex. 12 hereto, a true and correct copy of a April 28, 2005 email from Steve to Jawed and me ("As long as there's no nudity or copyrighted materials, we should NOT be removing videos because it doesn't meet any personal preferences."). Steve felt that "it would be cool" if we could give users reasons for rejecting their videos; "there are three [reasons] I can think of right now: -duplicate video—inappropriate content—copyrighted material." See Ex. 13 hereto, a true and correct copy of a June 29, 2005 email from Steve to Jawed and me.
12. In July 2005, Steve and I had an exchange about a popular video site called filecabi.net that was similar to stupidvideos.com and big-boys.com in that they were all focused on hosting silly or prank-oriented videos. In that exchange, I described our
4
HIGHLY CONFIDENTIAL
vision for what we hoped YouTube would become, and what it in fact did become: "I would really like to build something more valuable and more useful... actually build something that people will talk about and changes the way people use video on the internet." Steve replied: "another thing, still a fundamental difference between us and most of those other sites, we do have a community and it's ALL user generated content." See Ex. 14 hereto, true and correct copy of an email string between me and Steve dated July 29, 2005 (ellipsis in original).
13. In August 2005, we put together a presentation outline for Sequoia Capital, a prominent venture capital firm that expressed interest in funding our company. In that presentation outline, we described our "Company Purpose" as follows: "To become the primary outlet of user-generated video content on the Internet, and to allow anyone to upload, share, and browse this content." See Ex. 15 hereto, a true and correct copy of the Sequoia Capital presentation outline dated August 21, 2005 (emphasis in original).
14. That same month, when my brother Brent Hurley signed on as an employee of YouTube, he sent us an email describing the site as he found it at the time: "I think the 'slices of life' content our users provide is so unique. YouTube is reality TV at its best and most pure form. The database of content already collected amazes me." See Ex. 16, a true and correct copy of an email string among Brent Hurley, me, and other YouTube employees dated August 7, 2005.
15. As the YouTube site began to get more uploads in the summer of 2005, we started to come across situations where we encountered videos uploaded by users that were potentially unauthorized. For example, in one instance, I saw a video that looked like a network television show. Steve, Jawed and I are not lawyers. As a small start-up 5
HIGHLY CONFIDENTIAL
working out of my garage during early and mid-2005, we did not have lawyers to advise us on copyright issues. But we viewed the posting of potentially unauthorized material as a problem, and we agreed that we wanted to put a stop to it. See Ex. 17 hereto, a true and correct copy of a June 26, 2005 email thread among Steve, Jawed and me.
16. As a founder with a significant stake in the company, the last thing I wanted was for it be seen as or to become a haven for infringing or illegal content. The options we envisioned for YouTube were the standard evolutionary paths for a startup: an initial public offering, or acquisition by another company. We all believed that those options would not be available to us if our business was based or dependent upon illegitimate activities.
17.To make sure that is not how the site developed, when we started seeing an uptick in the number of videos uploaded to the site, we adopted a screening process to remove videos that we guessed were unauthorized copyrighted content, and told users that such content was unwelcome. See attached hereto, true and correct copies of emails among Steve, Jawed, and me in July and August 2005: Ex. 18 ("[I] just unapproved and rejected the britney toxic music video."); Ex. 19 ("this guy has a ton of music videos that need to be removed."); Ex. 20 (noting that user uploaded clips from a Hong Kong movie and concluding "I think we should reject all that [stuff]."); Ex. 21 (adding videos for review because "this is blatant copyrighted stuff'). As I put it in response to an inquiry from a user about why a video was rejected: "Yes, I believe this was a music video, right? So, it was rejected because it was copyrighted material. We are trying to build a community of real user-generated content and moving forward we are going to be more proactive about screening videos upfront." See Ex. 22 hereto, a 6
HIGHLY CONFIDENTIAL
true and correct copy of an email I wrote dated July 3, 2005.
18. Despite our efforts, we quickly learned that this screening process was not scalable and was ineffective in identifying unauthorized material. Among other things, we realized that we were regularly making mistakes and taking down videos that actually were authorized and had been uploaded by the content owner. As a result, we ceased engaging in this practice as a general matter.
19. In the meantime, we were devising strategies to encourage users to post authorized material. For example, in the upload process, we added spaces for users to provide the date and place at which they recorded the video they were uploading. We intended that to signal to users that the site was constructed for personal videos that they themselves had recorded. See Ex. 23 hereto, a true and correct copy of a June 26, 2005 email string among Jawed, Steve, Mike Solomon and me.
20. By September 2005, we added a community flagging feature that allowed users to flag inappropriate and unauthorized copyrighted content. See Ex. 24 hereto, a true and correct copy of a September 6, 2005 email from Steve to all YouTube employees. Because we were concerned about ordinary users' ability to determine whether particular videos were uploaded to YouTube with or without permission, and because we were uncertain of the legal implications, we decided to eliminate the community flagging feature for copyright. However, it remained our express policy to actively discourage copyright infringement, to remind users in our standard communications that they needed to own all copyrights to the materials they uploaded to the site, and never to promote or encourage the posting of unauthorized material. See Ex. 25 hereto, a true and correct copy of an email from me to Steve and Jawed
7
HIGHLY CONFIDENTIAL
dated September 25, 2005. ("we should never promote piracy or tell them how to do it. we should respond saying the canned response, you should own all copyrights to the material you upload.").
21. In September 2005, we secured a commitment for our first venture capital investment from Sequoia Capital. We also engaged outside legal counsel to assist us in enhancing our copyright protection efforts on the site. We posted additional information on the site setting forth our prohibition on unauthorized copyrighted material, informed users that posting such materials would result in the termination of their account, and displayed clear instructions to copyright holders on how to provide notice to our designated agent of allegedly unauthorized materials that users had uploaded. Shortly thereafter, we formally registered our agent with the U.S. Copyright Office. See Ex. 26 hereto, a true and correct copy of our agent registration, signed by me, and cover letter.
22. As shown by a description of YouTube that I drafted in October 2005, our
plan for the site continued to center on personal, user-generated video clips. It had
nothing to do with encouraging or capitalizing on copyright infringement:
YouTube is a new service that allows people to easily upload, tag, and share personal video clips. Digital cameras with video recording capability are quickly becoming a commodity consumer technology. As people continue to record more video clips, YouTube will fill the need of quickly distributing their content worldwide.
See Ex. 27 hereto, a true and correct copy of an October 26, 2005 email that I sent to my brother, which encloses this description.
23. YouTube became enormously popular in a short time. At the time YouTube officially launched its service in December 2005, it was receiving more
8
HIGHLY CONFIDENTIAL
than 6,000 new video uploads each day, and its users were watching more than 2.5 million videos each day. By February 2006, the number of uploads had jumped to 20,000 per day, and users were watching more than 18 million videos per day. In the month of July 2006, users uploaded over 2.1 million video clips to the site, and watched more than 3 billion videos. By December 2007, users were uploading more than 300,000 videos each day and site traffic had soared to 800 million daily video views. By July 2008, uploads had reached more than 400,000 per day. See Exs. 28 & 29 hereto, true and correct copies of site statistics for the YouTube service.
24. During this period of rapid growth, we continued to go out of our way to respect the copyrights of content owners. For example, when a "Saturday Night Live" skit entitled "Lazy Sunday" was uploaded to YouTube in December 2005 and drew an enormous amount of views from users, I reached out to NBC to determine whether the video was authorized to be on YouTube. See Ex. 30 hereto, a true and correct copy of the email that I sent to NBC.
25. Although I contacted NBC on December 28, 2005, YouTube did not hear back about NBC's position regarding the video until February 3, 2006, when I received a letter from NBC thanking us for opening a dialogue and asking that YouTube remove the Lazy Sunday video from our website. See Ex. 31 hereto, a true and correct copy of NBC's response to me.
26. YouTube is now the world's fourth largest Internet site. Site traffic on YouTube has soared to over one billion video views per day. Today, more than 24 hours of new video are uploaded to the site every minute—that is almost four years 9
HIGHLY CONFIDENTIAL
Dated: March 3_, 2010
10
worth of new video created every day.
27. Not only have the volume and range of videos uploaded to YouTube exceeded our expectations, but our community of users has too. YouTube users don't just post videos to YouTube and watch videos on YouTube, they interact with one another through YouTube. They form friendships, ask each other questions, invite responses, find organ donors, participate in contests, rally in support of one another, and challenge each other. Our users have used YouTube to create a new model for how individuals, companies, organizations and governments communicate. Its development has been both astonishing and humbling, and it has come without us ever seeking to grow the site or earn revenue from any unauthorized use of copyrighted material.
I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct.
HIGHLY CONFIDENTIAL FILED UNDER SEAL
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VIACOM INT'L INC., ET AL.,
Plaintiffs,
v.
YOUTUBE, INC., ET AL.,
Defendants.
THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, ET AL, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
YOUTUBE, INC, ET AL,
Defendants.
ECF Case
Civil No. 07-CV-2103 (LLS)
ECF Case
Civil No. 07-CV-3582 (LLS)
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
David H. Kramer Maura L. Rees Michael H. Rubin Bart E. Volkmer
Wilson Sonsini Goodrich & Rosati PC
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
Andrew H. Schapiro A. John P. Mancini Matthew D. Ingber Brian M. Willen Mayer Brown LLP 1675 Broadway New York, New York 10019 (212) 506-2500
Attorneys for Defendants
TABLE OF CONTENTS
INTRODUCTION.........................................................................................................1
FACTUAL AND LEGAL BACKGROUND..................................................................4
A. YouTube.......................................................................................................4
1. How YouTube Works..........................................................................4
2. The Quantity And Diversity Of Videos Available On YouTube........5
3. YouTube's Extensive Efforts To Help Copyright Owners.................9
B. Viacom........................................................................................................11
C. The Putative Class Plaintiffs....................................................................13
D. The Clips In Suit........................................................................................14
E. The DMCA Safe-Harbor Provisions..........................................................16
SUMMARY OF ARGUMENT....................................................................................19
ARGUMENT...............................................................................................................21
I. THE DMCA SAFE HARBOR PROTECTS YOUTUBE AGAINST LIABILITY FOR ALL OF PLAINTIFFS' CLAIMS..............................................................21
A. YouTube Meets The Threshold Qualifications For Safe-Harbor Protection...................................................................................................21
1. YouTube Is A "Service Provider"......................................................22
2. YouTube Has Registered A Designated DMCA Agent....................22
3. YouTube Has Adopted And Implemented An Appropriate Repeat-Infringer Policy.....................................................................23
a. YouTube Has Adopted An Appropriate Repeat-Infringer Policy.........................................................................................23
b. YouTube Informs Its Users Of Its Repeat-Infringer Policy.........................................................................................24
c. YouTube Implements Its Policy In A Reasonable Manner.....24
4. YouTube Accommodates Standard Technical Measures.................26
B. Plaintiffs' Claims Involve "Storage At The Direction Of A User"............27
1. YouTube Stores And Streams Videos Through Automated Processes Initiated By Users............................................................27
2. Section 512(c) Protects Services That Have Automated Processes To Facilitate User Access To Stored Material................28
i
Page
TABLE OF CONTENTS
(continued)
Page
C. YouTube Did Not Have Knowledge Of The Alleged Infringements And Responded Expeditiously To Takedown Notices For The Cups
In Suit........................................................................................................30
1. Plaintiffs Have The Burden Of Showing That YouTube Had Knowledge Of The Specific Infringing Activity That They
Allege.................................................................................................31
2. YouTube Did Not Have Actual Knowledge Of The Alleged Infringements....................................................................................32
3. There Are No Facts Or Circumstances Known To YouTube
From Which The Alleged Infringements Were "Apparent".............33
a. There Is No Evidence That YouTube Was Actually Aware Of Any Supposed "Red Flags"......................................33
b. Plaintiffs' Clips In Suit Cannot Be "Red Flags"......................35
(i) It Would Not Have Been Apparent What Many Of The Clips In Suit Even Were, Much Less That They Were Infringing................................................................37
(ii) Viacom's Extensive And Varied Use Of YouTube For Marketing Negates Any Argument That The Appearance Of Viacom Content Indicates "Obvious" Infringing Activity...........................................................39
(iii) Viacom's "Leave Up" Practices Further Undermine Any Argument That The Presence Of Its Material
Is A "Red Flag" ................................................................45
(iv) The Array Of Authorized Uses Of And Complex Ownership Issues Surrounding Plaintiffs' Works Defeats Any Claim That YouTube Had Disqualifying Knowledge.................................................49
(v) Fair Use And De Minimis Use Further Negate Plaintiffs' Ability To Show Knowledge............................53
4. YouTube Responded Expeditiously Upon Receiving Notice Of
The Claimed Infringements..............................................................55
D. YouTube Lacks The Ability To Control The Alleged Infringing Activity.......................................................................................................58
1. YouTube's Control Over Its System Does Not Give It Control
Over Infringing Activity...................................................................58
ii
TABLE OF CONTENTS
(continued)
Pag
2. Legal And Practical Considerations Defeat Any Claim That YouTube Could Control The Infringing Activity By More Actively Policing Its Service.........................................................
a. The Control Test Does Not Require Service Providers To Monitor Their Services For Potential Infringement...........
b. Plaintiffs' Own Inability To Distinguish Authorized From Unauthorized Material On YouTube Shows That YouTube Lacks Practical Control Over The Alleged Infringing Activity................................................................
(i) Plaintiffs Have Had Persistent Difficulties Determining Which Of Their Materials Are Authorized To Be On YouTube....................................
(ii) Even In This Litigation, Viacom Has Been Unable To Reliably Distinguish Authorized From Unauthorized Clips......................................................
(iii) The Class Plaintiffs Similarly Have Had Difficulties Distinguishing Authorized From Unauthorized Content.................................................
3. Any Infringing Activity Occurs Despite YouTube's Extraordinary Efforts To Combat Infringement.........................
YouTube Did Not Receive A Financial Benefit Directly Attributable To The Alleged Infringing Activity..................................
1. The DMCA Protects Legitimate Services That Derive Their Value From Sources Other Than Infringement...........................
2. YouTube Has A Legitimate Business Model...............................
a. YouTube Has An Overwhelming Array Of Legitimate Uses That Provide Significant Value To YouTube And Its Users................................................................................
b. YouTube Earns Revenue From Advertising, Not Infringement.........................................................................
c. A Service Provider That Accepts User-Submitted Content Does Not Derive A Disabling Financial Benefit By Running Ads On Its Site.................................................
iii
TABLE OF CONTENTS
(continued)
Page
II. YOUTUBE IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' INDUCEMENT CLAIMS..................................................................................78
A. As A DMCA-Compliant Service Provider, YouTube Is Protected Against Damages For All Forms Of Alleged Infringement.....................79
B. Even Without Regard To The DMCA, Plaintiffs' Inducement Claims Fail As A Matter Of Law..............................................................80
1. Grokster Requires A Showing That The Service Provider Specifically Intended To Encourage Third-Party Infringements....................................................................................80
2. YouTube Is Not An Inducer of Infringement...................................84
a. YouTube Never Encouraged Third Parties To Infringe..........85
b. YouTube Is Filled With Non-Infringing Materials.................89
c. YouTube Protects The Interests Of Copyright Holders..........91
d. YouTube's Revenue Model Is Legitimate................................96
e. Plaintiffs' Own Actions Demonstrate YouTube's Legitimacy................................................................................97
CONCLUSION..........................................................................................................100
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Abilene Music, Inc. v. Sony Music Entm't, Inc.,
320 F. Supp. 2d 84 (S.D.N.Y. 2003).......................................................................53
Arista Records LLC v. Usenet.com, Inc.,
633 F. Supp. 2d 124 (S.D.N.Y. 2009).....................................................................82
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006)....................................................................................53
Citizens United v. Federal Election Com'n,
130 S. Ct. 876 (2010)................................................................................................6
Columbia Pictures Indus., Inc. v. Fung,
No. 06-CV-5578 (SVW), 2009 U.S. Dist. LEXIS 122661 (CD. Cal. Dec. 21,
2009)........................................................................................................................83
Corbis Corp. v. Amazon.com, Inc.,
351 F. Supp. 2d 1090 (W.D. Wash. 2004).......................................................passim
Costar Group, Inc. v. Loopnet, Inc.,
164 F. Supp. 2d 688 (D. Md. 2001),
aff'd, 373 F.3d 544 (4th Cir. 2004)...................................................................28, 72
Ellison v. Robertson,
357 F.3d 1072 (9th Cir. 2004).......................................................................... 16, 23
Faulkner v. Nat'l Geographic Society,
211 F. Supp. 2d 450 (S.D.N.Y. 2002).....................................................................52
Hendrickson v. eBay, Inc.,
165 F. Supp. 2d 1082 (CD. Cal. 2001)................................................. 17, 22, 31, 59
Io Group, Inc. v. Veoh Network, Inc.,
586 F. Supp. 2d 1132 (N.D. Cal. 2008)...........................................................passim
Jasper v. Sony Music Entm't, Inc.,
378 F. Supp. 2d 334 (S.D.N.Y. 2005).....................................................................52
KBL Corp. v. Arnouts,
646 F. Supp. 2d 335 (S.D.N.Y. 2009).....................................................................79
Leiboviftz v. Paramount Pictures Corp.,
948 F. Supp. 1214 (S.D.N.Y. 1996)........................................................................53
v
TABLE OF AUTHORITIES
(continued)
Page(s)
vi
Maxtone-Graham v. Burtchaell,
803 F.2d 1253 (2d Cir. 1986)..................................................................................53
MGM Studios, Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005).........................................................................................passim
MGM Studios, Inc. v. Grokster, Ltd.,
454 F. Supp. 2d 966 (CD. Cai. 2006) ('Grokster IF)................................81, 85, 89
Monotype Imaging, Inc. v. Bitstream, Inc.,
376 F. Supp. 2d 877 (N.D. 111. 2005)......................................................................84
On Davis v. Gap, Inc.,
246 F.3d 152 (2d Cir. 2001)....................................................................................53
Perfect 10, Inc. v. Amazon,
CV-05-4753, slip op. (CD. Cai. Nov. 4, 2008)........................................................31
Perfect 10, Inc. v. CCBill, LLC,
340 F. Supp. 2d 1077 (CD. Cai. 2004).............................................................23, 73
Perfect 10, Inc. v. Visalnt'l Serv. Ass'n.,
494 F.3d 788 (9th Cir. 2007)..................................................................................83
PerfectlO, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007).......................................................................... 16, 19
PerfectlO, Inc. v. CCBill LLC,
488 F.3d 1102 (9th Cir. 2007).........................................................................passim
Powerex Corp. v. Reliant Energy Servs., Inc.,
551 U.S. 224 (2007)................................................................................................36
Shapiro, Bernstein & Co. v. H. L. Green Co.,
316 F.2d 304 (2d Cir. 1963)....................................................................................72
UMG Recordings, Inc. v. Veoh Networks, Inc.,
620 F. Supp. 2d 1081 (CD. Cai. 2008) ('UMGF).................................3, 28, 29, 30
UMG Recordings, Ine v. Veoh Networks, Inc.,
665 F. Supp. 2d 1099 (CD. Cai. 2009) ('UMGIF)........................................passim
TABLE OF AUTHORITIES
(continued)
Page(s)
STATUTES
Fed. R. Civ. P. 56(c).....................................................................................................21
17U.S.C. § 107.............................................................................................................53
17 U.S.C. § 512 et seq............................................................................................passim
OTHER AUTHORITIES
3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 12B.04[A][2][b] (2008).........................................................................................73
H.R. Rep. 105-551 (July 22, 1998)........................................................................passim
S. Rep. 105-190 (May 11, 1998)............................................................................passim
vii
Defendants YouTube, Inc, YouTube, LLC, and Google Inc. ("YouTube") submit this memorandum of law in support of YouTube's motion for summary judgment. YouTube seeks a ruling: (1) that it is protected by the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. ("DMCA"), for all of plaintiffs' direct and secondary copyright infringement claims; and (2) granting YouTube summary judgment on plaintiffs' claims for contributory infringement based on the theory of inducement.
INTRODUCTION
Congress laid the legal foundation for the modern Internet era when it enacted the DMCA in 1998, protecting online services from liability for copyright infringement claims based on their users' actions. Congress recognized that robust online communications would be chilled if service providers faced unlimited damages claims based on material that their users posted or transmitted. The DMCA thus created a set of "safe harbors" immunizing service providers who respond properly to copyright holders' notifications of alleged infringement. That policy choice enabled the evolution of a new generation of websites devoted to user-generated content, letting individuals the world over express themselves and form new communities through blog posts, social networks, photography, and video.
YouTube, a free online platform for users to post their videos or watch videos posted by others, has flourished because of the DMCA. Since its founding in 2005, YouTube has had a profound impact on culture, politics, and society in this country and around the world. YouTube has afforded political candidates and elected officials a new way to communicate with the public; enabled first-hand reporting
from war zones and from inside repressive regimes; allowed unknown performers, filmmakers, and artists to rise to worldwide fame; inspired laughter at the antics of dancing babies and skateboarding dogs; let students of all ages audit classes at leading universities; and given creators of all sorts a powerful new way to promote their work to a global audience.
Plaintiffs' lawsuits seek to undo all of that. Plaintiffs demand billions of dollars from YouTube because a tiny fraction (less than two one-hundredths of a percent) of the videos that users have uploaded to the service allegedly infringe their copyrights. While plaintiffs now insist that YouTube is liable because it should have recognized that their content was not authorized, plaintiffs' own actions defeat that claim. Plaintiffs (along with their agents and licensees) have overtly and covertly uploaded to YouTube a vast array of their own video clips for marketing purposes. Plaintiffs have also deliberately allowed clips uploaded by others to remain on YouTube for the same reason, when they could have removed those clips with the click of a button. Remarkably, some of the very clips that plaintiffs previously authorized to be on YouTube are among those that plaintiffs have sued YouTube for hosting. And, while plaintiffs allege in their legal filings that YouTube is some kind of "pirate" site, behind the scenes Viacom thought so highly of YouTube that it tried, unsuccessfully, to buy it.
Plaintiffs' legal claims are contrary not only to their own actions, but also to established law. Section 512(c) of the DMCA sets out the safe harbor applicable to Internet sites hosting user-submitted content. YouTube, which has pioneered
2
efforts to protect copyright while maintaining an open environment for creative, political, and personal expression, is exactly the kind of service that Section 512(c) was enacted to protect. At the heart of the safe harbor is a notice-and-takedown procedure that requires cooperation between content owners and service providers. To claim the safe harbor, a service provider like YouTube must remove purportedly infringing materials when notified of their existence and location on its service. This regime gives copyright holders a quick and efficient way to stop any misuse of their content, while protecting service providers against the fear of crushing liability that could stifle technological innovation and free speech. In this way, the DMCA balances the interests of copyright holders with those of online services and the First Amendment rights of their users.
Summary judgment is warranted because the material facts bearing on YouTube's safe-harbor eligibility are not in dispute and the law is clear. In particular, a trio of recent decisions has held on summary judgment that a video-hosting service operating almost exactly like YouTube qualifies for the protections of Section 512(c): Io Group, Inc. v. Veoh Network, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008); UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081 (CD. Cal. 2008) ('UMG F); UMG Recordings, Inc v. Veoh Networks, Inc., 665 F. Supp. 2d 1099 (CD. Cal. 2009) ('UMG IF). Those well reasoned decisions apply squarely to this case. YouTube is entitled to safe-harbor protection against all of plaintiffs' direct and secondary infringement claims, including their claims for "inducement" liability. YouTube is also independently entitled to summary judgment on the
3
plaintiffs' inducement claims because the undisputed evidence establishes that YouTube is worlds away from the type of illegitimate site deliberately designed to encourage infringement that the Supreme Court described in MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). To the contrary, YouTube is a quintessential forum for free expression and artistic creation.
FACTUAL AND LEGAL BACKGROUND A. YouTube
Chad Hurley, Steve Chen, and Jawed Karim, friends and former co-workers at the online-payment company PayPal, conceived of the idea for YouTube in February 2005. On April 23, 2005, the founders launched the "beta" (or testing) version of the website. Decl. of Chad Hurley in Support of Defs.' Motion for Summary Judgment ("Hurley Decl.") If 4. On December 14, 2005, YouTube moved out of the "beta" stage of development and officially launched its website. Id. If 23. YouTube was named Time Magazine's "Invention of the Year" for 2006. Decl. of Andrew H. Schapiro in Support of Defs.' Motion for Summary Judgment ("Schapiro Decl.") Ex. I.1 In November of that year, Google acquired YouTube. YouTube has continued to innovate and grow, but its basic operations have remained the same: users upload short videos to YouTube, which stores those videos so that they can be seen by viewers around the world.
1. How YouTube works
The videos available for viewing on YouTube—including those at issue in this
case—are uploaded by YouTube's millions of users, who range from families posting 1 Exhibits to the Schapiro Declaration are referred to herein as "Schapiro Ex._."
4
their home movies to the largest movie and television studios posting clips for promotional purposes. Decl. of Hunter Walk in Support of Defs.' Motion for Summary Judgment ("Walk Decl.") If 3; Decl. of Michael Solomon in Support of Defs.' Motion for Summary Judgment ("Solomon Decl.") If 5. A user uploads a video by visiting the YouTube website, creating an account, and then selecting a video file from the user's computer to upload and store on YouTube's computer servers. Id. 1 3. Uploaded video files are automatically processed by YouTube's system into various formats that are stored in such a way that anyone with Internet access can view them, whether from a personal computer or a mobile device like Apple's iPhone. Id. TfTf 6-7. YouTube does not charge users either to upload or view videos. Hurley Decl. If 2. YouTube generates revenue to help offset the cost of hosting and streaming of videos by allowing advertising to be displayed on certain pages of its website. Decl. of Suzanne Reider in Support of Defs.' Motion for Summary Judgment ("Reider Decl.") 1 3.
2. The quantity and diversity of videos available on YouTube YouTube contains an astonishing range of videos. Any attempt to summarize
the breadth and diversity of what YouTube's users have created and posted is necessarily inadequate. (Although it only scratches the surface, a short video called "This Is YouTube," which can be found at http://www.youtube.com/watch? v=ojqWclLQOxk and is also attached to this brief, provides a useful introduction to the array of creative and inspiring material found on YouTube. See Schapiro Ex. 2.)
YouTube's users have filled the service with personal videos of endless variety: from amateur dance and comedy routines to raw video footage taken on the
5
streets of Tehran as the Iranian government clashed with students; from clips of cats playing the piano to instructional videos teaching people how to fix a leaky faucet or bake a chocolate cake. Walk Decl. H 9, 14, 20. While many of these videos are homemade using amateur equipment, YouTube has also become a platform for aspiring artists and filmmakers, who have posted their own short films that are professional in quality if not in budget. Id. If 16.
YouTube is a prominent source of political information. Cf. Citizens United v. Federal Election Com'n, 130 S. Ct. 876, 917 (2010) (describing potential impact of campaign finance law on "movies, television comedies, or skits onYoutube.com"). To give just a few examples: (1) during the 2008 election, all the major candidates for President posted videos to YouTube; (2) in two of the 2008 presidential debates, Americans were able to pose questions directly to the candidates through videos uploaded to YouTube; (3) the White House posts a weekly video address on YouTube, and the President recently sat down for an interview in which he answered questions from ordinary people submitted through YouTube, an event described in the New York Times as "the 21st century equivalent of Roosevelt's fireside chats"; (4) the 111th Congress created a "hub" on YouTube for members of the House and Senate to post videos about the issues of the day, and hundreds of members of Congress have set up their own channels on YouTube. Walk Decl. If 6.
For efforts like these, John McCain's presidential campaign congratulated YouTube for its "groundbreaking contributions" to the democratic process: "By providing a platform for political candidates and the American public to post, view,
6
share, discuss, comment on, mash-up, re-mix, and argue over campaign-related videos, YouTube has played a prominent and overwhelmingly positive role in the 2008 election." Decl. of Zahavah Levine ("Levine Decl.") 1 29 & Ex. 13.
The embrace of YouTube by official bodies extends far beyond our shores. The Vatican, the Iraqi government, the Kremlin and heads of state from Israel to South Korea to Estonia have each established dedicated YouTube channels through which they regularly upload videos. Walk Decl. If 8. So have the Queen of England and the United Nations. Id. Leading colleges and universities, including Yale, Stanford, Cambridge, and the University of Michigan, have posted tens of thousands of video lectures on every academic subject imaginable. Id. If 12. Students seeking admission to those colleges, and colleges seeking to recruit students, have likewise turned to YouTube. Id. If 13. Nonprofit organizations such as the American Red Cross and the World Food Program use YouTube to publicize their causes, including relief efforts following the Haiti earthquake, the plight of endangered animals, and child malnutrition. Id. If 10. And law enforcement officials have posted videos to YouTube seeking the public's help in identifying criminal suspects. Id. If 19.
To complement this already vast library of videos, YouTube has negotiated content partnerships with a host of media companies and other copyright holders. Decl. of Christopher Maxcy in Support of Defs.' Motion for Summary Judgment ("Maxcy Decl.") If 9. Hundreds of television and movie studios (including CBS, NBC/Universal, BBC, and Lions Gate); sports teams and leagues (including the
7
NBA and NHL); all of the major record labels (Universal Music Group, Sony Music, Warner Music Group, and EMD and music publishers have embraced YouTube's service through partnership agreements. Id. If 9. Under such arrangements, these companies make their content available to YouTube users either by uploading it directly or by "claiming" videos containing their material that other YouTube users have posted. Id. If 10. Even without such express partnerships, many professional content owners—including plaintiffs themselves—routinely post their material on YouTube for promotional or other purposes and authorize marketing agencies and licensees to do the same. See Section I.C.3.b.ii-iv, infra. YouTube's growth has been swift:
• At the time YouTube officially launched its service in December 2005, it was receiving more than 6,000 new video uploads each day, and its users were watching more than 2.5 million videos each day.
• By February 2006, the number of uploads had increased to 20,000 per day, and users were watching more than 18 million videos per day.
• In the month of July 2006, users uploaded over 2.1 million video clips to the site, and watched a total of more than 3 billion videos.
• By December 2007, users were uploading more than 300,000 videos each day and site traffic had soared to 800 million daily video views.
• By July 2008, uploads had reached more than 400,000 per day.
See Hurley Decl. If 23 & Exs. 28, 29. In the nearly five years that the site has been
in existence, over 500 million videos have been posted on YouTube. Levine Decl. 1 26. Today, more than 24 hours of new video is uploaded every minute; to watch all the video uploaded to YouTube in a single day would take a person four years watching around the clock. Hurley Decl. If 26.
8
3. YouTube's extensive efforts to help copyright owners Although YouTube cannot control what its tens of millions of users post to
the service each day, since its early days YouTube has taken numerous steps to
deter users from uploading unauthorized copyrighted material and to assist content
owners in policing their copyrights. YouTube has, among other things: (1) required
users to agree to terms of use that explicitly prohibit them from submitting
copyrighted material that they are not authorized to upload; (2) provided a
"Copyright Tips" page to help users understand the basics of copyright law; (3)
repeatedly reminded users, via multiple messages displayed each time they upload
a clip, that they are prohibited from uploading copyrighted content unless they have
the right to do so; (4) imposed a 10-minute limit for most videos submitted by
ordinary users to prevent the posting of full-length television shows and feature
films; (5) registered a DMCA agent to receive notices from copyright holders of
alleged infringement; (6) expeditiously removed allegedly infringing materials upon
receiving such notices; (7) terminated and blocked the accounts of users suspected
to be repeat infringers; and (8) maintained a dedicated team of employees on call
around the clock to assist copyright owners in removing unauthorized material;
Levine Decl. H 5-10, 12, 14, 17-19; Hurley Decl. H 20-21.
YouTube also makes available various technological measures to help content
owners protect their rights. As YouTube has grown, its copyright tools have become
more sophisticated. In early 2006, YouTube rolled out an easy-to-use tool that
enables copyright holders to search for videos, mark those that allegedly infringe,
and request their removal with the click of a button, rather than having to prepare
9
individual paper or email DMCA notices. Levine Decl. If 18. At around the same time, YouTube deployed "hashing" technology that creates a unique digital signature for each video removed in response to DMCA takedown notices and automatically prevents identical copies of the removed video from being posted. Id. 125.
In February 2007, YouTube started using audio "fingerprinting" technology licensed from a company called Audible Magic. That same year, after an extraordinary effort, YouTube launched a more advanced content-identification system (called "Content ID"), which uses audio and video fingerprinting technology developed in-house by Google and YouTube engineers specifically for use on YouTube. Decl. of David King in Support of Defs.' Motion for Summary Judgment ("King Decl.") Ifl 2, 3, 14-20. This powerful technology scans every one of the hundreds of millions of videos uploaded to YouTube and, within seconds, compares each with a vast library of reference files provided by participating copyright holders. Id. H 3, 23, 26. If a match is identified, the system automatically applies the content owner's instructions about what to do: whether to block the matching video from appearing on YouTube, "track" how users are watching it, or "monetize" the video by permitting advertisements to be shown alongside it. Id. If 24. YouTube's cutting-edge Content ID system has been used by a long list of content owners worldwide to make their own choices about how, where, when, or whether they want their content to appear on YouTube. Id. If 25.
10
Copyright holders repeatedly have praised YouTube, both for its service
generally as well as for its efforts and tools to help combat copyright abuse. In
2006, the Motion Picture Association of America (the anti-piracy association for the
major movie studios) told the press: "YouTube has been a good corporate citizen and
taken off copyrighted material." Levine Decl. 1 32 & Ex. 14. That same year, NBC
hailed YouTube as a "bright light" on copyright protection and proclaimed that:
YouTube is the perfect online media partner to promote NBC's marquee entertainment to their audience and explore new and creative ways to harness the power of viral video in a manner that respects copyrights. We applaud YouTube for their continued willingness to work with us to remove any unauthorized NBC content and protect our copyrighted material. We are thrilled to be partnering with this forward-thinking company.
Id. If 33 & Exs. 15, 16. Warner Music similarly lauded YouTube's "commitment to creating a framework in which the needs of [its] users and copyright holders can coexist in a mutually beneficial environment." Id. & Ex. 17. B. Viacom
Plaintiff Viacom, Inc. is a media conglomerate. Viacom alleges copyright infringement with respect to television programs appearing on the following networks that it controls: (1) MTV and MTV2; (2) VH1; (3) Comedy Central; (4) Country Music Television ("CMT"); (5) Black Entertainment Television ("BET"); and (6) Nickelodeon. Viacom Am. Compl. If 20. Viacom also brings suit over motion pictures allegedly owned by its subsidiary Paramount Pictures. Id. If 18.
Notwithstanding its litigation claims, Viacom has embraced YouTube to advance its business. Viacom employees and dozens of separate third-party marketing agencies working on its behalf have posted a host of clips from Viacom
11
television programs and movies to YouTube. See Section I.C.3.b.ii, infra. Viacom has also instructed its monitoring agents to leave up on YouTube entire categories of user-posted videos containing Viacom content. See Section I.C.3.b.iii, infra. In addition, both before and after bringing this lawsuit, Viacom spent significant sums of money running advertisements for its content on the YouTube website. Reider Decl. Tf 3. In July 2006, Viacom even sought to purchase YouTube, after Viacom's "best minds" concluded that it would be a "transformative acquisition" for Viacom. Schapiro Ex. 3 (77:7-15), Ex. 4 (65:5-14). To the frustration of many within the company, Viacom's efforts to acquire YouTube proved unsuccessful. See id. Ex. 5 (VIA00885981).
In addition, in early 2006, Viacom proposed the idea of a content-partnership agreement with YouTube, which the parties negotiated for months. Maxcy Decl. 1 8; see also Schapiro Exs. 6, 7. Before a deal could be struck, however, Google announced that it was acquiring YouTube. With Google now sitting at the table, Viacom opted for a "strong arm approach" under which it would "push for significantly better terms." Id. Ex. 8; see also id. Ex. 9. During these negotiations, Viacom deliberately allowed its content to remain on YouTube, in part because it thought that "having the content there was valuable in terms of helping the rating of our shows." Id. Ex. 4 (132:19-133:24).
After the negotiations stalled, Viacom developed a plan to send YouTube a large DMCA takedown notice in the hopes of gaining leverage and "provide [Viacom] the economics" it had requested. Id. Ex. 10. Viacom wanted a mass
12
takedown to occur in "one dramatic event (as opposed to drips)." Id. To that end, Viacom put in place a "find and hold" strategy: For months, it searched YouTube for videos allegedly containing Viacom content, but instead of promptly requesting their removal, Viacom added the clips to an internal list. Id. Ex. 11 (161:9-21, 167:10-18, 202:14-19). Viacom finally issued its orchestrated mass takedown on February 2, 2007. Decl. of Micah Schaffer in Support of Defs.' Motion for Summary Judgment ("Schaffer Decl.") Tf 14. By the next business day, YouTube had taken down virtually all the videos that Viacom's mass takedown notice identified. Id. Despite Viacom's apparent expectations that YouTube's traffic would decrease and traffic to Viacom's own websites would soar after those videos were removed, neither prediction came true. Hurley Decl. 1 26; see also Schapiro Ex. 13 (234:17288:14), Ex. 14, Ex. 15. Viacom then turned to litigation, filing this lawsuit on March 13, 2007 and demanding one billion dollars. Viacom Am. Compl. 1 10.2 C. The Putative Class Plaintiffs
The putative class plaintiffs are a diverse group of content owners from several nations. Thirteen of the putative class plaintiffs are music publishers that claim copyright interests in various musical compositions and/or sound recordings.3
2 Some of Viacom's executives soon came to doubt the wisdom of that strategy. See, e.g., Schapiro Ex. 16 (VIA01623231).
3 Those plaintiffs are: Bourne Co. ("Bourne") and its affiliate Murbo Music Pubhshing, Inc. ("Murbo"); Cherry Lane Music Publishing Company, Inc. ("Cherry Lane"); Cal D7 Entertainment, LLC ("Cal IV); The Rodgers & Hammerstein Organization ("R&H"); Stage Three Music (US), Inc. ("Stage Three"); Edward B. Marks Music Company, Freddy Bienstock Music Company d/b/a Bienstock Pubhshing Company and Alley Music Corporation (collectively, "Carlin"); X-Ray Dog Music, Inc. ("XRD"); and The Music Force Media Group LLC, The Music Force
13
Two of the putative class plaintiffs are sports associations. The Football Association Premier League Limited ("Premier League") alleges infringement of rights in audiovisual broadcast footage of soccer matches that the League organizes among a mutable group of English soccer clubs, who are also the League's shareholders. SchapiroEx. 17 (10:16-18, 15:7-20). Federation Française de Tennis ("FFT"), which organizes the annual French Open tennis tournament, makes claims based on broadcast footage of various matches played at the French Open between 2003 and 2008. SACAC 11 31-32. Plaintiff Robert Tur d/b/a Los Angeles News Service ("Tur") is a helicopter pilot who asserts copyright in news footage. SACAC 1 21. National Music Publishers' Association ("NMPA"), a trade organization of music publishers, also claims to represent the class, though it owns no copyrighted works and has identified no alleged infringements. Id. H 22-23. Like Viacom, the putative class plaintiffs have frequently authorized their content—including works in suit—to appear on YouTube. See Section I.C.3.b.(iv), infra. D. The Clips In Suit
Viacom alleges that 63,497 user-uploaded video clips that once appeared on YouTube infringed copyrights in approximately 500 different television programs and motion pictures that Viacom claims to own.4 Decl. of Michael Rubin in Support of Defs.' Motion for Summary Judgment ("Rubin Decl.") 1 7 (attaching lists of clips in suit). These clips have been removed from YouTube; most were the subject of
LLC and Sin-Drome Records, Ltd. (collectively, "Music Force"). Second Amended Class Action Complaint ("SACAC") H 16, 18-20, 24-30, 33.
4 We refer to the allegedly infringing video clips as the "clips in suit" and the plaintiffs' works that those clips are alleged to have infringed as the "works in suit."
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DMCA notices, and taken down in response. See Schapiro Ex. 18 (Housley Dep.141:10-19, 148:8-18); Levine Decl. H 19-21. The majority of Viacom's clips in suit are under four minutes long; many are under one minute long; and some are fewer than ten seconds long. Rubin Decl. Tf 15 (examples).
Among the clips in suit are a number of videos that Viacom's own employees and agents uploaded to the service. Rubin Decl. 1 6-14. Viacom attempted in the final days of discovery to dismiss some of the allegedly infringing clips that YouTube's discovery efforts had revealed were actually posted at Viacom's direction. Id. But even then, Viacom missed a number of other clips in suit that Viacom or its agents had posted. Id. Many other clips in suit, even if not themselves directly uploaded to YouTube by Viacom, are identical to or indistinguishable from the promotional materials that Viacom has authorized to appear on YouTube. Section I.C.3.b.ii, infra. And an untold number of other clips in suit are videos that Viacom deliberately had allowed to remain on YouTube. Section I.C.3.b.iii, infra.
The putative class plaintiffs have collectively identified some 13,500 clips in suit and nearly 900 works in suit. Rubin Decl. 1 16. These works range from musical compositions to television broadcast feeds of foreign soccer matches to videos of news events. The putative class plaintiffs' clips in suit—which likewise have been removed from YouTube (Levine Decl. H 19, 21)—vary considerably: from grainy handheld footage shot by spectators at sporting events and rock concerts, to short soccer and tennis highlights; from home videos of ordinary people lip-synching or singing karaoke, to movie trailers and music videos. Many of those clips are
15
effectively indistinguishable from a wide range of videos on YouTube that no one has ever alleged to be infringing. A considerable number of the class plaintiffs' clips in suit are extremely short; the Premier League alone is suing over dozens of clips under five seconds long and at least one that is one second long. Rubin Decl. 1 16. In addition, the putative class plaintiffs have claimed infringement of numerous works that they have licensed to be on YouTube, as well as other works that various co-owners and/or sub-publishers have a right to post or license. Section I.C.3.b.iv, infra.
E. The DMCA Safe-Harbor Provisions
Congress enacted the DMCA in recognition that in "the ordinary course of their operations, service providers must engage in all kinds of acts that expose them to potential copyright infringement liability." S. Rep. 105-190, at 8 (May 11, 1998). The statute aims to "facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age" (id. at 1-2), by limiting online service providers' "legal exposure for infringements that may occur in the course of their activities." PerfectlO, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007) (quoting Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004)).
The DMCA was the product of negotiations between the major copyright holders and online service providers. See S. Rep. 105-190, at 9. It balances the interests of content owners seeking to protect their copyrights and service providers seeking protection from infringement claims that might deter valuable technological innovation and stifle freedom of expression. See Corbis Corp. v. Amazon.com, Inc.,
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351 F. Supp. 2d 1090, 1098 (W.D. Wash. 2004). By "limiting the liability of service providers" for the actions of people who use their websites and web-based services, the DMCA was intended to ensure that "the variety and quality of services on the Internet will continue to expand." S. Rep. 105-190, at 8.
The safe harbor at issue here applies to service providers, like YouTube, that store information on their own systems at the direction of users. 17 U.S.C. § 512(c). Its protections have been applied to a variety of established Internet sites that host user-submitted material, including Amazon.com and eBay (Corbis, 351 F. Supp. at 1110-11; Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (CD. Cal. 2001)), as well as video-hosting sites almost identical to YouTube (To, 586 F. Supp. 2d at 1155). The Section 512(c) safe harbor presumptively applies to a service provider that meets the threshold "conditions for eligibility" set out in Section 512(i) and designates an agent to receive "notifications of claimed infringement" (§ 512(c)(2)).
The agent's role is to facilitate the notice-and-takedown regime at the heart of the safe-harbor. Using the procedures described in the statute, copyright holders can avoid a costly and time-consuming judicial process by notifying service providers that certain material stored on their systems is not authorized to be there. § 512(c)(3). The copyright holder must identify the work that it owns and believes to be infringed, identify the location of the allegedly infringing material on the service provider's system, and certify its claims under penalty of perjury. § 512(c)(3). Service providers in turn must respond expeditiously by taking down or blocking access to that material. § 512(c)(1)(C). The DMCA also gives the users
17
who posted the material subject to a takedown notice an opportunity to contest the copyright owner's claim by filing a counter-notice confirming that they have the authority to upload the work in question. § 512(g)(3).
In creating this carefully calibrated regime, Congress decided that copyright holders, rather than service providers, should bear the primary responsibility for pursuing unauthorized uses of copyrighted materials. The "DMCA notification procedures place the burden of policing copyright infringement—identifying the potentially infringing material and adequately documenting infringement— squarely on the owners of the copyright." PerfectlO, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007); see also UMG II, 665 F. Supp. 2d at 1112. Indeed, the statute expressly provides that a service provider need not monitor its service for possible infringement to obtain safe-harbor protection. 17 U.S.C. § 512(m); see also S. Rep. 105-190, at 44; H.R. Rep. 105-551 (Part 2) (July 22, 1998), at 53.
There are only two circumstances in which a qualifying service provider loses the protection of Section 512(c)'s safe harbor. Each involves a bad-faith refusal to stop some specific instance of infringing activity. First, the safe harbor does not apply if the provider acquires "actual knowledge" that particular material stored on its system is infringing—or becomes aware of "facts or circumstances from which infringing activity is apparent"—and fails to expeditiously remove or disable access to the material in question. § 512(c)(1)(A). Second, the safe harbor does not apply where the service provider "receive[s] a financial benefit directly attributable to the infringing activity" in a circumstance where it "has the right and ability to control
18
such activity." § 512(c)(1)(B). As the text and structure of these provisions make clear, a finding that a service provider is ineligible for DMCA protection based on either knowledge-plus-failure-to-disable or control-plus-financial-benefit must be made as to particular alleged infringements. UMGII, 665 F. Supp. 2d at 1111-12.
The protection conferred by the safe harbors is broad. A qualifying service provider "shall not be liable for monetary relief (§ 512(c)(1)) and is subject only to a "limited" form of injunctive relief described in section 512(j). Amazon.com, 508 F.3d at 1158. These protections apply no matter what type of infringement is alleged, shielding "qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement." H.R. Rep. 105-551 (Part 2), at 50; see also CCBill, 488 F.3d at 1117.
SUMMARY OF ARGUMENT
Section 512(c) of the DMCA bars all of plaintiffs' direct and secondary infringement claims. First, YouTube meets all the threshold qualifications necessary for safe-harbor protection: YouTube is a service provider; it has registered a designated agent to receive notifications of alleged infringement; and YouTube has adopted and implemented an appropriate policy for terminating the accounts of "repeat infringers." Second, each of the infringement claims that plaintiffs assert arises by reason of the storage of videos on YouTube at the direction of users. An unbroken line of cases, including recent decisions involving a video-hosting service just like YouTube, confirms that Section 512(c) bars such claims.
Third, plaintiffs cannot show that YouTube had knowledge that any of the particular clips at issue were infringing plaintiffs' copyrights but failed to remove
19
those clips expeditiously. There is no evidence of "actual knowledge," and (particularly in light of plaintiffs' widespread authorization of their content to appear on YouTube) plaintiffs cannot establish that YouTube was aware of "facts or circumstances" making the supposedly infringing nature of those clips "apparent." Fourth, YouTube did not receive "a financial benefit directly attributable to the infringing activity" while maintaining the "the right and ability to control such activity." YouTube has neither a legal duty nor the practical ability to monitor the hundreds of millions of videos on its service in an effort to identify potentially infringing activity. YouTube's lack of practical control is confirmed by the plaintiffs' own inability to readily distinguish which appearances of their material on YouTube are authorized and which are not. YouTube works hard to prevent infringement and help copyright holders protect their rights. Finally, because YouTube has a legitimate advertising-based business model that generates revenue from the service's broad array of non-infringing uses, YouTube does not run afoul of the DMCA's financial benefit test.
Because YouTube qualifies for the safe harbor, it is protected against all of plaintiffs' claims, including their claims of "inducement." But even without regard to the DMCA, plaintiffs' inducement claims fail. YouTube simply is not the kind of "pirate" service—one set up with the "patently illegal objective" of encouraging its users to infringe and comprised overwhelmingly of infringing material—that the Supreme Court described in Grokster: YouTube was founded with a legitimate purpose and has never encouraged its users to infringe; YouTube houses an
20
indescribable diversity of non-infringing material; and YouTube has taken industry-leading steps to deter copyright violations. The legitimacy of YouTube's service is confirmed by the range of extraordinary uses to which it has been put, including as an unmatched platform that the plaintiffs themselves have used extensively—and still use—to promote their content.
ARGUMENT
I. THE DMCA SAFE HARBOR PROTECTS YOUTUBE AGAINST LIABILITY FOR ALL OF PLAINTIFFS' CLAIMS.
Summary judgment "should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). There is no genuine issue as to any material fact
bearing on YouTube's entitlement to the Section 512(c) safe harbor.5
A. YouTube Meets The Threshold Qualifications For Safe-Harbor Protection.
YouTube readily satisfies the DMCA's threshold conditions for protection
under Section 512(c). YouTube is a "service provider" (17 U.S.C. § 512(k)(l)(B)) and
has registered an agent to receive notifications of claimed infringement (§ 512(c)(2)).
5 The DMCA safe harbors "apply if the provider is found to be liable under existing principles of law." S. Rep. 105-190, at 19. It is a well recognized procedure for courts to address the applicability of the safe harbors on summary judgment before liability for direct or secondary infringement has been adjudicated. See, e.g., Io, 586 F. Supp. 2d 1132. Cf. 17 U.S.C. § 512(Z) (service provider's failure to qualify for safe-harbor protection "shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense"). In making this motion, YouTube of course reserves its arguments that plaintiffs' claims fail without regard to the DMCA—and YouTube expressly seeks summary judgment on plaintiffs' claims for contributory infringement based on the theory of inducement. See Section II, supra.
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YouTube has also implemented a policy for terminating accounts of repeat infringers and does not interfere with any "standard technical measures." § 512(i).
1. YouTube Is A "Service Provider."
As used in Section 512(c), "the term 'service provider' means a provider of online services or network access, or the operator of facilities therefor." 17 U.S.C. § 512(k)(l)(B). This definition readily encompasses a website like YouTube that provides online services (in the form of hosting user-submitted material) to Internet users. See, e.g., Corbis, 351 F. Supp. 2d at 1100 ("there is no doubt that Amazon fits within the definition"); Hendrickson, 165 F. Supp. 2d at 1088 ("eBay clearly meets the DMCA's broad definition of online 'service provider'"). Indeed, in recent litigation involving a very similar video-hosting service (Veoh), the plaintiffs in that matter did not even try to dispute that Veoh was a "service provider." Io, 586 F. Supp. 2d at 1143; UMGII, 665 F. Supp. 2d at 1106-07.
2. YouTube Has Registered A Designated DMCA Agent.
Also undisputed is the fact that by October 2005, YouTube had formally registered with the Copyright Office a designated agent to receive notices of claimed infringements. Hurley Decl. If 21. Even before then, YouTube made available prominently on its website all the information about its DMCA agent that the statute requires. Id.; see also Levine Decl. Hf 14-15. The YouTube website has consistently offered detailed instructions about the information that copyright holders should include in any notices that they wish to send to YouTube's designated agent. Levine Decl. Iflf 15-16; Hurley Decl. If 21.
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3. YouTube Has Adopted And Implemented An Appropriate Repeat-infringer Policy.
A service provider seeking safe-harbor protection must have "adopted and reasonably implemented, and inform[] subscribers and account holders . . ., of a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . . who are repeat infringers." § 512(i)(l)(A). This requires a service provider to (1) adopt a policy to terminate the accounts of repeat infringers; (2) communicate that policy to users; and (3) implement that policy in a reasonable manner. Ellison, 357 F.3d at 1080; Corbis, 351 F. Supp. 2d at 1099. YouTube meets all of these requirements. See Levine Decl. H 27-31; Hurley Decl. 1 21.
a. YouTube has adopted an appropriate repeat-infringer policy.
YouTube has long had a robust policy for terminating the accounts of repeat
infringers. In virtually all cases, YouTube terminates the accounts of users who receive three "strikes" for violating the terms of use relating to copyright. Levine Decl. 1 27. A strike is issued when YouTube receives a takedown notice for material that a user has uploaded. Id. H 27-29. When YouTube terminates a user's account, YouTube removes all of that user's videos, not merely those against which allegations of infringement have been levied, and it permanently blocks the account from being reestablished. Id. If 30.
Courts have uniformly concluded that policies akin to YouTube's are reasonable as a matter of law. See Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077, 1089 (CD. Cal. 2004) (no genuine issue of fact that service provider had adopted a repeat-infringer policy where its policy stated "that it will terminate or
23
disable the accounts of . . . clients who are accused of infringing third-party copyrights"); id. at 1094 n.12 (holding that policy of terminating accounts "after 3 notifications is reasonable"); UMGII, 665 F. Supp. 2d at 1117-18.
b. YouTube informs its users of its repeat-infringer policy. YouTube communicates its repeat-infringer policy to users in multiple ways,
including by publicizing it throughout the YouTube website. When registering to
upload videos, users must agree to YouTube's Terms of Use, which set forth its
repeat-infringer policy. Levine Decl. 1 27 & Exs. 1-2, 7-8. YouTube also
prominently displays the policy on its "Copyright Tips" pages. Id. If 9 & Ex. 7. And,
whenever a user's video is removed due to alleged copyright infringement, YouTube
sends an email reminding the user that the user's account is subject to termination
if improper behavior continues. Id. 1 23 & Ex. 12. YouTube's efforts are more than
sufficient to inform users of the repeat-infringer policy. See, e.g., Corbis, 351 F.
Supp. 2d at 1101-02 (holding that Amazon communicated its repeat-infringer policy
by requiring users to accept terms of use informing them that repeated violations
could result in their suspension).
c. YouTube implements its policy in a reasonable manner. "Because [a service provider] does not have an affirmative duty to police its
users, failure to properly implement an infringement policy requires a showing of
instances where a service provider fails to terminate a user even though it has
sufficient evidence to create actual knowledge of that user's blatant, repeat
infringement of a willful and commercial nature." Corbis, 351 F. Supp. 2d at 1104
(emphasis added). There is nothing like that here.
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YouTube has both "a working notification system" and "a procedure for dealing with DMCA-compliant notifications." CCBill, 488 F.3d at 1109. YouTube has taken pains to make its notification system easy and efficient for copyright holders to use. Levine Decl. Iflf 17-18. Early in its existence, YouTube created a first-of-its-kind automated tool that lets copyright holders click a button to send electronic DMCA notices directly to YouTube's agent. Id. If 18. YouTube also implemented "hashing" technology to create a digital signature of each video removed via a takedown notice and to automatically block users from uploading identical copies of that video. Id. If 25.
YouTube's process for responding to takedown notices is similarly efficient. Given the policies that it has long had, YouTube is usually able to remove or block access to a video identified in a DMCA-compliant notice within a matter of minutes. Id. If 19. YouTube also sends an email message to any user whose videos are the subject of a takedown notice, giving the user an opportunity to challenge the notice, but warning that repeated disregard for copyright law will result in the termination of that user's account. Id. If 23. A computerized system then tallies the number of strikes that each user's account receives. Id. If 28. In virtually all cases (with exceptions not relevant here), when an account receives three strikes—or where YouTube determines that a particular user who has received fewer than three strikes is nonetheless flagrantly abusing the service's terms of use—YouTube terminates the account and removes all of the user's videos. Id. If 30. YouTube
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prevents users whose accounts have been terminated from creating new accounts by recording and blocking the user's email address. Id.
Applying these policies, YouTube has terminated more than 400,000 user accounts based at least in part on copyright strikes. Id. If 31.6 YouTube's dedication to DMCA compliance has drawn widespread praise. Id. H 22, 32-33 & Ex. 11 (examples). There can be no doubt that YouTube reasonably implements its repeat-infringer policy. See lo, 586 F. Supp. 2d at 1143 (relying on similar facts to find that Veoh reasonably implemented its policy).
4. YouTube Accommodates Standard Technical Measures.
The final threshold qualification for safe-harbor protection requires service providers to accommodate and not interfere with "standard technical measures." § 512(i)(l)(B). That is a defined term, which applies only to "technical measures used by copyright owners to identify or protect copyrighted works" that have been "developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process" (among other requirements). § 512(i)(2). The required standards-setting process has never occurred, however, and thus as a matter of law there are currently no relevant "standard technical measures" with which YouTube could have interfered. In any event, YouTube goes beyond the DMCA and freely makes available sophisticated technology that helps copyright holders—including Viacom—automatically identify their content on YouTube. Section II.B.2.C, infra.
6 Reflecting the overwhelming legitimate usage of YouTube, that figure represents only a small fraction of the over 250 million registered YouTube accounts. Id. If 31.
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B. Plaintiffs' Claims Involve "Storage At The Direction Of A User." The Section 512(c) safe harbor applies to any claim for "infringement of
copyright by reason of the storage at the direction of a user of material that resides
on a system or network controlled or operated by or for the service provider." 17
U.S.C. § 512(c)(1). Plaintiffs' claims, which arise from materials stored on
YouTube's system at the direction of its users, fall squarely within this provision.
1. YouTube Stores And Streams Videos Through Automated Processes Initiated By Users.
The clips in suit were uploaded by YouTube users—including plaintiffs and their agents. Solomon Decl. 1 5. The facts concerning how such videos come to be stored on YouTube's system, and what happens to them once they are there, are undisputed. Id. H 2-10 (describing how videos are uploaded to YouTube and transcoded into different file formats, how YouTube's system stores videos, and how videos are "streamed" in response to users' playback requests). These facts establish a number of important propositions: (1) videos (including the clips at issue in this case) reside on YouTube's system at the direction of users; (2) during the upload, storage, and playback processes, a certain number of copies of those videos are made automatically by operation of YouTube's system; and (3) those copies are made to facilitate the efficient storage and viewing of user-submitted videos. Id. H 6-8. In other words, the replication, transmittal, and display of videos on YouTube—the actions that are the subject of plaintiffs' infringement claims—occur through the operation of automated computer processes in response to the direction
27
of users. Id. 1 2. As we now discuss, an unbroken line of cases confirms that such
actions are covered by the Section 512(c) safe harbor.
2. Section 512(c) Protects Services That Have Automated Processes To Facilitate User Access To Stored Material.
Courts applying Section 512(c) have uniformly held that the safe harbor is not limited to mere storage of material, but also protects online services that make user-uploaded material more readily accessible. See, e.g., Corbis, 351 F. Supp. 2d at 1110-11 (granting summary judgment that Amazon was protected by Section 512(c) for service enabling vendors to upload images onto Amazon's servers that were then displayed to users); Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 701-02 (D. Md. 2001), aff'd, 373 F.3d 544 (4th Cir. 2004) (online database of real-estate listings compiled from user submissions and made accessible to users on request is protected by Section 512(c)). Indeed, no court has ever held that such functions fall outside the reach of the safe harbor.
Directly on point are a pair of recent decisions holding that an Internet video-hosting service (Veoh) is protected by Section 512(c). Those rulings explain that "service providers seeking safe harbor under Section 512(c) are not limited to merely storing material" (To, 586 F. Supp. 2d at 1147) and that the statute covers "software functions" that are "directed toward facilitating access to materials stored at the direction of users" (UMG I, 620 F. Supp. 2d at 1088). Those principles apply directly to this case.
Like YouTube, Veoh "operates an internet-based service that allows users to share videos with others, free of charge." UMG I, 620 F. Supp. 2d at 1082. Veoh is
28
more than an online video-storage warehouse; it has implemented various features "directed towards providing access to material stored at the direction of users." Id. at 1092. To that end, Veoh (1) automatically creates additional copies of user-uploaded videos; (2) converts user-uploaded videos into Flash format (and other formats playable on mobile devices); and (3) allows users to "stream" copies of videos onto their computers. Id. at 1084-85. The court in UMG I had little trouble concluding that "the section 512(c) limitation on liability applies to service providers whose software performs these functions for the purpose of facilitating access to user-stored material." Id. at 1088.
That decision followed a similar ruling in Io, 586 F. Supp. at 1147. Io expressly rejected the argument that Veoh fell outside Section 512(c) because it gives users access to the videos it hosted "as a means of distribution . . . and not just storage." Id. at 1146-47. What matters is that Veoh "established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. . . . Inasmuch as this is a means of facilitating user access to material on its website," Veoh did not lose the safe harbor "through the automated creation of these files." Id. at 1148.
YouTube is indistinguishable from Veoh in these respects. As described above, video files are uploaded to YouTube "through an automated process which is initiated entirely at the volition" of its users. Io, 586 F. Supp. 2d at 1148. The reproduction, distribution, and display at issue here occur via software functions triggered automatically by user requests. Solomon Decl. 1 2. Those functions are
29
"undertaken to make it easier for users to view" used-submitted videos stored on
YouTube. UMG I, 620 F. Supp. 2d at 1092. As a matter of law, therefore,
YouTube's automated processes for formatting, storing, and streaming videos
uploaded by users fall within Section 512(c). This result furthers the basic purpose
of the safe harbor: "if providing access could trigger liability without the possibility
of DMCA immunity, service providers would be greatly deterred from performing
their basic, vital, and salutary function—namely, providing access to information
and material for the public." Id. at 1089.
C. YouTube Did Not Have Knowledge Of The Alleged
Infringements And Responded Expeditiously To Takedown Notices For The Clips In Suit.
Having established all the threshold qualifications for the Section 512(c) safe harbor, YouTube is protected unless plaintiffs can demonstrate the existence of one of two disqualifying circumstances: (1) that YouTube had knowledge of the specific instances of infringement that plaintiffs allege (or received a DMCA-compliant notice regarding those claimed infringements), but failed to act "expeditiously" to remove or disable access to the offending material; or (2) that YouTube had the "right and ability to control" the infringing activity alleged and received "a financial benefit directly attributable" to that activity. 17 U.S.C. § 512(c)(1)(A), (c)(1)(C), (c)(1)(B). We start with the first point: YouTube did not have the kind of knowledge that would have required it to remove any of the video clips at issue in this case without first receiving a proper DMCA takedown notice.
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1. Plaintiffs Have The Burden Of Showing That YouTube Had
Knowledge Of The Specific Infringing Activity That They Allege.
Courts applying Section 512(c) have consistently found that to disqualify an otherwise-eligible service provider from safe-harbor protection, the plaintiff must come forward with evidence that the service provider had knowledge of particular infringing material on its service, but declined to expeditiously remove it. If the plaintiff fails to do so, the service provider is entitled to summary judgment on this element. See UMGII, 665 F. Supp. 2d at 1110 (granting summary judgment where "UMG has not provided evidence establishing that Veoh failed to act expeditiously whenever it had actual notice of infringement").7
It is not sufficient for the plaintiff to show "a provider's general awareness of infringement." UMG II, 665 F. Supp. 2d at llll.8 The knowledge required by Section 512(c) is instead knowledge of the specific infringing activity that the
7 See also Perfect 10, Inc. v. Amazon, CV-05-4753, slip op. at 8 (CD. Cal. Nov. 4, 2008) ("Although A9 has the ultimate burden of proving its affirmative defense, it is Perfect 10's burden to show that A9 had actual knowledge of infringement within the meaning of Section 512(c).") (attached as Schapiro Ex. 19); Io, 586 F. Supp. 2d at 1148-49 (granting service provider's motion for summary judgment under Section 512(c) where copyright holder failed to come forward with sufficient evidence of actual or constructive knowledge); Corbis, 351 F. Supp. 2d at 1107-09 (same; faulting copyright holder for providing "no evidence from which such actual knowledge could be gleaned" and "no evidence from which to infer that Amazon was aware of, but chose to ignore, red flags").
8 See also Io, 586 F. Supp. 2d at 1148-49 (copyright owner failed to raise a "genuine issue of material fact as to whether Veoh had the requisite level of knowledge or awareness that plaintiffs copyrights were being violated") (emphasis added); Corbis, 351 F. Supp. 2d at 1108 ("The issue is whether Amazon actually knew that specific zShops vendors were selling items that infringed Corbis' copyrights") (emphasis added); Hendrickson v. eBay, 165 F. Supp. 2d at 1093 (granting summary judgment to service provider that "did not have actual or constructive knowledge that particular listings were being used by particular sellers to sell pirated copies" of the particular work in suit) (emphases added).
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plaintiff alleges. The text and structure of the statute make that clear. A service
provider retains safe-harbor eligibility if, upon obtaining knowledge of the
infringement, it "acts expeditiously to remove, or disable access to, the material."
§ 512(c)(l)(A)(iii) (emphasis added). Section 512(c), that is, does not focus on
knowledge alone, but instead uses knowledge to trigger a duty to remove the
particular material that the service provider knows is infringing. Such expeditious
removal is possible only if the provider knows with specificity what it must remove.
A service provider that merely has generalized knowledge of infringement occurring
somewhere on its system cannot do what the statute demands. YouTube therefore
would have disqualifying knowledge for purposes of these cases only insofar as it
failed to expeditiously remove a particular clip in suit that it knew to be infringing.
For a variety of reasons, plaintiffs cannot make that showing.
2. YouTube Did Not Have Actual Knowledge Of The Alleged Infringements.
There is no evidence that YouTube had "actual knowledge" that any of the clips in suit were infringing plaintiffs' copyrights. See, e.g., Corbis, 351 F. Supp. 2d at 1108 (finding plaintiffs evidence of actual knowledge "wholly insufficient").9
9 Most of the clips in suit were brought to YouTube's attention by way of a DMCA notice. See Schapiro Ex. 17 (186:9-187:7), Ex. 18 (141:10-19, 148:8-18). YouTube promptly complies with such notices by removing the videos identified in them. Levine Decl. 1 19; Section I.C.4, infra. Some of the putative class plaintiffs' clips were never the subject of any takedown request prior to being identified as alleged infringements in this case. See Schapiro Ex. 20 (94:19-95:6) (admitting that Carlin did not send takedown notices for any clips in suit); Ex. 21 (26:15-21) (admitting that Stage Three did not send takedown notices for clips identified in its complaint); Ex. 22 (Response 35) (same for R&H). Those plaintiffs' decisions to forego sending DMCA notices for their clips "stripped [them] of the most powerful evidence of a service provider's knowledge." Corbis, 351 F. Supp. 2d at 1107. To the extent that
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3. There Are No Facts Or Circumstances Known To YouTube From Which The Alleged Infringements Were "Apparent."
As an alternative to actual knowledge, "a service provider may lose immunity
if it fails to take action with regard to infringing material when it is 'aware of facts
or circumstances from which infringing activity is apparent.'" CCBill, 488 F.3d at
1114 (quoting 17 U.S.C. § 512(c)(l)(A)(ii)). This provision is triggered only where
"the service provider deliberately proceeded in the face of blatant factors of which it
was aware." Corbis, 351 F. Supp. 2d at 1108 (emphasis added) (citation omitted);
see also Io, 586 F. Supp. 2d at 1148. A showing of so-called "red-flag" knowledge
requires, first, that the service provider was actually aware of the facts or
circumstances from which the infringing activity was supposedly apparent. See S.
Rep. 105-190, at 40. If so, the question then becomes whether the proffered
circumstances were so blatant that they required the service provider to remove the
material at issue without any takedown notice from the copyright owner. Plaintiffs'
knowledge claims fail at both stages of the analysis.
a. There is no evidence that YouTube was actually aware of any supposed "red flags."
Because "a service provider need not monitor its service or affirmatively seek facts indicating infringing activity," YouTube may not be charged with knowledge based on circumstances that it did not actually know about, but perhaps could have uncovered by more actively monitoring user activity. S. Rep. 105-190, at 44; see also
those clips had not already been removed, YouTube took them down shortly after they were identified in their pleadings as clips in suit. Levine Decl. If 21.
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17 U.S.C. § 512(m). That requirement is important here because YouTube employees have never even seen the overwhelming majority of the more than 500 million videos that have been posted to the service. Levine Decl. 1 28; Schaffer Decl. 1 11; Hurley Decl. 1 18. The hundreds of thousands of videos uploaded to YouTube each day are processed and stored automatically by YouTube's computer systems without any human involvement or intervention. Solomon Decl. 1 6. And, consistent with the express terms of the DMCA, YouTube does not manually review or proactively monitor the mass of user-submitted videos. Levine Decl. If 26; Schaffer Decl. Ill; Hurley Decl. If 18. Ordinarily, therefore, no one at YouTube will know that a given video has been posted at all, let alone have actually viewed that video. Id. As a matter of law, moreover, a service provider's generalized understanding that materials containing copyrighted content were stored on its system is not enough to establish awareness of obvious infringing activity. See UMG II, 665 F. Supp. 2d. at 1108 (rejecting argument that a provider's knowledge that it was "hosting user-contributed material capable of copyright protection" creates potentially disqualifying knowledge).
Accordingly, there is no evidence that YouTube was actually aware of "facts or circumstances" from which the alleged infringements of their clips in suit were supposedly "apparent." Io, 586 F. Supp. 2d at 1149 & n.10 (finding lack of knowledge where "there is no evidence to suggest" that Veoh was aware of the circumstances supposedly amounting to a red flag). For this reason alone, plaintiffs' ability to show "red flag" knowledge fails.
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b. Plaintiffs' clips in suit cannot be "red flags." Even if plaintiffs could point to evidence that YouTube had actually seen
certain of the clips in suit, it would not advance their case. The nature of those clips—and plaintiffs' own widespread authorization of their content to appear on YouTube in many different forms—negate any basis for imputing knowledge of the alleged infringements to YouTube.
The test for whether a particular video amounts to a red flag requiring removal by the service provider even in the absence of a DMCA notice is "whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances." H.R. Rep. 105-551 (Part 2), at 53; S. Rep. 105-190, at 44. A red flag, that is, must be something "blatant" (Corbis, 351 F. Supp. 2d at 1108), from which the infringement is "obvious" (S. Rep. 105-190, at 44; H.R. Rep. 105-551 (Part 2), at 57). That formulation is strict, and rightly so. Distinguishing infringing from non-infringing activity is challenging, particularly for service providers as compared to copyright holders. Service providers have limited, if any, information about any number of relevant issues: what copyright owners have rights in which works; what materials those rights holders have licensed to which third parties; which materials copyright owners or licensees have chosen to put on the Internet for promotional reasons; and what uses of a given work would be considered fair. The DMCA's knowledge test was designed against that backdrop to ensure that service providers would not be required "to make discriminating judgments about potential copyright infringement." H.R. Rep. 105551 (Part 2), at 58.
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Congress thus made clear that no red flag would exist where the circumstances leave uncertain whether the material at issue is protected by copyright at all, whether a particular use of copyrighted material is licensed or, if unlicensed, whether the use of the material might be a fair use. Id. at 57-58.10 A service provider has no "investigative duties" to make such determinations. CCBill, 488 F.3d at 1114. Instead, the service provider must remove material on its own— without receiving a takedown notice—only where the infringement would be "apparent from even a brief and casual viewing." Corbis, 351 F. Supp. 2d at 1108 (quoting H.R. Rep. 105-551 (Part 2), at 58). "This high bar for finding 'red flag' knowledge is yet another illustration of the principle underlying the DMCA safe harbors, that the burden is on the copyright holder, not the service provider, to identify copyright infringement." UMGII, 665 F. Supp. 2d at 1111; see also CCBill, 488 F.3d at 1114 (the DMCA does "not place the burden of determining whether [the works] are actually illegal on a service provider").
In this case, therefore, plaintiffs would have to be able to show not just that YouTube actually saw each clip at issue (or the supposed "red flags" associated with it), but also that YouTube would have been able to discern immediately that the clip
10 Although this legislative history specifically refers to the Section 512(d) safe harbor, which protects "information location tools," the red-flag knowledge provision for that safe harbor (§ 512(d)(1)) is identical to the one in section 512(c). "A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning"—a rule "doubly appropriate here" since the two provisions were added "at the same time." Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007); see Corbis, 351 F. Supp. 2d at 1108 (relying on this legislative history in applying Section 512(c)).
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was an obvious infringement of plaintiffs' copyrights. At a minimum, any clip that
(1) leaves doubt about whether it was authorized to be on YouTube (for any number
of reasons, including the obscurity of the material or the actions of the copyright
owner—or owners—in posting, licensing, or deliberately leaving content on
YouTube), or (2) gives rise to a reasonable claim of fair use, does not present
sufficiently "blatant factors" to trigger a duty to remove it absent a proper request
by the rights holder. Plaintiffs cannot overcome these hurdles.
(i) It would not have been apparent what many of the clips in suit even were, much less that they were infringing.
As an initial matter, it is not immediately obvious what many of the clips in suit even are, much less that they supposedly infringe plaintiffs' copyrights. While Viacom has suggested that all of its content is "readily identifiable," that is not true of many of the works at issue in this case.11 The melodies and lyrics of many of the putative class plaintiffs' musical compositions—and the video footage that plaintiff Tur has put at issue—likewise would not be readily recognizable to YouTube.12 Plaintiffs cannot seriously contend that it would have been apparent to any reasonable service provider "from a brief and casual viewing" of short clips from
11 Among Viacom's works in suit are: Call to Greatness, Distraction, Dog Bites Man, Gerhard Reinke's Wanderlust, The Hollow Men, Human Giant, Insomniac with Dave Attell, Noah's Arc, Premium Blend, Rob and Big, Run's House, Shorties Watchin' Shorties, Stardust, A Shot At Love, The Shot, Trick My Truck, True Life: I'm An Alcoholic, Viva Hollywood, Viva La Bam, The White Rapper Show, Wildboyz, and Wonder Showzen. See Rubin Decl. Exs. 117, 120.
12 Among the titles of the works that the putative class plaintiffs have put at issue are: "Dethroned"; "Here Comes The King"; "Off The Hook"; "Oh Yeah"; "The Shankill Butchers"; "Jager Yoga"; "Pursuit: Motorcycle Into Bus"; "Dangerous Pursuits"; and "North Hollywood Shootout." See Rubin Decl. Ex. 129.
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works like these that they misappropriated plaintiffs' copyrighted content. Corbis, 351 F. Supp. 2d at 1108.13
Even if one could discern that some of these clips were commercially produced (which in many instances is far from obvious or simply not true), that certainly does not indicate "obvious" infringement. See Io, 586 F. Supp. 2d at 1149 (rejecting argument that "the professionally created nature of submitted content constitutes a per se 'red flag' of infringement sufficient to impute the requisite level of knowledge"); Corbis, 351 F. Supp. 2d at 1109 (service provider's knowledge that certain types of works may be "the subject of online copyright infringement" does not create red-flag knowledge). That is especially true for YouTube, which hosts all sorts of professional material that is uploaded with full authorization. Maxcy Decl. 11 3-5, 9-10; Walk Decl. H 3-4.
13 That reality is perhaps best illustrated by actually looking at a few examples of the clips in suit, which we respectfully invite the Court to do. See Schapiro Ex. 181 A/18 IB (supposedly a clip from Shorties Watching Shorties); Ex. 182A/182B (supposedly from A Shot at Love); Ex. 183A/183B (supposedly from Viva Hollywood); Ex. 184A/184B (supposedly from Wildboyz); Ex. 185A/185B (supposedly from The White Rapper Show); Ex. 186A/186B (supposedly from So NoTORIous); Ex. 187A/187B (supposedly from Run's House); Ex. 188A/188B (supposedly from Human Giant); Ex. 189A/189B (supposedly from Distraction); Ex. 190A/190B (supposedly from a Premier League match); Ex. 191 A/19 IB (supposedly from a different Premier League match); Ex. 192A/192B (supposedly containing excerpt from "American Beauty Theme"); Ex. 193A/193B (short homemade clip of man supposedly playing "Pretending" on the electric guitar); Ex. 194A/194B (supposedly from "Pursuit: Motorcycle Into Bus"); Ex. 195A/195B (supposedly from a French Open match).
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(ii) Viacom's extensive and varied use of YouTube for
marketing negates any argument that the appearance of Viacom content indicates "obvious" infringing activity.
Even assuming that YouTube reviewed a given clip that obviously contained plaintiffs' copyrighted material, plaintiffs' widespread use of YouTube to market and promote their content—uses that continued even in the midst of this litigation—defeats any notion that the presence of their material on YouTube creates a fact or circumstance from which infringing activity is apparent.
From YouTube's earliest days, many major media companies, including NBC, Disney, Fox, BSkyB, the Weinstein Company—and Viacom itself—have uploaded video clips from their movies and television shows to YouTube for promotional purposes. Decl. of Arthur Chan ("Chan Decl.") H 4, 5, 9; Decl. of Daniel Ostrow ("Ostrow Decl.") 11 2, 4, 5, 6; Rubin Decl. 1 2 & Exs. 1-41. Two facets of this practice are especially relevant to the DMCA's knowledge inquiry because they so significantly complicate the task of distinguishing between authorized and unauthorized uploads: (1) the sheer number of authorized video clips that Viacom (and other media companies) have allowed to flood YouTube; and (2) the opaque manner in which those clips are frequently placed on YouTube.
Viacom alone has uploaded thousands of videos to YouTube to market hundreds of its programs and movies, including many that are now works in suit. See, e.g., Rubin Decl. H 2, 14, 18 & Ex. 1, Exs. 3-16, Ex. 17 ("we've uploaded a boatload of clips onto YouTube for distribution"), Ex. 18-30, Ex. 31 (long list of videos uploaded to YouTube by Viacom's marketing agent). Viacom does so for a simple reason: this kind of marketing works. As a Viacom employee explained to
39
The Wall Street Journal: "you almost can't find a better place than YouTube to promote your movie." Schapiro Ex. 23 at 3; see also id. Ex. 24 (70:16-71:24); Rubin Decl. Ex. 3, Ex. 9 (GOO001-01855886) ("we're using YouTube for all of our online video, and we love it"). Likewise, an MTV marketing executive described posting clips to YouTube as a "no brainer" and raved that the benefits of placing content on YouTube were "overwhelming." Schapiro Ex. 25 (43:17-22), Ex. 26. YouTube played such an important role in Viacom's marketing strategy that even the filing of this lawsuit did not curtail its uploading. Rubin Decl. H 2, 3 & Exs. 23-31, 60-66; Schapiro Ex. 27 (23:3-24:23).
This so-called "viral marketing" is not confined to Viacom. As one of Viacom's own marketing agents explains in a sworn declaration accompanying this motion, the "practice by viral marketers of using YouTube to promote music, television programs, and motion pictures is widespread." Ostrow Decl. 1 6; see also Chan Decl. 11 3, 4, 9; Rubin Decl. 1 2 & Exs. 2, 32-41; Schapiro Ex. 28 (GOO001-05161257-58). Given the broad scope of this marketing, YouTube could not be charged with knowledge of infringement merely because it came across a video that was clearly from a professionally produced television show or movie.
Although Viacom sometimes places materials on YouTube openly,14 much of its marketing activity takes place covertly.15 Like many other large content owners,
14 Paramount, for example, posted nearly 100 clips to YouTube using its official "Paraccount." Schapiro Ex. 29 (38:10-21), Ex. 30. MTV has similarly uploaded numerous videos to YouTube through its "MTV2" account. See Schapiro Ex. 31 (26:20-27:10). Various other Viacom entities have done the same, through accounts
40
Viacom regularly uses so-called "stealth marketing" to get its content onto YouTube.
The goal is to create the appearance of authentic grass-roots interest in the content being promoted. Chan Deel. llf 4, 10; see also Rubin Ex. 10 (Viacom employees discussing posting YouTube videos under "fake grassroots account"); Rubin Deel. If 2 & Exs. 1, 3-9, 11-31; Schapiro Ex. 34 (VIA00434221) (Paramount SVP of Marketing: clips posted to YouTube "should definitely not be associated with the studio - should appear as if a fan created and posted it").
Viacom has used a variety of means to conceal its connection to many of the videos that it has uploaded to YouTube:
• Viacom has hired an army of third-party marketing agents to upload clips on its behalf. Schapiro Ex. 35; Chan Deel. If 5.16
• Viacom and its agents use YouTube accounts that lack any discernable connection to Viacom (such as "MysticalGirl8," "Demansr," "tesderiw," "GossipGirl40," "Snackboard," and "Keithhn"). See Ostrow Deel. 1 6; Chan Deel. 1 4; Rubin Deel. 1 5(a)-©.
• Viacom has deliberately used email addresses that "can't be traced to [Viacom]" when registering for YouTube accounts. Schapiro
such as "Paramount Vantage," "Paramount Classics" and "SpikeTV." Id. Ex. 24 (22:11-22:20), Ex. 32 (151:17-152:20).
15 See Rubin Ex. 19 (VIA00345822) (instructing that clip "get posted on YouTube asap ... NOT WITH A PARAMOUNT LOGO OR ASSOCIATION"), Ex. 15 (VIA00369535-36) ("THIS MUST BE VIRAL AND NOT DIRECTLY CONNECTED TO US!"); Schapiro Ex. 33 (FS048715-16) (describing online marketing plan as a "covert operation").
16 Viacom used at least 18 separate firms to upload content to YouTube on its behalf: ICED Media (Schapiro Ex. 36); Special Ops Media (id. Ex. 37); M80 (id. Ex. 38); WiredSet (id. Ex. 39, 43); New Media Strategies (id. Ex. 40); Cornerstone Promotions (id. Ex. 41); Fan2Band (id.); Fanscape (id.); Total Assault (id.); Filter Creative Group (id.); Carat (id. Ex. 42); T3 (id.); BuzzFeed (id.); ADD Marketing (id. Ex. 43); TViral (id. Ex. 44); Deep Focus (id. Ex. 45 (28:7); Red Interactive (id. (28:67); and Palisades Media Group (Chan Deel. H 3-4).
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Ex. 46; see also Rubin Ex. 22 (videos should be "uploaded from [a] personal [account] and not associated with the film"), Ex. 26.
• Viacom employees have made special trips away from the company's premises (to places like Kinko's) to upload videos to YouTube from computers not traceable to Viacom. See Schapiro Ex. 47 (158:20-22); see also Schapiro Exs. 48, 49.
• Viacom has altered its own videos to make them appear stolen, like "footage from the cutting room floor, so users feel they have found something unique." Rubin Ex. 4.17
Viacom's efforts to hide the source of the content it caused to be posted on YouTube were too good: despite its elaborate process for identifying the clips in suit, Viacom and its lawyers were unable to recognize that dozens of the clips alleged as infringements in this case were uploaded to YouTube with Viacom's express authorization. See Section I.D.2.b.(ii), infra.
In addition to its stealth marketing practices, Viacom has further obscured the line between authorized and unauthorized clips by broadly releasing various videos featuring its content. Schapiro Ex. 27 (205:17-206:2). These videos are designed to spread virally over the Internet to generate publicity for Viacom's television shows and movies. When users post these videos, as Viacom hopes that they will, on sites like YouTube, Viacom acknowledges that their presence is authorized. See id. at 206:4-20.18 Because YouTube lacks an accounting of what
17 See also Rubin Ex. 20 (describing how Viacom would "rough up" clips with time codes and other internal studio markings to make them seem illicit, even though the clips were actually part of a carefully crafted marketing initiative), Ex. 14 ("the goal is to make [the video clip] looked 'hijacked'"); Schapiro Ex. 50 (VIA10406143) (promotional video "[deliberately made to look like it was cut together by a 16 year old").
18 See also Rubin Ex. 23 (BAYTSP003732680) (memorializing Viacom's instructions to BayTSP to "not remove" any YouTube video that matches one uploaded from an
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these promotional videos look like, even if YouTube were to recognize that a given clip contains Viacom content, YouTube would not be able to tell whether that particular clip is one that Viacom has approved for promotional distribution across the Internet. It is not even clear that having such an accounting would help: Viacom itself was confused on this point when selecting its clips in suit, many of which turn out to be identical to Viacom's authorized promotional videos. Rubin Decl. If 17 (identifying over a hundred identical matches between clips in suit and Viacom's approved promotional videos).
These activities bear directly on YouTube's knowledge of alleged infringing activity. Through press accounts and occasional direct contacts, and often just by accident or anecdote, YouTube knew generally that some of these promotional activities were occurring. Schaffer Decl. H 7-8; Decl. of Roelof Botha ("Botha Decl.") 11 11-12; Rubin Decl. 1 1, Exs. 2, 32-41. But YouTube also knew that the marketing activity it actually became aware of was just the tip of the iceberg, and that Viacom and a wide variety of major media companies were extensively using the service for promotional purposes without telling YouTube (or anyone else) what they were doing. Schaffer Decl. 1 6; Maxcy Decl. H 3-7; Schapiro Ex. 53 (March 2006 email discussing news article about Fox uploading material to YouTube;
approved Viacom account); Schapiro Ex. 51 (VIA11787096) (Viacom attorney instructing BayTSP that "viral advertising" videos "should stay up"), Ex. 52 (VIA00431656) (Viacom employee stating that a clip in suit is "approved" because it is promotional video), Ex. 27 (207:9-22) (Paramount executive confirming that a clip in suit was approved to be on YouTube because it was promotional).
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YouTube PR director notes: "This is exactly why we don't really know who is uploading the content."); Botha Decl. Tf 11-12.
This fact is powerfully demonstrated by examining the countless errors that Viacom and many other content owners make in sending takedown notices to YouTube. YouTube routinely received takedown requests that were subsequently withdrawn after the media companies who sent them realized that their notices had been targeted to content that they themselves had uploaded or authorized. E.g., Rubin Decl. 1 4 & Exs. 69-83. Both before and well into this litigation, Viacom's own monitoring agent, BayTSP, identified as "infringing" many videos that had in fact been posted to YouTube with Viacom's permission. These self-inflicted infringement claims led to counter-notices from Viacom's marketers, sheepish retractions from BayTSP, and even to the suspension of Viacom's own authorized YouTube accounts for supposed copyright violations. See e.g., id. 1 3 & Exs. 42-68; see also Section I.D.2.b.i, infra.
In UMG II, the court relied on the fact that a single artist affiliated with the plaintiff had uploaded one video to Veoh in finding that Veoh could not be charged with knowledge of the infringements that plaintiff alleged. 665 F. Supp. 2d at 1110 n.13. The evidence of Viacom's viral and stealth marketing on YouTube is orders of magnitude beyond that. Those practices alone would be sufficient to preclude Viacom from claiming that the presence of a given Viacom video on YouTube is anything close to a "red flag" of obvious infringing activity.
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(iii) Viacom's "leave up" practices further undermine any
argument that the presence of its material is a "red flag."
Viacom's use of YouTube for promotional purposes does not end with the videos that Viacom or its agents themselves uploaded. An equally important part of Viacom's marketing strategy has been to "leave up" (by intentionally refraining from sending takedown notices) videos containing Viacom content that may have been posted on YouTube by users with no ties to Viacom. As the former President of MTV candidly explained: "While we were issuing takedown notices against some of the content, there was other content which we were allowing to continue to be on YouTube." Schapiro Ex. 4 (194:8-11).
Viacom's "leave-up" practices are not the product of indifference, but rather are deliberate corporate policies, the details of which were known only to Viacom and its agents. Viacom authorized broad categories of its content to remain on YouTube and gave detailed (and often changing) guidelines to the agents that it hired to monitor YouTube and other websites for Viacom content. In October 2006, for example, Viacom told BayTSP (Viacom's chief monitoring agent) to leave up on YouTube all clips containing Viacom content that were shorter than 2>4 minutes in length, regardless of who had posted to them. Schapiro Ex. 54 (BAYTSP 001093412). Viacom then expanded its approval of clips on YouTube, directing that all videos containing its content be left up on the site unless they constituted "full episodes" of its programs. Id. Ex. 55 (BAYTSP 003724704), Ex. 56 (214:25-215:6). Viacom even instructed BayTSP to leave up full episodes of certain programs—
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including some that are now works in suit. Id. Ex. 57 (BAYTSP 001125605-08), Ex. 11 (115:6-118:1).
Viacom's authorization of material to remain on YouTube extends to the very programs that it has put front and center in this case, including The Daily Show with Jon Stewart and The Colbert Report. Viacom's executives felt "very strongly that [they didn't] want to stop the colbert and daily clips" on YouTube. Id. Ex. 58 (VIAO1676948). The former President of MTV testified that Viacom did not want to take down "clips from Jon Stewart and Stephen Colbert" because "we were concerned that Jon Stewart and Stephen Colbert believed that their presence on YouTube was important for their ratings as well as for their relationship with their audience." Id. Ex. 4 (199:22-201:2). Accordingly, through at least October 2006, Viacom had a specific internal policy of declining to issue takedown notices for clips of those shows that were less than five minutes long. Id. Exs. 59, 60. Viacom later adjusted that rule and confidentially instructed its agent BayTSP to leave up all clips of these shows shorter than three minutes. Id.
Viacom's desire to have clips from the television program South Park on YouTube was, if anything, even more pronounced. Not only did Viacom apply its various leave-up rules to clips of the show, but one of Viacom's most senior executives publicly blessed users' practice of uploading clips from South Park to YouTube. Id. Ex. 61. A month later, in November 2006, when Viacom found 316 South Park clips on YouTube, it requested removal of only one, and chose to leave
46
up or "pass on" the remaining 315. Id. Ex. 62 (BAYTSP 001093518), Ex. 11 (134:19136:10, 138:25-139:14).
Viacom's confidential instructions to BayTSP about what to take down and what to leave up grew so detailed and complex that the Viacom employee responsible for overseeing the BayTSP relationship compared them to Crime and Punishment. Id. Ex. 12 ( 83:6-84:8).19 Viacom came up with new rules every few days—sometimes even changing the rules within the same day. Id. Exs. 66-74. Applying these instructions, Viacom deliberately left up on YouTube thousands upon thousands of clips containing its content. Id. Ex. 57, Ex. 62 (Nov. 14, 2006 chart showing that Viacom's instructions led to removal of 58 videos on YouTube while leaving up 555 videos from the same group of shows), Ex. 75 (Oct. 2006 email: "We are leaving a majority of the content on YouTube"), Ex. 76 (BAYTSP 001125759) (November 16, 2006 report indicating that Bay left up 550 Viacom clips on YouTube that day). Indeed, Viacom even crafted marketing campaigns around its decisions to leave up certain user-posted videos. See Rubin Ex. 28 ("we will assume audiences will tape the trailer on their own and post it on YouTube - we will NOT issue take-down notices"), Ex. 12 (marketing campaign incorporating user-uploaded clips).
19 See also Schapiro Ex. 63 (detailing complex "ground rules" for BayTSP to use in deciding whether to request takedown of Paramount content), Ex. 64 (Paramount instructions to BayTSP about what content should and should not be the subject of takedown notices), Ex. 65 (BAYTSP 003718201) (Paramount instructing BayTSP to "err on the side of leaving some infringing material up rather than being overly aggressive and taking down one of the 'many approved clips'").
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Viacom publicly stated that it was choosing to allow some of its material to remain on YouTube. Schapiro Ex. 77 (discussing November 2006 news article titled "Viacom Keeps Clips on YouTube"). But Viacom did not share with YouTube its detailed and ever-changing takedown instructions to BayTSP. Id. Ex. 11 (118:1019). The only way that YouTube knew which clips Viacom actually wanted to
remove at any given time was from the takedown notices it received.
* * *
Viacom's leave-up policies—along with its stealth-marketing practices and authorization of promotional materials—bear crucially on the application of the Section 512(c) safe harbor. After all, if Viacom deliberately refrained from sending takedown notices for certain videos, how could it be that YouTube was obligated to remove those same videos on sight—without any request from Viacom? Moreover, in light of Viacom's decision to authorize clips of all shapes and sizes on YouTube, the presence of Viacom material there is not and cannot be a blatant indication of unauthorized activity. To the contrary, even if Viacom could show that YouTube saw a particular clip and even if YouTube had recognized that clip as Viacom's content, YouTube still would not know whether that clip was unauthorized.
In short, Viacom's conduct negates what the DMCA requires for knowledge: "obvious and conspicuous circumstances" from which YouTube could have concluded only that the video was an unauthorized infringement of plaintiffs' copyright. S. Rep. 105-190, at 49; Corbis, 351 F. Supp. 2d at 1109.
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(iv) The array of authorized uses of and complex ownership issues surrounding plaintiffs' works defeats any claim that YouTube had disquahfying knowledge.
The actions of the putative class plaintiffs equally undermine YouTube's ability to know what content is unauthorized. Those plaintiffs have licensed much of their content to appear on YouTube in many different guises. That negates any claim that the presence of clips with such content represents obvious infringing activity. Those problems are compounded by the complex co-owner relationships that attend many of plaintiffs' works.
For example, Rodgers & Hammerstein ("R&H") has issued numerous licenses that allow licensees to post R&H content—including musical compositions that are now works in suit—on the Internet, including on YouTube. See Schapiro Ex. 78 (132:24-135:13), Ex. 22 (Responses 26-29). R&H has also specifically authorized its content to appear on YouTube on multiple occasions (see id. Ex. 79 (115:15-120:17)). In one such instance, R&H authorized a clip of "Do Re Mi" (a work in suit) to be on YouTube in a promotional piece on Dutch television. Id. Ex. 78 (194:23-196:10).20 In another instance, R&H authorized Turner Classic Movies to post a clip on YouTube that included the composition "My Favorite Things" (also a work in suit). Id. Ex. 79 (81:2-82:2, 120:11-120:17). R&H has also authorized numerous theater
20 According to its corporate representative, R&H decided to allow this clip to remain on YouTube "[b]ecause it got a fair amount of public attention" and because R&H was "in the process of being bought by a Dutch company and it just seemed to us, from a public relations standpoint, that we were better off licensing it than sending a Takedown notice." Schapiro Exs. 78 (195:8-197:19), 80.
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companies who licensed performance rights to R&H's works to post clips of their productions on YouTube. Id. (29:22-30:22, 31:6-32:12).
Similarly, Cal IV has not only issued general Internet licenses for its content (including works in suit (id. Ex. 81), but has also authorized such works to appear specifically on YouTube for promotional purposes. Id. Ex. 82 (Cal TVs head of licensing stating "we are willing to grant certain promotional licenses for the YouTube platform"). Stage Three has likewise issued numerous licenses for its musical compositions (including works in suit) to appear on YouTube. Id. Ex. 83 (Responses 17, 19). For example, when Stage Three licensed the work in suit "Rock & Roll Queen" to appear in the film RockNRolla, it expressly allowed both the film company and the band to post the synchronized content on YouTube. Id. Ex. 84, Ex. 85 (117:20-118:20, 123:4-124:5). Cherry Lane too has authorized its content, including works in suit, to be posted on YouTube. Id. Ex. 86 (Response 17). Cherry Lane even sponsored a contest that specifically invited participants to "record their own versions of [a Cherry Lane] song and post the video to www.youtube.com." Id. Ex. 87.
These are not isolated examples. Most of the other putative class plaintiffs— including Tur, Bourne, Carlin, and X-Ray Dog—also have licensed third parties to put their content (including works in suit) on YouTube. Id. Ex. 88, Ex. 89 (Responses 16-18), Ex. 90 (Responses 17, 19), Ex. 91 (Responses 17, 19), Ex. 92 (124:7-125:5), Ex. 93. While FFT and Music Force deny having authorized actual works in suit to appear on YouTube, they both concede that they have posted on
50
YouTube other content that they own or authorized others to do so. See id. Ex. 94 (188:5-197:24), Ex. 95, Ex. 96, Ex. 97 (acknowledging that FFT employee created a YouTube account through which he uploaded videos "to create a little buzz"), Ex. 98 (Responses 30, 40, 41).21 And several of the soccer clubs that make up (and own) the Premier League have created official YouTube "channels" to which they have uploaded a variety of videos, including footage of matches. Id. Ex. 17 (276:9-297:7), Ex. 100, Ex. 101. These plaintiffs did not inform YouTube of the details of their licensing arrangements that allow the posting of their content on YouTube. See, e.g., id. Ex. 102 (206:14-207:19), Ex. 85 (126:13-17), Ex. 92 (135:18-23), Ex. 79 (121:15-20). Thus, even assuming that YouTube had recognized a given clip as containing a particular class plaintiffs copyrighted material, it would not have been apparent to YouTube whether that clip was licensed or unlicensed.22
Apart from the putative class plaintiffs' extensive licensing practices, many of plaintiffs' works—including works in suit—are co-owned by other parties. See id. Exs. 83 at Response 68; 98 at Response 25; 103 at Response 33; 104 (48:16-49:12). Each of those co-owners of those works—and each of their potential licensees— would have the right to authorize the appearance of the work on YouTube
21 Despite Music Force's denial, there is evidence that Music Force at least impliedly authorized one of its works in suit to be on YouTube. See Ex. 98 (Response 44) (admitting that the YouTube account "grumpoM' was created by a Music Force employee); Ex. 99 (screenshot of the channel for "grumpoM," which identifies a music video for the work in suit "What You Won't Do For Love" as a "Favorite" video).
22 These complex licensing issues are further complicated by several putative class plaintiffs' use of foreign sub-publishers to license their content in various regions of the world. See Section I.D.2.b.iii, infra.
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independently of the plaintiffs. See Jasper v. Sony Music Entm't, Inc., 378 F. Supp. 2d 334, 346 (S.D.N.Y. 2005) ("It is basic copyright law that joint authors may legally grant a license to a third party to exploit the work without co-author consent."). Accordingly, even if YouTube had perfect knowledge of class plaintiffs' licensing activities—which it certainly did not—YouTube would have had no way of knowing whether any given clip incorporating jointly owned copyrights is authorized. Schapiro Ex. 104 (69:7-71:2) (admitting that Cal IV has no knowledge about licenses granted by other co-owners for a work in suit and would "probably not" be able to acquire such information).
Complex licensing and co-ownership arrangements of this type confirm the near-impossibility of determining whether the presence on the site of a specific clip (for which YouTube has received no DMCA takedown notice) is authorized. Cf. Faulkner v. Nati Geographic Society, 211 F. Supp. 2d 450, 475 (S.D.N.Y. 2002) (knowledge of infringement could not be established because questions of copyright ownership "turn[| on complex analysis of contractual arrangements"). Like the evidence of the widespread stealth marketing practiced by Viacom and other media companies, therefore, the plaintiffs' tangled licensing and co-ownership issues rebut any claim that the mere presence of material that might somehow be associated with these plaintiffs would be a fact or circumstance from which infringing activity is apparent.
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(v) Fair use and de minimis use further negate plaintiffs' ability to show knowledge.
Even if plaintiffs could somehow overcome all the problems described above, considerations of fair use (and de minimis use) would still preclude a finding of knowledge.
The fair-use doctrine allows limited use of copyrighted material without requiring permission from the rights holders. See generally Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). Because neither the fair use (nor the de minimis use) of a copyrighted work is an infringement (see 17 U.S.C. § 107; On Davis v. Gap, Inc., 246 F.3d 152, 172 (2d Cir. 2001)), any clip for which there is even a debatable claim of fair use is not one that YouTube had any obligation under the DMCA to unilaterally remove. A service provider cannot lose its safe harbor simply because it might err in making what are often complex or difficult fair-use determinations. H.R. Rep. No. 105-551 (Part 2), at 57-58).23 Any other result would unduly limit the artistic, political, and personal freedom embodied in the fair-use doctrine, which "fosters artistic dialogue and influence within the copyright regime by protecting authors' rights [to] build upon and transform existing works without having to purchase a license to do so." Abilene Music, Inc. v. Sony Music Entm't, Inc., 320 F. Supp. 2d 84, 88 (S.D.N.Y. 2003).
23 See generally Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1259 (2d Cir. 1986) ("[T]he fair use determination often requires a complex and subtle evaluation of numerous mixed issues of fact and law."); Leibovitz v. Paramount Pictures Corp., 948 F. Supp. 1214, 1219 (S.D.N.Y. 1996) (describing fair-use analysis as "a complex and daunting task").
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Many of the clips in suit are plausible (indeed powerful) examples of fair and/or de minimis uses:
• 1:27 home-movie of middle-aged man dancing in his living room to ZZ Top song with his family laughing at him in the background (Schapiro Exs. 196A/196B);
• homemade instructional video showing how to play "Jesus Just Left Chicago" on guitar (Schapiro Exs. 197A/197B);
• short fan tribute video to soccer player Eduardo Da Silva using only a few seconds of match footage (Schapiro Exs. 198A/198B);
• home video of user discussing YouTube contest with music playing in the background (Schapiro Exs. 199A/199B);
• lewd parody of "My Favorite Things" (Schapiro Exs. 200A/200B).24 These examples do not even include the scores of clips in suit that are extremely short, including many that are under five seconds long and at least one that is only one second long. Rubin Decl. Iffl 15-16.
For present purposes, the Court need not determine whether such clips actually qualify as fair or de minimis uses. The point rather is that these calls are sufficiently close that—even assuming that YouTube knew that the clip at issue
24 See also id. Exs. 201 A/20 IB (home-video footage of man vacuuming his floor then playing part of "Rough Boy" on the ukulele in his bathtub); Exs. 202A/202B (short amateurish clip of girl singing part of the "Sound of Music" in a field); Exs. 203A/203B (:33 second clip from amateur theatrical performance of "Shall We Dance"); Exs. 204A/204B (1:54 clip of man performing "Edelweiss" on piano in his living room); Exs. 205A/205B (clip from documentary about tennis player Justine Henin that uses a few seconds of French Open match footage); Exs. 206A/206B (30-second clip of man performing Yo-Yo tricks set to excerpt from the song "The Infanta"); Exs. 207A/207B (:34 second clip consisting of original solo guitar performance over instrumental section of "Rough Boy"); Exs. 208A/208B (home video footage of man playing solo guitar and trying to sing "Of Angels and Angles"); Exs. 209A/209B (homemade instructional video of man playing "Blue Jean Blues" on solo electric guitar); Exs. 210A/210B (49-second clip of man playing "Tube Snake Boogie" on solo electric guitar in his bedroom).
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was on the service, contained plaintiffs' copyrighted content, and was posted
without the authorization of any owner, co-owner, or licensee—YouTube still would
not have been able to conclude that it was obviously infringing.
* * *
For all these reasons, plaintiffs cannot raise a genuine issue of fact about
whether YouTube "had the requisite level of knowledge or awareness" that
plaintiffs' copyrights were being violated. Jo, 586 F. Supp. 2d at 1149.
4. YouTube Responded Expeditiously Upon Receiving Notice Of The Claimed Infringements.
Because YouTube otherwise lacked knowledge that any of the clips at issue here were infringing, YouTube's duty to "expeditiously" remove or block access to those videos was triggered only when it received valid notifications of claimed infringement from plaintiffs or their agents. 17 U.S.C. § 512(c)(1)(C).
Most of the clips in suit were first identified to YouTube in takedown notices. Schapiro Ex. 18 (148:8-18). YouTube has long had robust procedures in place for responding to such notices. Levine Decl. H 14-26. YouTube removes almost all videos identified in a paper, email, or online DMCA notice within 24 hours or less. Id. If 19. YouTube has worked hard to further expedite the DMCA process by creating an electronic takedown tool that allows copyright owners to easily search for and mark allegedly infringing videos, and send DMCA notices with a single click. Id. Tf 18. The vast majority of the takedown notices that YouTube receives
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are processed through this tool and thus are removed within minutes. Id. If 19.25 YouTube also employs a dedicated team throughout the world to process manually-submitted DMCA notices and to assist copyright holders in providing the required information in cases where their notices are deficient. Levine Decl. If 19. Applying those procedures, YouTube has removed each of plaintiffs' clips in suit that was the subject of a DMCA takedown notice. Id. If 21.
YouTube has received frequent praise from many different copyright owners, including plaintiffs themselves, for its speedy responses to takedown notices. Levine Decl. If 22.26 Viacom's agent for sending takedown notices (BayTSP), has repeatedly acknowledged that YouTube makes it easy to send DMCA notices and
25 A number of the plaintiffs have signed up for YouTube's automated takedown tool and have used it for years to secure the removal of videos containing their content. See, e.g., Schapiro Ex. 17 (205:25-210:23), Ex. 105, Ex. 106 (describing Premier League's use of the tool), Ex. 107 (94:13-95:11) (acknowledging that YouTube notified FFT about the tool, that FFT signed up "to find an easy way to remove our content," and that the program "help[ed]" FFT remove clips), Ex. 108 (80:22-83:16, 84:8-16) (testifying that the tool has been "very useful" for Cherry Lane in finding and removing videos), Ex. 109 (BayTSP describing YouTube's takedown tool as "very simple and effective").
26 See also Schapiro Ex. 110, Ex. Ill, Ex. 112 (72:21-73:6, 82:21-83:15; 87:8-13), Ex. 113 (email from VHl's online marketing director thanking YouTube for the "quick turnaround" in removing clips), Ex. 114 (VIA10405834) (internal Viacom email explaining that YouTube has "a process in place for removal of videos, and do it all the time"), Ex. 115 (internal Viacom email describing YouTube's response to takedown requests as "so great"), Ex. 116 (email to YouTube praising the "speedy action" in responding to informal takedown request), Ex. 117 (138:25-139:17) (stating that YouTube responds to takedown notices on average "within 24 hours"), Ex. 78 (157:18-22) (stating that YouTube has always responded expeditiously to takedown notices), Ex. 20 (71:9-17) (admitting that YouTube responds to takedown notices "very quickly"), Ex. 102 (147:16-23) (agreeing that YouTube has always responded "promptly" to takedown notices), Ex. 107 (126:5-127:22) (admitting that YouTube removed all clips-in-suit within "days" of receiving a takedown notice), Ex. 118, Ex. 119 (showing that YouTube responded to XRD's takedown notice within 24 hours).
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that it removes the material identified quickly and effectively.27 Perhaps the best example is what happened in February 2007 when, on a single day, Viacom sent YouTube a mass takedown notice pertaining to approximately 100,000 different videos, including certain of the clips in suit. Schapiro Ex. 122 (494:4-17); Levine Decl. 1 20; Schaffer Decl. Tf 14. For months, Viacom had been accumulating these notices because it wanted, for strategic reasons, to send them all at one time. Schapiro Ex. 4 (149:4-25;195:9-196:14), Ex. 123 ("We are queuing up the takedown notices as instructed by Adam [Cahan] at MTVN. He wants to hold the notices as part of his strategy."), Ex. 124, Ex. 125. Despite the unnecessary burden imposed by Viacom's stratagem, YouTube was able to remove virtually all the videos identified in Viacom's mass notice by the next business day. See Levine Decl. 1 20; Schaffer Decl. 1 14.
Accordingly, there is no evidence raising a genuine factual issue about whether YouTube responded expeditiously to the takedown requests it received for the clips in suit. See Io, 586 F. Supp. 2d at 1150 (granting summary judgment where evidence showed that, when service provider "receives DMCA-compliant notice of copyright infringement, it responds and removes noticed content as necessary on the same day the notice is received (or within a few days thereafter)").
27 Id. Ex. 120 (BayTSP to YouTube: "I want to bring YouTube up and give you credit for the means and speed you perform the take down task."), Ex. 121 (BayTSP to YouTube: "We enjoy the relationship we have with you and always talk positively about the YouTube experience when it comes to copyright enforcement.").
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D. YouTube Lacks The Ability To Control The Alleged Infringing Activity.
The final relevant element of the Section 512(c) safe harbor is that the service
provider "not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to control
such activity." 17 U.S.C. § 512(c)(1)(B). A service provider loses safe-harbor
eligibility only if the plaintiff can show both that the service provider had the right
and ability to control the alleged infringements and received a financial benefit
directly attributable to those infringements. Corbis, 351 F. Supp. 2d at 1109.
Plaintiffs can make neither showing. We begin by addressing control: plaintiffs
have advanced several theories as to why YouTube "controls" infringing activity on
its site—none of them finds support in the DMCA or the cases interpreting it.
1. YouTube's Control Over Its System Does Not Give It Control Over Infringing Activity.
As with knowledge, the DMCA's control inquiry is specific, not general. The analysis focuses on the service provider's legal and practical control over the particular infringing activity at issue. The statute's text makes that clear: the question is whether the service provider has the right and ability to control "the infringing activity" alleged by the plaintiff and to which a financial benefit is directly attributable. § 512(c)(1)(B) (emphasis added).
Plaintiffs contend that YouTube has the right and ability to control the allegedly infringing activity at issue here because it takes place "on YouTube's own website . . . not on . . . websites controlled by others." Viacom Am. Compl. 1 39; SACAC 1 78. That claim ignores the text and structure of the DMCA and the cases
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interpreting it, which make clear that a service provider's control of its system cannot equate to an ability to control particular infringing activity: "the plain language of Section 512(c) indicates that the pertinent inquiry is not whether [the service provider] has the right and ability to control its system, but rather, whether it has the right and ability to control the infringing activity." Io, 586 F. Supp. 2d at 1151. Congress presupposed that service providers would have control over their systems; the safe harbor applies to material "that resides on a system or network controlled or operated by or for the use of the service provider." § 512(c)(1) (emphasis added). If a service provider's control of its system amounted to control of whatever infringing activity occurred on that system, the protections offered by 512(c) would be illusory.
Moreover, "the 'right and ability to control' the infringing activity, as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored on its system." Hendrickson, 165 F. Supp. 2d at 1093. That is because the statute requires service providers to respond expeditiously to DMCA notices by disabling access to the material claimed to be infringing. § 512(c)(1)(C). Maintaining the legal right and practical ability to take such actions thus cannot constitute the right and ability to control infringing activity. "To hold otherwise would defeat the purpose of the DMCA and render the statute internally inconsistent." Hendrickson, 165 F. Supp. 2d at 1093; see also UMG II, 665 F. Supp. 2d at 1113-15; Io, 586 F. Supp. 2d at
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1152; Corbis, 351 F. Supp. 2d at 1110. YouTube thus did not control the infringing activity alleged merely because the clips in suit appeared on YouTube's service.
The critical difference between a service provider's control over its site and its ability to control any infringing activity that may occur there is particularly pronounced for a service like YouTube, which hosts an overwhelming abundance of videos that no one has ever claimed (or could claim) are infringing. See Walk Decl. 1 3. It is not remotely the case that YouTube exists "solely to provide the site and facilities for copyright infringement." Io, 586 F. Supp. 2d at 1153. Even the plaintiffs do not (and could not) suggest as much. Indeed, they have repeatedly acknowledged the contrary.28 Because YouTube houses such an overwhelming volume of video content that is not, and could not possibly be, claimed to be
28 See Schapiro Ex. 126 (VIA02159159-64) (reporting conclusion of Viacom's "best minds" that "YouTube is the dominant platform of choice for [] audiences as they migrate to using video to express themselves" and "consumption of ^branded' content of YT is relatively low"), Ex. 127 (129:21-130:14) (former Viacom employee testifying that "one of the functions that YouTube served was to enable individuals to share videos, that they had created themselves, with their friends and family, and even the public at large.), Ex. 128 (79:7-80:3, 81:17-24, 83:12-16, 84:14-18) (Chairman of MTVN admitting various socially beneficial uses of YouTube and defending her own use of YouTube as "legitimate"), Ex. 129 (215:25-218:8, 224:2225:13) (Viacom's Executive Vice President admitting to watching non-infringing videos on YouTube), Ex. 130 (19:10-14, 55:21-24) (President of MTVN's Entertainment Group acknowledges that content owners create channels on YouTube to showcase their content and considers the use of YouTube to watch videos to be "legitimate"), Ex. 25 (253:10-19) (MTVs Executive Vice President admitting to watching authorized videos on YouTube after following the link from an artist's or label's website), Ex. 112 (16:19-25) (VH1 Vice President uploads vacation videos to YouTube to share with friends and family), Ex. 20 (100:12-103:9), Ex. 131 (in-house counsel at Carlin America has watched hundreds of videos on YouTube and has posted at least 11 videos), Ex. 78 (R&H general counsel visits YouTube "mostly to see cat videos").
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infringing, YouTube's control over its various systems in no way "equate[s] to the
right and ability to control infringing activity." Id.
2. Legal And Practical Considerations Defeat Any Claim That YouTube Could Control The Infringing Activity By More Actively Policing Its Service.
Plaintiffs also suggest that YouTube controls the allegedly infringing activity
because it did not proactively find and remove the clips in suit. Viacom Am. Compl.
If 39 (alleging control because YouTube failed to find and remove videos "obviously
infringing Plaintiffs' copyrights"). That argument fails for multiple reasons: the
DMCA expressly provides that service providers are not required to monitor for
copyright infringement to qualify for safe-harbor protection; such affirmative
monitoring of hundreds of millions of videos is impracticable; and in any event
monitoring would not be effective in allowing YouTube to reliably distinguish
authorized from unauthorized material, as confirmed by plaintiffs' own serial
inability to make such distinctions.
a. The control test does not require service providers to monitor their services for potential infringement.
First, a service provider's ability to monitor its service for possible infringement cannot amount to potentially disqualifying control. The statute expressly bars courts from "condition[ing] the applicability" of the safe harbors on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity." 17 U.S.C. § 512(m). Accordingly, a provider's "right and ability to implement filtering software, standing alone or even along with [its] ability to control users' access, also cannot be the basis for concluding that [it] is not eligible
61
for the 512(c) safe harbor." UMG II, 665 F. Supp. 2d at 1113. The control inquiry does not require a service provider to "adopt specific filtering technology and perform regular searches" for potentially infringing material. Id.
Second, as a practical matter, YouTube could not manually review the massive volume of videos uploaded to its site in an effort to determine what those videos are and whether they infringe plaintiffs' copyrights. Various witnesses unaffiliated with YouTube have recognized as much.29 We have described above the sheer scale at which YouTube operates. Hundreds of thousands of new videos are submitted to YouTube each day, over 24 hours of new video footage every minute. Hurley Decl. Tf 26. Faced with a service much smaller and less diverse than YouTube, which had user-submitted videos totaling only in the hundreds of thousands, the court in Io held, as a matter of law, that "no reasonable juror could conclude that a comprehensive review of every file would be feasible." Io, 586 F. Supp. 2d at 1153. That is true a fortiori of YouTube's hundreds of millions of videos.
For YouTube to restructure its operations to try to manually prescreen every user-submitted video would not merely have been infeasible. It would require a fundamental change in the experience that YouTube offers its users, one that the DMCA, by its terms, does not require. The court in Io thus squarely rejected the
29 See, e.g., Schapiro Ex. 132 (92:15-21) ("a big website such as YouTube's would be very difficult to find all of the content that you're looking for, just because of the volume would preclude any process that involves a manual review of videos"), Ex. 133 (36:23-37:16) (Viacom witness testifying that it would have been "cost-prohibitive" to manually review videos uploaded to Viacom-owned video service because it received hundreds of clips a day).
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argument that "Veoh should have changed its business operations to prevent
infringing activity from occurring on its site." 586 F. Supp. 2d at 1154. "Declining
to change business operations is not the same as declining to exercise a right and
ability to control infringing activity." Id. Indeed, the notion that a service provider
like YouTube must "reduce or limit its business operations is contrary to one of the
stated goals of the DMCA," which aims to facilitate, not squelch, electronic
commerce. Id. (citing S. Rep. 105-190, at 1-2). For these reasons alone, YouTube
cannot be charged with control over the allegedly infringing activity.
b. Plaintiffs' own inability to distinguish authorized from
unauthorized material on YouTube shows that YouTube lacks practical control over the alleged infringing activity.
Even assuming, however, that it were somehow feasible for YouTube to manually screen all (or even a substantial portion) of the videos on the service, that would not give YouTube the practical ability to control the infringing activity that plaintiffs allege here. That is because, as in Io, "there is no assurance that [YouTube] could have accurately identified the infringing content in question." 586 F. Supp. 2d at 1153. Indeed, many of the same facts that make it impossible for the plaintiffs to establish that YouTube had disqualifying knowledge simultaneously undermine their claim of control. See Section I.C.3.b, supra. Perhaps the most powerful example is plaintiffs' persistent inability to distinguish material that they have authorized to be on YouTube from material they now contend is unauthorized. See Io, 586 F. Supp. 2d at 1153 (relying on evidence of plaintiffs' own inability "to readily identify which of it works allegedly were infringed" in finding that service provider lacked practical control over the alleged infringing activity).
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(i) Plaintiffs have had persistent difficulties determining
which of their materials are authorized to be on YouTube.
The varied uses that plaintiffs have made of YouTube make it difficult even for them to easily determine whether videos containing their content are actually unauthorized to be on YouTube.30 Indeed, Viacom recognized that without detailed instructions and elaborate record-keeping, even its own monitoring agents would be unable to effectively distinguish clips that Viacom wanted to remain on YouTube (and other sites) from those that it wished to take down.31
30 Schapiro Ex. 47 (45:14-46:17) (Paramount marketer admitting that she could not confirm that a clip was authorized without reference to Paramount's "array of approval processes," both "internal and external"), Ex. 25 (239:14-242:11) (MTV marketer admitting that, without speaking to other employees, she could only "guess" as to whether a particular video clip was "leaked" to YouTube at MTVs direction), Ex. 27 (55:2-56:12) (Paramount executive testifying that no one in her group kept a complete list of all of the account names used to upload Paramount materials to YouTube because "it's a large company"), (244:2-19) (same witness admitting that she needed to "check with someone in publicity" to determine authorization of various clips from Paramount movie because "certain clips were approved for different usages."), Ex. 134 (159:7-21) (Viacom employee admitting that he could not know whether Viacom content he viewed on YouTube was authorized without a determination from the legal department), Ex. 11 (150:12151:2) (BayTSP representative agreeing with statement that "there is no way to tell from a full episode [on YouTube] whether or not the person that uploaded it had authority").
31 Schapiro Ex. 135 (agenda for meeting between BayTSP and Paramount to discuss, inter alia, Bay's need to receive "[c]opies of materials being posted so we can distinguish between authorized and un-authorized materials"), Ex. 136 (109:19112:3) (describing Paramount's instruction to BayTSP that "if they had some sense that it was an unauthorized Paramount clip, they should put in a call [to Paramount marketing for confirmation] prior to issuing a takedown notice"), Ex. 27 (172:4-173:1) (Paramount marketing executive describing process Paramount put in place with BayTSP "not only to determine if content should be removed or not, but to identify what our approved marketing materials were so we could all be on the same page in terms of what that material consisted of), Ex. 57 (email between BayTSP and MTV to "make sure that we are all on the same page" regarding the applicable takedown rules), Ex. 137 (BAYTSP 003742451) (Paramount instructing
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In an effort to prevent the removal of videos that Viacom had authorized (and to avoid the continued embarrassment of misdirected takedown notices), Viacom has tried to maintain internal "whitelists" of approved YouTube user accounts. Schapiro Ex. 122 (414:24-420:6), Ex. 139 (162:6-10, 167:22-168:7).32 Despite Viacom's efforts, however, its whitelists consistently were incomplete and inaccurate. Rubin Decl. If 5(a)-(f) & Exs. 84-116. It is not surprising, therefore, that Viacom's left hand often didn't know what its right hand was doing.33 Viacom and
BayTSP: "Please do not initiate takedown actions without express prior written approval from us."), Ex. 138 (BAYTSP001125473) (Oct. 2006 email chain with Viacom representative requesting from VH1 marketing personnel "everything that you have seeded thusfar [sic] as we are engaging an outside service to send take down notices for full episodes and clips in excess of 2 minutes and 30 seconds and we don't want to have notices sent for content we seeded" and in response receiving list of YouTube clips and user names for "what we've posted as approved clips to date").
32 Rubin Decl. 1 5(a)-(f); Schapiro Ex. 140.
33 See, e.g., Rubin Ex. 64 (Viacom marketing agent noting that in "big companies like our clients . . . one department isn't aware of what another department is doing."); Schapiro Ex. 65 (Paramount marketing executive explaining that "I need to speak to the publicity dep't before confirming which [videos] should be taken down"), Ex. 141 (BayTSP informing Paramount that "[w]e are going to hold off on removing the clips on YouTube cause we do not know which videos Marketing has put up"), Ex. 142 (VIA11918373) (April 2006 Paramount email chain discussing whether YouTube clips from Paramount film "MI:3," a work in suit, were authorized marketing clips), Ex. 143 (June 2007 email chain showing BayTSP unable to determine whether a series of YouTube clips from Paramount film Transformers, a work in suit, were authorized), Ex. 144 (May 2007 exchange between BayTSP and Paramount about YouTube clip from Transformers, concluding with instruction "Please do NOT take this down"), Ex. 145 (email chain showing confusion within Paramount about whether clips posted to YouTube from the film "There Will Be Blood," a work in suit, were authorized), Ex. 146 ("of course there's always the possibility that the marketing groups within the diff channels are posting without us knowing"); 147 (exchange between BayTSP and Viacom legal: Q: "Is this one of your 'approved' names: MTV2AllThatRocks?" A: "I do not know for sure."), Ex. 148 (BayTSP asking MTV whether "bestweekevertv" was "one of your authorized posting accounts on YouTube").
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its agents routinely made mistakes in sending DMCA takedown notices, demanding
that YouTube remove videos that, on closer inspection, turned out to have been
authorized by Viacom. Rubin Decl. 1 3 & Exs. 42-68 (identifying numerous
mistaken takedowns); Schaffer Decl. TfTf 15-18 (describing mistakes in Viacom's
mass takedown).34 Indeed, Viacom's mistaken takedown requests resulted on
several occasions in the suspension of Viacom's own YouTube accounts or the
accounts of its authorized marketing agents.35 Viacom also erroneously requested
the takedown of many videos that other content owners had authorized to be on
YouTube, causing one frustrated company to complain to YouTube about Viacom's
"blatant abuse of the DMCA takedown statute." Schaffer Decl. 1 17 & Exs. 5-7.
(ii) Even in this litigation. Viacom has been unable to reliably distinguish authorized from unauthorized clips.
Viacom's difficulties distinguishing authorized from unauthorized material on YouTube extend to its identification of allegedly infringing clips in this litigation. Viacom sued YouTube over scores of clips that Viacom (or its agents) had uploaded to YouTube. See Viacom's Notice of Dismissal of Specified Clips With Prejudice ("Notice of Dismissal") (Feb. 26, 2010). Viacom made those erroneous infringement allegations despite engaging in what it described as a "multi-step procedure
34 See also Rubin Ex. 67 (Oct. 2008 email regarding mistaken Viacom takedown of clips from Rob and Big, a work in suit, uploaded to YouTube by one of Viacom's marketing agents); Schapiro Ex. 149 (e-mail explaining that BayTSP mistakenly took down authorized Paramount clip), Ex. 150 (emails re mistaken takedown of Paramount video on YouTube).
35 Schaffer Decl. 1 15 & Ex. 4 (suspension of Spike account); id. If 16 (suspension of official Paramount account); id. (suspension of Viacom marketing account); Rubin Decl. 1 3 & Exs. 42, 56-67 (identifying numerous other examples both before and during this litigation).
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designed to accurately identify infringing content." Schapiro Ex. 178 (Feb. 28, 2008 Decl. of Michael Housley). It was only after YouTube's discovery efforts revealed what had happened that Viacom realized its mistakes, leading it—on what was to have been the final day of discovery (October 15, 2009)—to seek to withdraw hundreds of allegedly infringing clips from this case. Rubin Decl. If 9.
The story does not end there, however. Viacom said that its attempted withdrawal of those clips was based on yet another "quality check" that revealed the mistaken identifications. By the time it actually got around to dismissing those clips, however, more than four months later, Viacom had discovered still more clips in suit that its marketing agents had uploaded, but that it had missed in its previous analyses. See Notice of Dismissal. Viacom's belated discovery of these additional authorized clips contradicted its verified interrogatory response, in which Viacom had sworn that it had uploaded or authorized none of the clips listed on its October 15, 2009 amended list of clips in suit. Schapiro Ex. 179. But even now— after all of Viacom's checking and rechecking, after its eleventh-hour bid to dismiss hundreds of its infringement allegations, after its interrogatory response, and after its latest attempt to clean up its list of allegedly infringing clips—Viacom still has not successfully identified all of the clips in suit that Viacom or its agents posted to YouTube. Despite all of Viacom's efforts, it continues to assert claims of infringement against clips that Viacom or its agents uploaded to YouTube. See Rubin Decl. 1 14 (citing examples).
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These serial misidentifications bear directly on the control inquiry. In
finding that Veoh lacked practical control, the court in Io relied on the fact that the
plaintiff "in the course of discovery" had dropped three of the works that it had
originally claimed had been infringed. 586 F. Supp. 2d at 1153. Viacom's problems
go far beyond that. Both before and during this litigation, Viacom has been unable
to readily or consistently discern which clips on YouTube containing its material
were authorized and which were not. And if Viacom cannot effectively distinguish
what it authorized from what it did not, YouTube has no chance of doing so.
(iii) The class plaintiffs similarly have had difficulties
distinguishing authorized from unauthorized content.
The putative class plaintiffs have had similar difficulties in determining what uses of their works on YouTube are authorized.36 Like Viacom, class plaintiffs have sent takedown notices to YouTube that they eventually had to retract when it turned out that the videos at issue were actually authorized. These problems stem in part from the complex licensing and co-ownership practices described above. See Section I.C.3.b.(iv), supra. For example, Cal TV withdrew a DMCA notice it had sent to YouTube after another rights holder (Universal Music Group) filed a counter-notice: "At this time, CAL IV will not object to these URLs remaining on
36 Schapiro Ex. 151 (e-mail between Cherry Lane employees asking whether a clip on YouTube had been licensed), Ex. 152 (111:4-24, 115:14-24) (even after consulting artist's manager about YouTube clip, Cherry Lane licensing director still could not tell "whether or not it was [licensed]."), Ex. 85 (192:17-193:10) (acknowledging that Stage Three must check extensive licensing database before sending takedown notices); cf. id. Ex. 153 (130:21-131:20) (witness describing "multi-step process" of determining whether a clip on YouTube is authorized: "One would have to put in [the] URL, see if it's still operable, identify if there was a sound recording associated with it and then conduct research to determine if it was licensed.").
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your website until further clarification of ownership or licensing rights can be obtained." Schapiro Ex. 154, Ex. 103 (Response 23), Ex. 155 (68:9-72:14). Stage Three similarly withdrew a DMCA notice after one of its licensees (Eagle Rock Entertainment) pointed out that it was authorized to post the clip on YouTube. Id. Ex. 156 (ST00105023-26), Ex. 102 (151:21-154:17) (acknowledging that the takedown request notice was a "mistake" by Stage Three and its lawyers).
Further complications flow from the fact that certain of the putative class plaintiffs rely on a global network of sub-publishers to license their content in various regions throughout the world.37 Because nothing in a YouTube clip itself reveals whether it was authorized by a sub-publisher, it may not be apparent even to the plaintiffs themselves whether a given video was unauthorized.38 Determining authorization is not the only problem; the putative class plaintiffs have at times felt it necessary to retain professional musicologists just to determine whether certain YouTube clips contain content that was copied from one of their musical compositions. See, e.g., id. Ex. 102 (171:23-172:21), Ex. 157, Ex. 85 (217:6220:11).
* * *
37 See Schapiro Ex. 92 (150:13-22), Ex. 79 (100:7-15), Ex. 102 (61:25-63:22), Ex. 152 (20:15-22), Ex. 117 (153:15-154:10).
38 See, e.g., Schapiro Ex. 92 (158:11-160:7) (because YouTube clip was in an unrecognizable "Asian language of some sort," X-Ray Dog had to consult with foreign sub-publisher to determine whether it was authorized to be on YouTube; estimating that the process took "several" hours), Ex. 79 (13:23-18:20, 114:3-14) ("It did take me a couple of emails and a couple of phone calls to determine that that clip [on YouTube] was not authorized").
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Plaintiffs' problems in quickly and reliably making determinations about their own content underscore some of the myriad challenges that YouTube—which has far less relevant or accurate information about plaintiffs' marketing practices, authorization decisions, and licensing and ownership arrangements—would face in even trying to distinguish, on its own, videos that are actually unauthorized from the vast sea of authorized user-submitted videos. Plaintiffs' confusion belies any suggestion that YouTube has the practical ability to control the infringing activity alleged.
3. Any Infringing Activity Occurs Despite YouTube's Extraordinary Efforts To Combat Infringement.
The court in Io pointed to evidence that "Veoh has taken steps to reduce, not foster, the incidence of copyright infringement on its website" as confirming its conclusion that Veoh did not have the practical ability to control the infringing activity that plaintiffs there had alleged. Io, 586 F. Supp. 2d at 1154. That conclusion applies even more powerfully to YouTube. Cf. Schapiro Ex. 3 (27:2028:4) (former Viacom CEO and an investor in Veoh not aware of anything Veoh does to protect copyright that YouTube does not do).
YouTube takes many steps to enforce its terms of use and assist content owners in keeping unauthorized material off the service. Videos that infringe copyright are contrary to YouTube's purpose and were forbidden by its earliest terms of service. Hurley Decl. If 8; Schapiro Ex. 158 (49:8-16). And, as the site has grown, YouTube's tools for dealing with copyright issues have become increasingly more sophisticated and robust. Levine Decl. 1 18. YouTube's copyright-protection
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apparatus of course includes full compliance with the DMCA. See Io, 586 F. Supp.
2d at 1153-54. And, even though the DMCA imposes no "obligation on a service
provider to implement filtering technology at all" (UMG II, 665 F. Supp. 2d at
1111), YouTube has done just that, starting with its hashing technology in 2006,
adding audio-based fingerprinting in early 2007, and launching an even more
robust video-based content identification technology later that same year. King
Decl. If If 4, 8, 14-15. (We discuss YouTube's various copyright-protection efforts in
greater detail below. See Section H.B.2.C., infra.) There is no evidence that
YouTube overrode those filtering systems to allow any of the clips at issue here to
be posted or remain on the service.
For these reasons, there is no genuine factual dispute as to whether YouTube
has the "right and ability to control" the instances of infringing activity alleged in
this case. The Court thus need not even address the issue of financial benefit in
order to conclude that YouTube is entitled to the Section 512(c) safe harbor.
E. YouTube Did Not Receive A Financial Benefit Directly Attributable To The Alleged Infringing Activity.
Even assuming that YouTube did somehow have the right and ability to control the specific infringing activity alleged here, YouTube still would be entitled to safe harbor protection because it does not derive a financial benefit "directly attributable" to that activity. § 512(c)(1)(B). Like nearly all online service providers, YouTube earns revenue when users watch or click on the advertisements that run at various places on its website. YouTube's business model is entirely
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legitimate, and YouTube does not seek to profit from infringement so as to run afoul
of the DMCA's financial-benefit test.
1. The DMCA Protects Legitimate Services That Derive Their Value From Sources Other Than Infringement.
The financial-benefit inquiry, like knowledge and control, focuses on the particular alleged infringements at issue. The statutory text, which refers to the benefit directly attributable to "the infringing activity" (emphasis added) makes that clear. 17 U.S.C. § 512(c)(1)(B). In determining which financial benefits are "directly attributable" to a particular alleged infringement, courts must be guided by the DMCA's legislative history and purpose. The financial benefit test included in Section 512(c) nods to the standard for vicarious liability under the common law of copyright infringement. Cf. Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963). But the DMCA did not simply codify the common-law standard for vicarious liability.
To the contrary, Congress expressly crafted the safe harbors to protect even those service providers who might be found vicariously liable under the common law. See S. Rep. 105-190, at 20; CoStar, 373 F.3d at 555. Thus, rather than simply codify the common-law vicarious-liability standard for "financial benefit," Congress instructed courts applying the new DMCA test to "take a common sense, fact-based approach, not a formalistic one." S. Rep. 105-190, at 44; H.R. Rep. 105-551 (Part 2), at 54. Reading Section 512(c)(1)(B) as coterminous with the common law would be entirely at odds with that congressional judgment. Instead, the DMCA's financial-benefit analysis must be applied in a way that gives service providers greater
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protection from liability than they would have enjoyed under the common law of vicarious infringement. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12B.04[A][2][b] (2008).39
The legislative history of Section 512(c)(1)(B) enunciates the proper test for financial benefit under the DMCA. Both the Senate and House reports instruct that "a service provider conducting a legitimate business would not be considered to receive a 'financial benefit directly attributable to the infringing activity' where the infringer makes the same kind of payment as non-infringing users of the provider's service." S. Rep. 105-190, at 44 (emphasis added); H.R. Rep. 105-551 (Part 2), at 54 (same). In other words, a service provider earns a "financial benefit directly attributable to the infringing activity" only when the infringing activity at issue generates revenue different in kind from the revenue the service provider earns from noninfringing activity, or when its business model is similarly illegitimate.
The financial-benefit test described by Congress distinguishes between service providers "conducting a legitimate business" and those whose value "lies in providing access to infringing material." S. Rep. 105-190, at 44-45; H.R. Rep. 105-
39 The Ninth Circuit thus went astray in CCBill when it suggested, without any analysis, that the DMCA's financial-benefit language "should be interpreted consistent with the similarly-worded common-law standard for vicarious copyright liability." 488 F.3d at 1117. In making that statement, the court considered none of the points made above—indeed, the issue had not even been briefed by the parties or addressed by the district court. See CCBill, 340 F. Supp. 2d at 1105. No court in the Second Circuit (or elsewhere) has followed that particular aspect of CCBill, and there is no reason for this Court to embrace it.
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551 (Part 2), at 54.40 Providers whose services have no real value other than by facilitating copyright infringement or that are intentionally skewed to profit from infringement fall on the wrong side of Section 512(c)(1)(B). In contrast, service providers with a legitimate business model—one that derives genuine financial gain from noninfringing activity and that does not favor infringing uses—are protected. 2. YouTube Has A Legitimate Business Model. YouTube conducts a legitimate business, and its revenue model does not
favor infringing material in any way. YouTube therefore does not earn a "financial
benefit directly attributable to the infringing activity" for purposes of the DMCA.
a. YouTube has an overwhelming array of legitimate uses that provide significant value to YouTube and its users.
Legitimate uses of YouTube are vast and incontestable. These include the wide array of personal videos created and uploaded by YouTube millions of users, as well as the professional videos that appear on the site as a result of the many licensing deals YouTube has negotiated with content owners large and small. Walk Decl. Tf 4; Maxcy Decl. If 9. And there is no question that YouTube generates significant value from this vast set of authorized videos. Between 2006 and 2009, YouTube entered into thousands of direct partnership agreements—with content
40 Congress wanted to protect legitimate service providers like the then-popular AOL, which charged users to connect to the Internet in increments of time. The committee reports thus indicate that a provider who receives "fees based on the length of the message (per number of bytes, for example) or by connect time," does not earn a disqualifying financial benefit, even if its service is being used in part for infringement (which might increase the amount of overall usage and thus increase revenues to AOL). S. Rep. 105-190, at 44-45.
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owners including CBS, NBC, the NBA, Universal Music Group, and Warner Music Group—that provide for YouTube to run advertising against videos claimed by those owners and to share the revenue from that advertising. Maxcy Decl. TfTf 9-10. By themselves, YouTube's revenue-sharing deals generated approximately 35 percent of YouTube's overall revenue between 2007 and 2009. Reider Decl. If 5. Most of YouTube's other revenue comes from advertisements that run on the YouTube homepage—for which advertisers generally pay a daily flat fee—and on the pages that list the results of users' search queries. Reider Decl. If 5.
It is not the case therefore that YouTube's value "lies in providing access to infringing material." H.R. Rep. 105-551 (Part 2), at 54. To the contrary, YouTube is just the type of "legitimate" service provider—with a broad range of noninfringing uses that provide educational, cultural, social, and political benefits to its users and economic value to itself—that Congress intended the DMCA to protect.
b. YouTube earns revenue from advertising, not infringement.
In line with the statutory language and legislative history cited above, because YouTube runs a legitimate business, it does not trigger the DMCA's financial-benefit provision as long as the revenue it earns from its noninfringing uses is not different, in kind or degree, from any revenues that might be linked to the infringing activity plaintiffs allege here.
YouTube does not earn differential revenue depending on whether material on its system is or is not infringing. YouTube generates revenue from advertising. Reider Decl. 1 5. Although YouTube's precise advertising options have changed
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somewhat as the service has grown and evolved, in general YouTube offers three basic types of advertising:
• Each day, a single advertiser is allowed to purchase an ad that runs for a 24-hour period on the YouTube home page. Id. If 3.
• YouTube allows advertisers to purchase advertising on the pages where the results of users' search queries are displayed. Id. Search results are displayed as a list of thumbnail images (and associated text supplied by users) of the videos that are responsive to the users' query. Solomon Decl. If 11.
• YouTube allows ads to be displayed on pages where users can watch videos uploaded or "claimed" by one of YouTube's many content partners (content owners who have expressly indicated to YouTube that they want advertising to appear alongside videos containing their content). Reider Decl. If 3.
These advertising offerings do not in any way favor videos that may not have been properly authorized to appear on YouTube over authorized videos. Id. If 11. Nor does YouTube intentionally set out to capture revenue from users' potentially infringing activities. Id. The revenue earned from the homepage ads, for example, is fixed based on how long the ad runs and has no connection to the presence of any given video (or kind of videos) that may available for viewing on YouTube at any given time. Id. If 6. Similarly, the ads that appear on search-results pages have nothing to do with the presence of any video on YouTube, or even with the particular videos that are listed in response to a user's search. See Schapiro Ex. 159 (172:21-25) ("Our advertising system is a completely separate system....It was independent of search. And search runs independent to advertising"). As for "watch-page" ads, YouTube allows such advertising to appear only alongside videos
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that have been posted or claimed by a content partner who has affirmatively instructed YouTube to display advertising next to its videos. Reider Decl. If 9.
At certain times prior to January 2007, watch-page ads were not limited (as they have been since) to pages displaying videos affirmatively claimed and designated for advertising by a content partner. Id. If 10. But that was hardly an illegitimate business model, and it certainly did not allow YouTube to generate differential or disproportionate revenue from potential copyright infringements. To the contrary, YouTube received the same rates from ads that appeared on watch pages regardless of what videos those ads appeared next to. Id.
YouTube, in short, does not engage in financial discrimination in favor of
infringing material, and thus has no disqualifying "financial benefit."
c. A service provider that accepts user-submitted content does not derive a disabling financial benefit by running ads on its site.
YouTube's advertising-based business model is not merely legitimate, it is the industry standard. Id. If 7. Other video-hosting services such as Daily Motion, Vimeo, Veoh, and Atom (which Viacom operates), as well as many other popular websites relying on user-submitted content (including MySpace and Facebook), all earn revenue from advertising and offer ad products comparable to those allowed by YouTube. Id. If 12. Given these established practices, it cannot be the case that any service provider that hosts user-submitted content and that makes money by running advertisements fails the DMCA's financial-benefit test. That result would gut Section 512(c)'s safe harbor, directly threatening the standard business model of online service providers engaged in storage and display of user-posted material.
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Nothing in the DMCA signals a congressional intent to so upend standard Internet
business practices—practices that have the additional benefit of allowing service
providers to keep their services free to ordinary users uploading and viewing
content. See Io, 586 F. Supp. 2d at 1154.
YouTube does not receive a "financial benefit directly attributable to the
infringing activity" by earning revenue the same way as nearly all comparable
service providers—through an advertising-based business model that in no way
favors infringing material or seeks to benefit from it.
II. YOUTUBE IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' INDUCEMENT CLAIMS.
Because YouTube is entitled to DMCA safe-harbor protection, it cannot be held liable for damages for any of plaintiffs' claims of direct or secondary infringement. Plaintiffs have suggested otherwise, at least insofar as their claims are premised on the theory of inducement described in the Supreme Court's Grokster decision. But the DMCA's text and legislative history make clear that the safe harbors apply to all forms of alleged copyright infringement, including contributory infringement, of which inducement is a subspecies.
But even if they were not covered by the DMCA plaintiffs' inducement claims still could not stand. There is no genuine issue as to any material fact bearing on plaintiffs' Grokster theory. The evidence establishes beyond any reasonable dispute that YouTube is not—and never has been—a pirate site and has never encouraged its users to infringe copyrights. To the contrary, YouTube has taken an array of
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important steps to deter misuse of its system and help copyright owners find and
remove any unauthorized material from the site.
A. As A DMCA-Compliant Service Provider, YouTube Is Protected Against Damages For All Forms Of Alleged Infringement.
As an initial matter, a finding that YouTube is protected by the Section 512(c) safe harbor would preclude damages liability for any of plaintiffs' infringement theories—including inducement. The plain language of the statute bars monetary liability "for infringement of copyright" without limitation. And even if there were any ambiguity, the DMCA's legislative history clearly states that the safe-harbor applies to "direct, vicarious and contributory infringement." H.R. Rep. 105-551 (Part 2), at 50 (emphasis added). Inducement is a form of contributory liability, as Grokster made clear. See 545 U.S. at 930 ("One infringes contributorily by intentionally inducing or encouraging direct infringement."); see also KBL Corp. v. Arnouts, 646 F. Supp. 2d 335, 346 (S.D.N.Y. 2009).
Even beyond the clear text and legislative history, it would make little sense to find that a DMCA-compliant service provider is simultaneously an inducer. It is hard to imagine how a service that meets Section 512(c)'s prerequisites— expeditiously taking down material that it knows is infringing or that a copyright holder asks to be removed; terminating repeat offenders; and lacking practical control over or financial benefit from the infringing activity—could simultaneously be a service that operates with "stated or indicated intent to promote infringing uses." Grokster, 545 U.S. at 931. Simply put, a service that complies with the safe harbors is not intentionally acting to encourage infringement and thus is not an
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inducer. A rinding that YouTube qualifies for DMCA protection thus shields
YouTube against all of plaintiffs' claims, including their Grokster theory.
B. Even Without Regard To The DMCA, Plaintiffs' Inducement Claims Fail As A Matter Of Law.
Even if there were no safe harbors, however, YouTube still could not be held
liable for inducement. As a matter of law, plaintiffs cannot meet the stringent
standard required by the Supreme Court's decision in Grokster.
1. Grokster Requires A Showing That The Service Provider
Specifically Intended To Encourage Third-Party Infringements.
Grokster held that "one who distributes a device with the object of promoting
its use to infringe copyright, as shown by a clear expression or other affirmative
steps taken to foster infringement, is liable for the resulting acts of infringement by
third parties." 545 U.S. at 936-37. To prove copyright inducement, a plaintiff must
demonstrate that the defendant acted with specific intent to cause others to engage
in copyright infringement:
[M]ere knowledge of infringing potential or of actual infringing users would not be enough here to subject a distributor to liability. * * * The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful purpose.
Id. at 937. "If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was. Id. at 941.
The facts of Grokster illustrate the strict standard. Defendants Grokster and StreamCast distributed over 100 million copies of file-sharing software programs
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that they conceded were used almost exclusively to illegally exchange copyrighted files and that they specifically intended to be used for that unlawful purpose. "[F]rom the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement." Id. at 923-24. Neither company ever tried to "impede the sharing of copyrighted files" and Grokster never "blocked[ed] anyone from continuing to use its software" for unlawful purposes. Id. at 926. Moreover, both of the defendants "broadcast\\ a message designed to stimulate others to commit [copyright] violations." Id. at 938. They started distributing their software after a group of music companies sued the file-sharing network Napster for facilitating copyright infringement on a massive scale, and they deliberately targeted Napster's users and hoped to take Napster's place in the event that a court shut it down. Id. at 924-26.
In concluding that the defendants "acted with a purpose to cause copyright violations," the Court noted three features of the record. Id. at 938. The most salient was both companies' attempt to advertise to and solicit users from Napster—"a known source of demand for copyright infringement." Id. at 938-39. Moreover, the record revealed that 90% of the content exchanged on Grokster and 97% on Streamcast was either infringing or very likely to be infringing. Grokster, 545 U.S. at 922; MGM Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966, 985 (CD. Cal. 2006) ('Grokster IF). The "staggering scale of infringement makes it more
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likely that StreamCast condoned illegal use, and provides the backdrop against which all of Stream Cast's actions must be assessed." Id.
Two other features gave this evidence of solicitation and overwhelming infringement added significance: (1) "neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software"; and (2) "the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing." Grokster, 545 U.S. at 939-40. The Court made clear, however, that neither of these secondary facts standing alone would have been sufficient to find inducement. Id. at 939 n.12, 940.
Since Grokster, a handful of other courts have encountered defendants whose actions—and whose services—were similar to those of Grokster and StreamCast. For example, in Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009), another company that positioned itself as a descendant of Napster was held liable for inducement. In so holding, the court emphasized that over 94% of content files in Usenet.com's music-related newsgroups were found to be infringing or highly likely to be infringing. Id. at 152. Usenet.com "openly and affirmatively sought to attract former users of other notorious file-sharing services such as Napster and Kazaa" and actively promoted that, "unlike other lower security' file-sharing programs like Napster and Kazaa, users could conduct infringing activities anonymously." Id. at 152-53. In addition, Usenet.com employees "provided technical assistance to users in obtaining copyrighted content,"
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including "website tutorials on how to download content, using infringing works as examples." Id. at 153.
Similarly, in Columbia Pictures Industries, Inc. v. Fung, No. 06-CV-5578 (SVW), 2009 U.S. Dist. LEXIS 122661, at *4 (CD. Cal. Dec. 21, 2009), the court found yet another file-sharing network (Tsohunt), this one with a "torrent structure" that the Court found to be "an evolutionary modification" of Napster and Grokster, to be an inducer. As in the cases discussed above, the evidence in Fung showed that "90%-95% of the material [available for downloading on the site] was likely to be copyright infringing, a percentage that is nearly identical to the facts in Napster." Id. at *66. Isohunt's founder had made public statements defending the site's facilitation of copyright infringement and personally provided technical assistance to users in order to help them infringe. Id. at *19-22. And like Grokster, StreamCast, and Usenet.com, Isohunt conveyed a clear message to its users that promoted infringement. For instance, the site encouraged users "to upload dot-torrent files of the latest blockbuster films and have them posted on the Isohunt website" (id. at *16) and bestowed on users honorary titles based on their level of activity, such as "I pir4te, therefore I am." Id. at *42-43.
In contrast, consistent with the Supreme Court's admonition (Grokster, 545 U.S. at 937), courts have rejected inducement claims against services that were not designed intentionally to encourage copyright infringement, even if the services could be used for infringing purposes. See, e.g., Perfect 10, Inc. v. Visa Int'l Serv. Ass'n., 494 F.3d 788, 801 (9th Cir. 2007) (dismissing inducement claim against
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credit-card company whose operations were unlike "[t]he software systems in Napster and Grokster [which] were engineered, disseminated, and promoted explicitly for the purpose of facilitating piracy of copyrighted music."); Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 889 (N.D. HI. 2005) (granting summary judgment on inducement claim where defendant's advertisements did not "specifically target|] an audience that was seeking to download copyrighted material," defendant had taken steps to prevent infringing use of its product, and it was not in defendant's business interest to have its software used for infringement). 2. YouTube Is Not An Inducer of Infringement. Plaintiffs' inducement claims require them to prove that YouTube acted with a "patently illegal object": to intentionally promote the use of its service to infringe copyright, which they must show "by clear expression or other affirmative steps taken to foster infringement." Grokster, 545 U.S. at 936-37, 941. There is nothing like that in this case. YouTube was conceived and continues to operate with the lawful objective of allowing users to post videos that they have created or are otherwise authorized to share. That has long been the message that YouTube conveyed to its users and, for the most part, is what users do. As to user-uploaded materials that might violate YouTube's copyright rules, YouTube not only responds promptly to takedown requests that it receives from copyright holders, but has also gone beyond all legal requirements to develop and implement a variety of sophisticated tools to help rights holders locate and remove unauthorized videos. Simply put, YouTube is nothing like any service that has ever been found to be an
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inducer, and the undisputed facts provide no basis on which to find that YouTube actively encouraged its users to infringe plaintiffs' copyrights.
a. YouTube never encouraged third parties to infringe.
"The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations." Grokster, 545 U.S. at 937. In Grokster, the Supreme Court pointed to direct evidence that the defendants engaged in the essence of inducement: actively and deliberately encouraging users to commit acts of copyright infringement. Id. at 937-38. Indeed, the whole purpose of Grokster and Streamcast was to distribute software that served the same purpose as software made by Napster, a massive secondary copyright infringer. Both companies set out deliberately to capture Napster's user base through advertising and other overt acts, and did just that. Grokster, 545 U.S. at 923-26; Grokster II, 454 F. Supp. 2d at 975-78, 985.
This case is worlds away from the paradigm described in Grokster. There is no evidence here of any YouTube "advertisement or solicitation" aimed at stimulating copyright violations. And YouTube was in no way intended or designed to lure users of any "pirate" service or to encourage any of its own users to infringe. Hurley Decl. H 11, 16-22, 24-25. To the contrary, YouTube's objective from its earliest days was to provide a platform giving users a convenient way to share personal videos and to build a community around users posting and viewing such videos. Id. If 2. In an internal email from April 2005, for instance, Hurley explained his hope "that our site would become the hub of short, personal videos." Schapiro Ex. 160; see also, e.g., id. Ex. 161 (June 2005 Hurley email: "I think the
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key to our success is personal videos."). YouTube's very name reflects that goal by emphasizing "you," i.e., your own, original videos. Hurley Decl. If 7; see also, e.g., Schapiro Ex. 162 ("The videos you upload should be about you (hence, YouTube!")).
The company's slogan, "Broadcast Yourself," which the founders adopted before the site even launched, reinforces that message. Hurley Decl. If 7. The founders wanted that slogan "to be central to the site, and to the design" so that users "will understand what the site is supposed to be when they visit." Id. Ex. 8. As Steve Chen put the point in an internal email from April 2005: "The broadcast yourself is such a succin[c]t and exact slogan for what we want." Id.; see also Botha Decl. 1 6 & Ex. 1 (describing YouTube's business plan in soliciting venture-capital investment: "the founders did not merely say that user-generated content was their focus, they offered that focus as the rationale for [investors] to expect the company to grow, and as a means of differentiating YouTube from other online video services in existence at the time.").
Thus, while Grokster and Streamcast deliberately tried to capture a user-base that they knew had engaged in massive copyright infringement, YouTube sought to build a new community around the idea of sharing personal or user-created videos. Hurley Decl. If 2. In keeping with that objective, YouTube's consistent message to the public and to its users has been that users should post only videos that they had created themselves or otherwise had the rights to post. Id. If 20; Levine Decl. H 5-10. By way of example, at the time of YouTube's launch in 2005:
86
• YouTube's founders publicized their new website to the blog "Video Link": "A site called YouTube' has just launched. It allows members to post and share personal videos they've made. The site aims to become a community of digital video authors and their videos." Schapiro Ex. 163.
• YouTube told the online technical publication The Register: "We just launched a new website, www.YouTube.com, based on the idea of video blogging where members would take clips ranging from the mundane to the fascinating. Our hope is that a community would be built around 'channels' such as 'Sports', 'Kids', 'Vacations', 'Cars', etc." Id. Ex. 164.
• YouTube ran the following advertisement on the website "Craigslist": "YouTube.com is a web-based community based around creative and fun videos. We are seeking folks who possess a dash of technical know-how and a truckload of flare." Id. Ex. 165.
These advertisements are the polar opposites of solicitations to infringe: they
are invitations to share and discover personal videos. Hurley Decl. 1 9. Indeed,
after seeing one of the site's early ads, a woman discovered YouTube and reported:
My son-in-law is serving in Iraq right now, but his server won't let him open videos through email. My daughter has been burning DVDs of their new baby to send to him, but I wanted to find a faster way to get him in touch with his son, so I started googling for 'video blogs' and 'free video blogs' etc. Your site was listed to the right as a sponsored link. We've only just started today, so the jury is still out on whether he can open the website from there or not—still, your site is an incredible and a wonderful public service. It's easy to use too.
Schapiro Ex. 166.
YouTube continues to tell its users strongly and clearly that infringement is unlawful and therefore that users should post authorized videos. Levine Decl. TfTf 510. YouTube includes statements to that effect in its Terms of Service, in multiple bold and prominent warnings during the video-upload process, and on various pages throughout its website. Id. Iffl 6-10. In addition, YouTube has long educated users
87
about the basics of copyright law so that they understand the law and thus can
conform their behavior to it. Id. Iflf 9-10.
Sometimes users disregard YouTube's rules and warnings. But, when such
instances are brought to its attention, YouTube takes them seriously and firmly
reminds users that the posting of unauthorized copyrighted material is prohibited.
Id. If 23. Thus, when YouTube removes a video based on a DMCA takedown notice,
it sends this message to the user who posted it:
Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright tips guide.
Id. Such warnings have long been part of YouTube's communications with users suspected of violating YouTube's copyright policies. Id. As early as April 2005, the founders created an email message that would be automatically sent to users whose videos were rejected for violating YouTube's Terms of Service; the email made clear YouTube's "rules" for what types of videos users were allowed to upload, including "No copyrighted material." Hurley Decl. 1 8 & Ex. 9; see also id. 1 11 & Ex. 13.41
Accordingly, in sharp contrast to what the Supreme Court described as the "classic instance of inducement" (Grokster, 545 U.S. at 937), the record here is
41 In YouTube's early days, when it was sufficiently small that one-on-one communications with users seemed practical, YouTube's founders sent similar messages to users who tried to post material forbidden by the service's rules. Hurley Decl. If 17. For instance, in July 2005, Chad Hurley wrote to a user whose video was rejected, explaining that "it was rejected because it was copyrighted material. We are trying to build a community of real user-generated content." Id. If 17 & Ex. 22.
88
strikingly devoid of evidence that YouTube encouraged its users to violate copyright. From the very start, YouTube's communications with the public have not encouraged copyright infringement—they have actively and consistently discouraged it. Hurley H 9, 20; Levine Decl. H 5-8; Botha Decl. 1 16. That alone disposes of plaintiffs' inducement claims.
But even beyond the complete absence of proof that YouTube urged its users to infringe and the undisputed evidence to the contrary, none of the secondary indicia of unlawful intent that were present in Grokster exist here.
b. YouTube is filled with non-infringing materials.
In Grokster, the defendants' intent to encourage copyright infringement was also inferred from evidence of how the networks were actually used. The undisputed evidence in Grokster demonstrated that close to 90% of the files offered for distribution on the defendants' networks, and almost 97% of the files requested for downloading, were "infringing or highly likely to be infringing." Grokster II, 454 F. Supp. 2d at 985. The Supreme Court relied heavily on this "staggering" scale of infringement when evaluating the defendants' liability. 545 U.S. at 923.
Plaintiffs cannot make anything close to a comparable showing of overwhelmingly infringing uses. It is undisputed that YouTube hosts an enormous set of videos that no one has claimed (or could legitimately claim) to be infringing. Just by way of example, available for viewing on YouTube are: the President's weekly video addresses; clips of popular television shows and motion pictures uploaded or claimed by the studios that own those works; highlights of the Stanley Cup Playoffs, NBA Finals, and U.S. Open, uploaded by the NHL, NBA, and USTA;
89
videos posted by users of their pets performing tricks; music videos uploaded or claimed by major record labels including Sony Music, EMI, Universal Music, and Warner Music Group; amateur video footage of an amazing confrontation between lions, crocodiles, and buffalo in Kruger National Park that has been viewed nearly 50 million times; holiday greetings home from soldiers stationed around the world to their families back home; videos of astronauts giving a tour of the International Space Station and responding from outer space to questions posed by YouTube users; lectures given by professors from leading universities on subjects ranging from particle physics to Shakespeare; and even a presentation given at the Library of Congress about YouTube's impact on society and culture. Walk Decl. Iffl 6, 7, 12, 17, 18, 20, 21. As even this brief catalogue illustrates, YouTube has succeeded in its objective of building a service that provides an unmatched platform for personal and creative expression from users around the world. Hurley Decl. If 27.
The only evidence in the record here bearing on the alleged scope of infringement on YouTube is that plaintiffs collectively have identified approximately 79,000 video clips in suit. But, even accepting (counterfactually) that those clips were not authorized by plaintiffs, were not fair use, were not subject to competing ownership claims and were all actually infringing, that total would represent less than two hundredths of one percent of the more than 500 million videos uploaded to YouTube. Levine Decl. If 26.42
42 Even plaintiffs' own analyses of YouTube suggest that it consists overwhelmingly of user-generated material and videos appearing pursuant to YouTube's license agreements with its array of content partners. Schapiro Ex. 167 (VIA00316621)
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Another possible proxy for the quantum of potentially unauthorized videos on YouTube is the total number of clips that have been the subject of a DMCA takedown notice (or an equivalent takedown request sent to YouTube by a copyright holder) as compared with the total number of clips that have appeared on the service. That percentage is less than 1%. Levine Decl. If 26.43 And that number, unlike the unabated infringement in Grokster, represents circumstances where YouTube has removed content in compliance with the wishes of copyright owners, further negating any inference that YouTube has been acting to foster infringement.
c. YouTube protects the interests of copyright holders.
Not only is there no evidence that YouTube encouraged its users to infringe, there is overwhelming evidence that YouTube actively discouraged and took multiple steps to prevent infringement.
In Grokster, the Supreme Court noted that the evidence of unlawful intent was given "added significance" by the fact that the defendants did not attempt "to develop filtering tools or other mechanisms to diminish infringing activity." 545 U.S. at 939. That evidence did not form a sufficient basis to find liability, but on the facts of that case it underscored the defendants' "intentional facilitation of their
(Viacom presentation noting that "of YouTube's Top 100 viewed clips, nearly all are user-generated"), Ex. 168 (VIA00857223), Ex. 180 (1 16) ("substantial use of YouTube's websites was and is made by users uploading their own homemade movies").
43 Similarly, the number of YouTube accounts terminated in whole or in part based on allegations of infringement represents less than two-tenths of one percent of the overall number of accounts registered since YouTube was founded in 2005. Levine Decl. 131.
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users' infringement." Id.44 Here, YouTube did not harbor intent to encourage copyright infringement, making any evaluation of its filtering efforts unnecessary. But just as Grokster and Streamcast's failure to develop filtering technologies illuminated their unlawful intent, YouTube's development and use of advanced copyright protection tools shows its good faith in working to discourage and prevent infringement.
First, as described above, YouTube has registered a DMCA agent, responds to takedown requests from copyright holders by expeditiously removing identified content, and terminates the accounts of repeat infringers. The file-sharing networks in Grokster did none of those things. See 545 U.S. at 926-27 (Grokster "never blocked anyone from continuing to use its software to share copyrighted files"). And because those defendants did nothing "to impede the sharing of copyrighted files," the plaintiffs had no remedy for the rampant infringement of their materials short of a judicial one. Id. at 926. Here, in contrast, plaintiffs have availed themselves of the rapid-response provisions of the DMCA and cannot seriously contend that YouTube failed to remove allegedly infringing videos when asked. See Section I.C.4, supra.
44 The Supreme Court made clear that "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor." Grokster, 545 U.S. at 936 n.12. That is especially true here given that YouTube, unlike Grokster and Streamcast, is a service that operates under the DMCA, which says expressly that safe-harbor protection cannot be conditioned on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity." 17 U.S.C. § 512(m).
92
Second, YouTube has long taken many other steps to discourage infringement. YouTube's Terms of Service, to which all users must agree before uploading videos, expressly prohibit copyright infringement and require users to upload only videos as to which they own all necessary rights. Levine Decl. If 6. YouTube also provides copyright-education materials on its website to guide users in responsible use of the service, warns users about copyright transgressions with email messages, and when content is removed based on copyright allegations, prominently displays a message noting that fact at the location where the removed video once resided. Id. If If 9-11, 23-24. In addition, YouTube uses streaming technology, which is designed to allow only viewing of videos—not downloads. Solomon Decl. 1 10. In contrast, Grokster-type services offer files, generally full-length songs or movies, for download by users. See Grokster, 545 U.S. at 923. YouTube also instituted a 10-minute limit for most videos uploaded to the service to prevent the uploading of entire television shows or movies. Levine Decl. If 12.
Third, while not required to do so by the DMCA or by the common law, YouTube has made various technological tools available to help copyright owners prevent infringement. In early 2006, YouTube implemented hashing technology, which blocks videos from being uploaded that are exact duplicates of a file previously removed based on a copyright claim. Levine Decl. If 25. YouTube also worked to simplify the DMCA notice-and-takedown process for copyright holders by allowing them to send takedown notices with the click of a button. Id. If 18; see also id. If 17 (discussing YouTube's online form guiding content owners step-by-step
93
through process of sending DMCA takedown notices). In early 2007, YouTube began using audio-fingerprinting technology from Audible Magic. King Decl. 1 4.
Beyond all that, YouTube has built and implemented cutting-edge video fingerprinting technology, which scans every single video uploaded to YouTube against a vast library of reference files provided by participating copyright holders. Id. H 3, 21-28. YouTube devoted over 50,000 man-hours and spent millions of dollars developing this sophisticated copyright-protection tool. Id. H 11, 13-17. YouTube's technology gives copyright holders yet another way to identify their content on YouTube and choose whether—and on what terms—it should stay or go. Id. H 23-25. YouTube has also built its own audio-based fingerprinting technology, which became available in early 2008. Id. 1 20.
This technology was truly industry leading: YouTube was the first (and to our knowledge the only) website dedicated to user-submitted video that built its own video fingerprinting system. Id. 1 19; Schapiro Ex. 169 (287:16-288:4) (former Paramount CTO describing YouTube's technology as the first video fingerprinting tool that "had a significant deployment"), Ex. 170 (202:23-203:3). YouTube makes its technology available for free to content owners and has worked hard to encourage as many of them as possible to use it. King Decl. H 3, 22. These efforts have been successful: since Content ID launched in October 2007, over 1,000 copyright holders worldwide—including most major television networks, movie studios, and record labels, as well as most major sports leagues in the United States and abroad—have started using it to find and manage their content on YouTube.
94
King Decl. 1 21.45 YouTube's commitment to developing and deploying these advanced copyright protections represents the antithesis of inducement.
While plaintiffs will undoubtedly try to second-guess each and every decision that YouTube made related to copyright—claiming that YouTube should have done more at every step and that internal debates about copyright policies and real-time discussions about how those policies should be applied somehow show an intent to encourage user infringement—the undisputed facts show that YouTube took numerous steps to prevent copyright infringement throughout its history. In the site's first months, YouTube's twenty-something founders grappled with how best to address situations where it seemed that users had uploaded videos in violation of YouTube's rules. Hurley Decl. H 15-18. Working out of Hurley's garage, and lacking legal training or counsel, the founders first installed an ad hoc monitoring program under which they removed videos they came across that they thought might be unauthorized. Id. If 17. For a short period of time in the fall of 2005, the founders tried to rely on a "community flagging" system, whereby users could flag videos as being "copyrighted" for YouTube to review and remove based on guesses about what was unauthorized. Id. If 20. Quickly realizing that those approaches were flawed, and having secured financial backing from investors, YouTube consulted with outside counsel, installed a formal DMCA program, and brought in an in-house lawyer with a background in copyright law. Id. If 21; Levine Decl. H 345 Viacom itself is one of those users; after participating in the pre-launch testing of Video ID in mid-2007, Viacom signed up to use YouTube's technology in February 2008. King Decl. 1 29; see Schapiro Ex. 171.
95
4, 13. As the site continued to grow, YouTube rolled out an increasingly sophisticated series of technological tools to help copyright holders prevent unauthorized materials from appearing on the service. Id. If If 17-19. In short, while YouTube deployed numerous measures to combat infringement, Grokster did nothing. The contrast could not be greater.
d. YouTube's revenue model is legitimate. In Grokster, the Supreme Court inferred from the defendants' revenue model
further evidence of their unlawful purpose to "cause and profit from third-party acts of copyright infringement." 545 U.S. at 941. Grokster and Streamcast gave away their software for free and then sought to earn advertising revenue through its subsequent high-volume use. Given the overwhelming evidence that the software was used almost entirely to infringe, the viability of the defendants' business model depended almost entirely on piracy. See id. at 939-40. (The Court was careful to point out that the evidence about the defendants' revenue model "alone would not justify an inference of unlawful intent." Id. at 940.)
Particularly given that YouTube is not remotely akin to Grokster and Streamcast in terms of how its service is actually used, YouTube's business model provides no comparable basis for an inference of "illegal objective." Id. at 941. YouTube relies on the dominant revenue model for today's Internet: free public access supported by advertising. The mainstays of the Internet economy—sites such as Google, Facebook, MySpace, Twitter, Yahoo—and Internet sites for traditional media like The New York Times and CNN—all use this model. Reider Decl. Tf 12. So do Viacom's own video-sharing services. Schapiro Ex. 172 (22:10-24).
96
Nothing about such a website's development of a neutral, advertising-based revenue model in any way suggests a desire to encourage or profit from infringement. The only inference to draw from the fact of YouTube's reliance on advertising is its alignment with virtually every other company in its industry.
That is confirmed by YouTube's roster of advertisers. YouTube's advertising offerings have been embraced by many of the world's largest and best-known companies. Most of the nation's top 100 advertisers have purchased advertising on YouTube, including Procter & Gamble, General Electric, PepsiCo, American Express, Bank of America, Kraft Foods, and Sears. Reider Deci. 1 2. Large media companies and other prominent copyright owners (Time Warner, Walt Disney, News Corp., Lions Gate Entertainment, and the NBA, among many others) also routinely run ads on YouTube (and have done so for years). Id.; Schapiro Ex. 173 (July 2006 Viacom document discussing advertising on YouTube by Disney and Weinstein Company). Viacom itself has advertised on YouTube; between 2006 and 2008, Viacom spent well over a million dollars purchasing advertising space on the YouTube website, including on the YouTube homepage and search-results pages. Reider Deci. 1 4.
e. Plaintiffs' own actions demonstrate YouTube's legitimacy. Plaintiffs' own actions confirm YouTube's legitimacy. As described above, plaintiffs' use of YouTube for marketing, promotional, and other business purposes is extensive and widespread. Viacom's marketing personnel raved about the successful promotions they were able to achieve using YouTube (see Schapiro Ex. 25 (43:17-22), Ex. 26) and Viacom adopted elaborate policies to ensure that an array of
97
Viacom-related videos would be posted to and remain up on YouTube. See supra I.C.3.b.ii-iii. Beyond taking advantage of the free promotional benefits that YouTube offered, Viacom has bought advertising space on YouTube for Viacom programming. Reider Decl. Tf 4. And Viacom's executives and employees regularly use YouTube—posting, watching, and sharing personal videos, just like millions of other YouTube users around the world. See n.28, supra; see also Schapiro Ex. 174. On top of all that, Viacom sought to buy YouTube, which Viacom saw as a "transformative acquisition." Id. Ex. 175.
The putative class plaintiffs' actions similarly underscore that YouTube is far from a pirate site. As noted, class plaintiffs have consistently authorized their content to appear on YouTube (Section I.C.3.b.(iv), supra), and the record is replete with statements of enthusiasm for the unique creative platform that YouTube offers. See n.28, supra. As one of the class plaintiffs' designated representatives candidly acknowledged in deposition: "YouTube is a great site. *** [TJt shows interesting clips. *** I don't have a problem with YouTube. [EJveryone loves YouTube, don't they?" Schapiro Ex. 85 (248:24-249:24); see also id. Ex. 176 (267:418), Ex. 177 (authenticating article quoting Tur as saying that he "understands why people love YouTube, a democratic clearinghouse for everything from family reunions to detainee abuse, and knows that most videos are actually owned by their posters").
Assertive copyright holders like these plaintiffs simply would not interact in any of these ways—much less all of them—with a service principally dedicated to
98
purposeful, culpable theft of intellectual property. The undisputed evidence about
what YouTube is and how plaintiffs use it leaves no room for a finding that
YouTube intended to induce its users to infringe plaintiffs' copyrights.
* * *
Grokster warns courts evaluating inducement claims against "trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential." 545 U.S. at 937. It is difficult to imagine a more apt illustration of that danger than this case. Allowing plaintiffs' inducement claims to proceed to trial would not only run afoul of the stringent standards articulated in Grokster, but would disrupt the careful balance between technological development and copyright protection that animates those standards.
99
CONCLUSION
For the reasons above, YouTube is entitled to summary judgment (l) that it
qualifies for protection under Section 512(c) of the DMCA against all of plaintiffs'
direct and secondary infringement claims; and (2) on plaintiffs' claims for
contributory liability under the theory of inducement.
Dated: March 11, 2010 New York, NY
Respectfully submitted,
Si
Ka)
Andrew H. Schapiro I
A. John P. Mancini i
Matthew D. Ingber Brian M. Willen Mayer Brown LLP 1675 Broadway New York, New York 10019 (212) 506-2500
David H. Kramer Maura L. Rees Michael H. Rubin Bart E. Volkmer
Wilson Sonsini Goodrich & Rosati PC
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
Attorneys for Defendants
100

Viacom Youtube/Google UNDISPUTED Facts

2010-03-21T02:20:00.001-07:00

Source http://www.nypost.com
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
VIACOM INTERNATIONAL INC.,
COMEDY PARTNERS,
COUNTRY MUSIC TELEVISION, INC.,
PARAMOUNT PICTURES CORPORATION,
and BLACK ENTERTAINMENT TELEVISION
LLC,
YOUTUBE INC., YOUTUBE, LLC, and GOOGLE, INC.,
MEMORANDUM OF LAW IN SUPPORT OF VIACOM'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY AND INAPPLICABILITY OF THE DIGITAL MILLENNIUM COPYRIGHT ACT SAFE HARBOR DEFENSE
Plaintiffs,
Case No. l:07-cv-02103 (LLS) (Related Case No. l:07-cv-03582 (LLS)
v.
Defendants.
Stuart J. Baskin (No. SB-9936) John Gueli (No. JG-8427) Kirsten Nelson Cunha (No. KN-0283) SHEARMAN & STERLING LLP
Paul M. Smith (No. PS-2362) William M. Hohengarten (No. WH-5233) Scott B. Wilkens (pro hac vice) Matthew S. Hellman (pro hac vice)
599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179
JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066
Susan J. Kohlmann (No. SK-1855)
JENNER & BLOCK LLP 919 Third Avenue
New York, NY 10022
Telephone: (212)891-1690 Facsimile: (212)891-1699
Attorneys for Plaintiffs
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES......................................................................................................Hi
PRELIMINARY STATEMENT..................................................................................................1
SUMMARY JUDGMENT STANDARD....................................................................................4
ARGUMENT.................................................................................................................................5
I. DEFENDANTS ARE LIABLE UNDER GROKSTER BECAUSE THEY INTENTIONALLY OPERATED YOUTUBE AS A HAVEN FOR MASSIVE INFRINGEMENT...................................................................................................................5
A. Statement of Undisputed Facts Relevant to Point 1.......................................................5
1. The Founders' Knowledge and Intent Concerning Infringement..........................5
2. Google's Knowledge and Intent Concerning Infringement..................................12
3. Defendants Cannot Walk Away from Their Contemporaneous Internal Documents..................................................................................................................21
B. Defendants' Intentional Operation of YouTube as an Infringement Haven
Makes Them Liable Under Grokster.............................................................................24
II. DEFENDANTS ARE VICARIOUSLY LIABLE BECAUSE THEY DERIVED A DIRECT FINANCIAL BENEFIT FROM INFRINGEMENT THAT THEY HAD THE RIGHT AND ABILITY TO CONTROL............................................................................30
A. Statement of Undisputed Facts Relevant to Point II....................................................30
1. Defendants' Direct Financial Benefit from Infringement.....................................30
2. Defendants' Right and Ability to Control Infringement.......................................32
B. Defendants' Financial Interest and Control Makes Them Vicariously Liable.........38
1. Direct Financial Benefit............................................................................................38
2. Right and Ability To Control...................................................................................40
III. DEFENDANTS ARE ALSO LIABLE AS DIRECT INFRINGERS...............................42
A. Statement of Facts Relevant to Point III.......................................................................42
B. Defendants' Own Conduct Constitutes Direct Infringement......................................45
IV. DEFENDANTS DO NOT QUALIFY FOR THE DMCA DEFENSE..............................47
A. Defendants' Knowledge and Intent Defeat the DMCA Defense.................................50
B. Defendants' Direct Financial Benefit and Right and Ability to Control Infringement Defeat the DMCA Defense......................................................................56
C. The Infringement on YouTube Does Not Result from the Specified Core
Internet Functions to Which The DMCA Applies.......................................................61
CONCLUSION............................................................................................................................67
ii
TABLE OF AUTHORITIES
Cases
A&MRecords, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)....................38, 39, 40, 41, 58
In reAimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003)..........................................50, 51
ALSScan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001)...............................49
Arista Records, Inc. v. Mp3Board, Inc., No. 00 CIV. 4660 (SHS),
2002 WL 1997918 (S.D.N.Y. Aug. 29, 2002)........................................................................38
Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y.
2009)......................................................................................................................26, 38, 45, 50
Associated General Contractors of California, Inc. v. California Council
of Carpenters, 459 U.S. 519 (1983)........................................................................................62
Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad Co.,
331 U.S. 519(1947)................................................................................................................59
Buck v. Jewell-La Salle Realty Co., 283 U.S. 191 (1931).............................................................37
Capital Records, Inc. v. Mp3Tunes, LLC, No. 07 Civ. 9931(WHP), 2009
WL 3364036 (S.D.N.Y. Oct. 16, 2009)..................................................................................45
Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008),
cert, denied, 129 S. Ct. 2890 (2009)...........................................................................44, 45, 46
Columbia Pictures Industries, Inc. v. Fung, No. CV 06-5578
(CD. Cai. Dec. 21, 2009)........................................................25, 26, 47, 48, 50, 52, 55, 57, 62
Costar Group, Inc. v Loopnet, Inc., 164 F. Supp. 2d 688 (D. Md. 2001),
aff'd, 373 F.3d 544 (4th Cir. 2004).........................................................................................55
Crawford v. Metropolitan Government of Nashville and Davidson County,
129 S. Ct. 846 (2009)..............................................................................................................61
Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003)..........................................................................63
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)....................................................................38
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008).................................................................................................49
Fonovisa Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).............................................38
iii
Frank G. v. Board of Education of Hyde Park, 459 F.3d 356
(2d Cir. 2006)..........................................................................................................................59
Giordano v. United States, 32 F. Supp. 2d 640 (S.D.N.Y. 1999).................................................51
Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992).........................................62
Io Group, Inc. v. Veoh, Networks, Inc., 586 F. Supp. 2d 1132
(N.D. Cal. 2008)................................................................................................................56, 64
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154
(9th Cir. 2004), rev'd, 545 U.S. 913 (2005)............................................................................24
Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913
(2005)........................................................................................1, 24, 25, 26, 28, 29, 41, 52, 60
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966
(CD. Cal. 2006)................................................................................................................26, 28
Neder v. United States, 527 U.S. 1 (1999)..............................................................................55, 56
Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195
(N.D. Cal. 2004)......................................................................................................................49
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).....................................28, 39
Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102 (9th Cir. 2007).................................52, 55, 56, 64
Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146
(CD. Cal. 2002)................................................................................................................39, 51
Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F. Supp. 543
(N.D. Tex. 1997), aff'd, 168 F.3d 486 (5th Cir. 1999)............................................................45
Religious Technology Center v. Netcom On-Line Communication Services,
Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).........................................................................45, 47
Reed Elsevier, Inc. v. Muchnick, No. 08-103, 2010 WL 693679
(U.S. Mar. 2, 2010).................................................................................................................28
Shapiro, Bernstein & Co. v. HL. Green Co., 316 F.2d 304 (2d Cir. 1963).....................37, 41, 55
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417
(1984)......................................................................................................................................23
Tur v. YouTube, Inc., No. CV064436, 2007 WL 1893635
(CD. Cal. June 20, 2007)..................................................................................................48, 57
IV
U.S. West Communications., Inc. v. Hamilton, 224 F.3d 1049
(9th Cir. 2000)....................................................................................................................58-59
UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081
(CD. Cal. 2008)......................................................................................................................64
UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099
(CD. Cal. 2009)..........................................................................................................52, 57, 58
United States v. ASCAP (In re Application ofYouTube, LLC), 616
F. Supp. 2d 447 (S.D.N.Y. 2009)............................................................................................39
United States ex rei. Romano v. NY. Presbyterian, 426 F. Supp. 2d 174
(S.D.N.Y. 2006) .......................................................................................................................5
Wattv. Alaska, 451 U.S. 259(1981).............................................................................................58
Statutes
17 U.S.C. § 106.............................................................................................................................44
17 U.S.C. § 512(a)...........................................................................................................................4
17 U.S.C. § 512(b)........................................................................................................................61
17 U.S.C. § 512(c)...............................................................................................................4, 48, 62
17 U.S.C. § 512(c)(1)(A).................................................................4, 47-48, 49, 51, 53, 54, 55, 62
17 U.S.C. § 512(c)(1)(B).............................................................................4, 48, 55, 56, 59, 60, 62
17 U.S.C. § 512(c)(1)(C)...................................................................................................48, 54, 57
17 U.S.C. § 512(d)....................................................................................................................4, 62
17 U.S.C. § 512(k)(l)(A)..............................................................................................................60
17 U.S.C. § 512(m)...........................................................................................................58,59, 60
17 U.S.C. § 512(n)........................................................................................................................62
Fed. R. Civ. P. 56(c)........................................................................................................................4
Legislative Materials
H.R. Rep. No. 105-551(I)(1998)......................................................................................47, 58,61
H.R. Rep. No. 105-551(11) (1998).............................................................48, 51, 53, 55, 59, 60, 61
v
S. Rep. No. 105-190 (1998)........................................................................................48, 51, 55, 62
Other Authorities
Jane C. Ginsburg, Separating the Sony Sheep from the Grokster Goats,
50 Ariz. L. Rev. 577 (2008)........................................................................................52, 53, 61
II Paul Goldstein, Goldstein on Copyright (3d ed. 2009).............................................................52
3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2009).....................................59
The New Oxford American Dictionary (2d ed. 2005) ..................................................................61
Webster's Third New International Dictionary (1986).................................................................61
VI
PRELIMINARY STATEMENT
Plaintiffs Viacom International Inc. et al. ("Viacom") move for partial summary judgment on Defendants' liability for copyright infringement and concurrently to invalidate Defendants' reliance on the Digital Millennium Copyright Act ("DMCA") as a defense to that infringement. The starting point for this motion is this undisputable fact: tens of thousands of videos on YouTube, resulting in hundreds of millions of views, were taken unlawfully from Viacom's copyrighted works without authorization. Statement of Undisputed Facts ("SUF") fflf 6-9. Fostering and countenancing this piracy were central to YouTube's economic business model. The fundamental issue is whether Defendants are liable for that intentional infringement of copyrights or whether, alternatively, they may hide behind a policy of willful blindness and seek to shift responsibility to clean up their site to victimized content owners like Viacom. Under both common and statutory law, the answer is clear: Defendants are liable for the rampant infringement they have fostered and profited from on YouTube. Once summary judgment is entered, trial will be dramatically shortened, focusing on assessing damages arising from Defendants' policies of hosting and benefiting from massive copyright infringement.
First, Defendants are liable under Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005), because they operated YouTube with the unlawful objective of profiting from (to use their phrase) "truckloads" of infringing videos that flooded the site. YouTube's founders single-mindedly focused on geometrically increasing the number of YouTube users to maximize its commercial value. They recognized they could achieve that goal only if they cast a blind eye to and did not block the huge number of unauthorized copyrighted works posted on the site. The founders' deliberate decision to build a business based on piracy enabled them to sell their start-up business to Google after 16 months for $1.8 billion. The Supreme Court in Grokster found no legal or societal justification for such intentional copyright infringement.
Prior to the acquisition, Google itself had tried to compete with YouTube by complying with the law, without permitting infringement on Google's own Google Video site. Google executives well recognized that YouTube was a "pirate site," a "rogue enabler of content theft" and a "video Grokster" whose "business model is completely sustained by pirated content." But after buying its former rival, Google abandoned its scruples in order to continue growing the YouTube user base until well into 2008. It abandoned its own anti-piracy practices and instead embraced YouTube's illegal business model. As acquiror, Google assumed liability for YouTube's pre-acquisition infringement. And once its acquisition was consummated, Google readily embraced and perpetuated YouTube's piracy and willful blindness.
It did not have to be this way. Defendants had at their disposal readily available and inexpensive techniques, including fingerprinting and filtering technologies, to block the uploading of pirated works and clean up the site. They instead made a deliberate business decision not to broadly deploy these techniques and instead to hold content owners hostage to Defendants' efforts to commercialize the site. More specifically, at the beginning of 2007, Google and YouTube began to use digital fingerprinting to screen out infringing works for copyright owners who agreed to a content license agreement with them. But for other copyright owners - including Viacom - they engaged in a form of high-tech extortion: refusing, until May 2008, to apply that same technology to protect Viacom unless it first agreed to license its intellectual property to YouTube.1 Defendants' intentional conduct and business decisions render them liable for the resulting infringement under Grokster.
1 Because of this change in May 2008, this motion seeks summary judgment only for the period prior to May 2008. While Google and YouTube may still be liable for the more limited infringement that continued after fingerprinting was used to limit piracy of Viacom's works, we do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial.
2
Second, Google and YouTube are liable under long-standing principles of vicarious copyright liability because they had a direct financial interest in the infringement on YouTube and the right and ability to control it. Defendants' financial interest in infringing clips that attracted viewers and thereby advertising revenue is direct and obvious. So is the $1.8 billion YouTube's founders and early investors walked away with through this strategy. And Defendants had readily available ways to control the infringement on YouTube. Indeed, they were deploying these very techniques for other companies, and said they would do so for Viacom - but only if Viacom gave them a license for popular Viacom programs. Defendants' refusal to control the infringement from which they profited makes them vicariously liable.
Third, Google and YouTube are liable for their own directly infringing conduct. Defendants have tried to portray themselves as passive and innocent conduits or mere receptacles for infringing clips posted by users. In reality, the majority of infringing acts were volitionally initiated by Defendants themselves, such as the creation and public performance of new infringing copies for additional distribution channels months or years after infringing videos were first uploaded. Indeed, uploading users are compelled to subscribe to terms of service that grant to YouTube a worldwide license to "use, reproduce, distribute, prepare derivative works, display, and perform" uploaded videos. YouTube performs all of these functions, and they constitute acts of direct infringement under the copyright laws.
The principles establishing liability summarized above parallel many of the reasons why Defendants also are not protected by the limited defense created by the DMCA. Defendants contend they qualify for the DMCA safe harbor because they removed specific infringing clips located and listed by Viacom in takedown notices. To them, the DMCA is just a takedown notice statute. Embracing Defendants' position would render most of the statute enacted by
3
Congress a nullity, for responding to takedown notices is only one of numerous preconditions to DMCA immunity. Google and YouTube fail to meet at least three other preconditions.
First, Defendants had "actual knowledge" and were "aware of facts or circumstances from which infringing activity [was] apparent," but failed to do anything about it. 17 U.S.C. § 512(c)(1)(A). Indeed, they fully intended to facilitate that infringement. Such Grokster intent defeats any DMCA defense, which is available only to innocent service providers, not intentional wrongdoers or those who elect to remain willfully blind to pervasive piracy.
Second, Google and YouTube "receive[d] a financial benefit directly attributable to the infringing activity" and had "the right and ability to control such activity." Id. § 512(c)(1)(B). Using statutory language taken from vicarious liability case law, Congress intended this prong of the DMCA to exclude businesses that are liable under that common law vicarious liability standard. Because Defendants are vicariously liable, they cannot take refuge in the DMCA.
Third, Defendants' infringement does not result from providing "storage at the direction of a user," id. § 512(c), or the other specific functions listed in § 512(a)-(d). Defendants engage in directly and secondarily infringing activities that are neither storage nor at the direction of a user. For example, on their own initiative Defendants copy and purport to license infringing videos for distribution over third-party platforms under commercial deals that Defendants - not their users - negotiate. That is not storage, and it is not protected by the DMCA.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted where "there is no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To prevail, the movant must '"demonstrate the absence of a genuine issue of material fact.... The burden is then on the non-moving party to set forth specific facts raising a genuine
4
issue of fact for trial.'" United States ex rel. Romano v. N.Y. Presbyterian, 426 F. Supp. 2d 174, 177 (S.D.N.Y. 2006) (quoting Celotex Corp. v. Catrett, All U.S. 317, 323, 324 (1986)).
ARGUMENT
I. DEFENDANTS ARE LIABLE UNDER GROKSTER BECAUSE THEY
INTENTIONALLY OPERATED YOUTUBE AS A HAVEN FOR MASSIVE INFRINGEMENT.
A. Statement of Undisputed Facts Relevant to Point I2
1. The Founders' Knowledge and Intent Concerning Infringement YouTube was founded in 2005 by Chad Hurley, Steve Chen, and Jawed Karim as a "consumer media company" to "deliver entertaining, authentic and informative videos across the Internet." SUF fflf 10, 13-15. All three founders had worked at the Internet start-up PayPal, whose creators made a fortune when it was sold to eBay for $1.3 billion in 2002. SUF ^ 11-12. That was the founders' plan for YouTube too. They aimed to quickly establish YouTube as the most popular video site on the Internet, and then cash in by selling it. SUF Iflf 30, 36, 49-50 (Karim: "our dirty little secret ... is that we actually just want to sell out quickly"). Because attracting a huge "user base" of fans was essential to this plan, founder Chen urged his associates to "concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil." SUF f 85 (emphasis added); see SUF 136 (Karim: "Where our value comes in is USERS."). Thus, the founders consciously aimed to attract users by emulating notorious pirate services like "napster," "kazaa," and "bittorrent." SUF \ 29. That plan worked. By exploiting copyrighted works without a license, YouTube became the leading Web video site, resulting in enormous wealth for its founders and venture capital investors who, after a mere year and a half, flipped the site to Google for $1.8 billion. SUF ffll 16-27.
2 For the Court's convenience, this Memorandum divides the Statement of Undisputed Facts into subsections relevant to the point under discussion.
5
From the beginning, the founders understood that YouTube was a magnet for unauthorized copyrighted content. As early as April 2005, they emailed each other about users uploading "copyrighted material" - such as Viacom's "South Park" show, which they repeatedly mentioned. SUF ^[31-32. Soon the infringement was so blatant that YouTube's own Internet service provider complained that YouTube was violating its user agreement because, as Chen explained, "we're hosting copyrighted content." SUF f 33. But the founders did nothing in response. Id. (Chen: "i'm not about to take down content because our ISP is giving us shit.").
The fact that YouTube was flooded with obviously infringing media clips was a constant focus throughout the summer of 2005. As the founders' internal emails unambiguously show, they wanted to continue exploiting infringing videos to rapidly expand their user base, while groping for ways "to avoid the copyright bastards" - as they referred to copyright owners whose works were being infringed. SUF Iflf 34-38. Right after the Supreme Court handed down the Grokster decision condemning the intentional operation of an Internet service that fosters infringement, Hurley recognized the obvious parallel to YouTube and emailed the other founders: "we need views, [but] I'm a little concerned with the recent Supreme Court ruling on copyrighted material." SUF *|j 39. Yet, the founders could not bring themselves to reject their reliance on the infringing videos that were critical to fueling the site's explosive growth. Id. ("we need views").
Thus, during the summer of 2005, the founders removed some of the most obvious infringing videos from YouTube to give the impression of copyright compliance; but they deliberately and intentionally chose to leave up other infringing clips when they thought the additional site traffic was worth the legal risk. SUF fflj 43-48. Chen explained: "That way, the perception is that we are concerned about this type of material and we're actively monitoring it.
6
[But the] actual removal of this content will be in varying degrees. That way .. . you can find truckloads of . . . copyrighted content... [if] you [are] actively searching for it." SUF ^[ 60. (emphasis supplied). In particular, the founders decided to keep infringing "comedy clips" - a Viacom specialty. SUF ^ 52. Choosing to pursue their get-rich-quick scheme through piracy, Hurley told the others: "save your meal money for some lawsuits!" SUF 38.
The founders' contempt for copyright was so strong that they uploaded infringing videos themselves. One email noted that founder "Jawed [was] putting stolen videos on the site." SUF 140; see also 141. Chen admonished: "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it." Id. In another case, Chen emailed about a video, saying "steal it!" SUF ]f 44. When Hurley expressed concern about "stealing] the movies," Chen countered: "[W]e need to attract traffic. .. . [T]he only reason why our traffic surged was due to a video of this type." Id.
By September 2005, the founders largely abandoned even the half-hearted attempt to create the illusion of respect for copyrights and adopted a policy that YouTube followed until at least May 2008: they decided to keep substantially all infringing videos on the site as a draw to users, unless and until YouTube received a "takedown notice" from the actual copyright owner identifying a specific infringing clip by URL and demanding its removal from the site, in which case YouTube would remove the specific clip at that URL - but no others.3 This decision is reflected in a key September 3, 2005, email exchange between the three founders, which started
3 YouTube employees only rarely and sporadically removed videos without receiving a takedown notice after adopting this policy in September 2005.
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when Hurley emailed the others re "copyright material!!!": "aaahhh, the site is starting to get out of control with copyrighted material." SUF ^ 54 (emphasis added).
Rather than responding by proposing steps to clean up the site, Chen strongly argued against removing the illegal videos because of the effect on traffic. In fact, the September 3 internal email exchange resulted in the first of several internal YouTube documents that quantified the vast extent and importance of infringement on the site. SUF 1fl[ 54-58. Chen twice wrote that 80% of user traffic depended on pirated videos. SUF f]f 55, 57. He opposed removing infringing videos on the ground that "if you remove the potential copyright infringements . . . site traffic and virality will drop to maybe 20% of what it is." SUF f 55 (emphasis added). Karim proposed they "just remove the obviously copyright infringing stuff." Id. (emphasis added). But Chen again insisted that even if they removed only such obviously infringing clips, site traffic would drop at least 80%. SUF 56 ("if [we] remove all that content[,] we go from 100,000 views a day down to about 20,000 views or maybe even lower").4
Chen's 80% figure closely matched outside estimates of the pervasiveness of infringement on the YouTube site. For example, in April 2006, Peter Chernin, the Chief Executive Officer of News America, parent of the Fox television network and the 20th Century Fox film studio, made a widely reported speech noting that News America conducted a survey and found that "more than 80 percent of video on [YouTube] is copyrighted content." SUF If 145. The report of this survey was broadly circulated within Google Video, eliciting this response from one senior executive: "Holy cow." Id.
To justify keeping the "obviously copyright infringing stuff on the site, the YouTube founders in the fall of 2005 adopted the policy of willful blindness to infringement: they
determined to embrace the avowed pretense that the hundreds of thousands of clips on YouTube that were stolen from popular movies and TV shows were actually owned by the uploading users. In the September 3 email exchange, Chen explained the policy as follows: "[T]he copyright infringement stuff[.] I mean, we can presumably claim that we don't know who owns the rights to that video and by uploading, the user is claiming that they own that video[,] we're protected by DMCA for that. [W]e'll take it down if we get a cease and desist [i.e., a takedown notice]." SUF 57; see also f 53. Using the example of a clip pirated from a CNN show, he outlined how YouTube would benefit from the policy of willful blindness and toleration of infringement: "[I] really don't see what will happen, what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away, he gets in touch with cnn legal. 2 weeks later, we get a cease & desist [takedown] letter, we take the video down." SUF 1J47; see also fflf 120, 128. In the meantime, the infringing video remains on YouTube as a draw to users.
YouTube's policy of willful blindness is highlighted by an abrupt flip flop on community flagging for copyright violations. On September 3, a worried Hurley pushed for YouTube to start "community flagging" for infringing videos - that is, to have users flag uploaded videos as likely violative of copyright laws for follow-up scrutiny by YouTube employees. SUF ^[ 58. This is the method YouTube uses with great success to find and remove pornography from the site. SUF Tffi 67-68, 70, 73. With such a system to identify and remove copyrighted material, Hurley hoped "then we won't be liable" for infringement. SUF f 58. Within five days, Chen had "hooked up" "Flagging for Inappropriate/copyrighted content." SUF fflf 61-62.
This practice lasted all of two weeks. Hurley quickly came to realize that copyright flagging would work all too well, thereby undermining YouTube's willful blindness strategy.
9
On September 23, 2005, Hurley wrote to the other founders that they should discontinue
copyright flagging "asap" to avoid being put on notice of infringement:
can we remove the flagging link for "copyrighted" today. ... [BJasically if we don't remove them we could be held liable for being served a notice, it's actually better if we don't have the link there at all because then the copyright holder is responsible for serving us notice of the material and not the users.
SUF T| 64 (emphasis added). On its face, this constituted a willful decision to blind YouTube to notice of copyright infringement and to shift the entire burden to copyright owners.
This strategy of willful blindness left users free to flood the site with illegal content. In February 2006, Maryrose Dunton, one of YouTube's earliest employees and its lead Product Manager, provided another quantification of the vast extent of piracy on the site. She reported to Chen that she "did a little exercise on Friday and went through all the most viewed/most discussed/top favorites/top rated [videos on YouTube] to try and figure out what percentage is or has copyrighted material, it was over 70%." SUF ^ 95 (emphasis added). Dunton then sarcastically added that she had "flagged" the copyrighted videos for removal - showing she understood they were infringing. Id. When deposed, she confirmed she did not really flag the videos; they remained on YouTube as a draw to users. SUF f 96, see also fflf 78, 88. That a YouTube executive joked with a founder about 70% of the most popular videos on YouTube being infringing and did nothing about it speaks volumes.
And that was no mere slip of the pen. A month later, Dunton told another senior YouTube employee in an instant message that "the truth of the matter is probably 75-80% of our views come from copyrighted material." SUF *| 104. She agreed with the other employee that YouTube has some "good original content" but "it's just such a small percentage." Id.
In the same time period, presumably after a legal presentation, Dunton engaged in an
exchange with another YouTube employee who asked rhetorically: "was it me, or was the
10
lawyer thing today a cover-your-ass thing from the company?" SUF 193. Dunton responded, "oh totally . . . did you hear what they were saying? it was really hardcore ... if we even see copyrighted material on the site, as employees we're supposed to report it." Id. She continued: "I guess the fact that I started like 5 groups based on copyrighted material probably isn't so great." Id. To which the other employee replied: "but it's a cover your ass . . . so the board can say we told maryrose not to do this." Id.
Also during this period, a senior YouTube engineer discussed with Dunton setting up an anti-infringement tool to send automated email alerts to copyright owners when illegal content was uploaded. SUF fflf112-13. The engineer noted that implementing the tool "isn't hard" and would "take another day or w/e [weekend]." SUF If 114. But Dunton explained "I hate making it easier for these a-holes" - referring to copyright owners - and told the engineer to "forget about the email alerts stuff because "we're just trying to cover our asses so we don't get sued." Id.
YouTube even emphasized the popularity of known infringing videos to potential investors. A case in point is "Lazy Sunday," taken from NBC's show "Saturday Night Live," which was an enormous hit on YouTube. SUF ^f 92; see also ^ 84. Even after YouTube received takedown notices from NBC for this video, YouTube highlighted the video's success to potential investors and its own board to show how it was using infringing professional content to draw viewers and to become the most popular video site on the Internet. SUF ff 89-92, 98-99.
11
A true smoking gun is a memorandum personally distributed by founder Karim to
YouTube's entire board of directors at a March 22, 2006 board meeting. SUF ffl! 109-11.5 Its
words are pointed, powerful, and unambiguous. Karim told the YouTube board point-blank:
As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park. MTV Cribs. Daily Show. Reno 911. Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube's popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.
Id. (emphasis added).6 All of the shows underlined above and identified by Karim in this
memorandum to the YouTube board as "blatantly illegal" are Viacom programs. SUF fflf 5-6.
But the board and YouTube did nothing.
Having rapidly expanded YouTube by using infringing video clips in this way, the founders sold the site to Google for $1.8 billion in November 2006, a mere 1-1/2 years after its founding. SUF fflf 16-19. Hurley and Chen walked away with several hundred million dollars each, and Karim, who had left YouTube, received approximately $60 million. SUF fflf 21-23. 2. Google's Knowledge and Intent Concerning Infringement
Senior executives of Google, YouTube's principal competitor, well appreciated the vastness of the piracy on YouTube months before Google acquired it (and then embraced its copyright practices). When it acquired YouTube, Google assumed and became fully liable for the acts of YouTube and its founders for the period 2005-2006. Just as importantly, Google is
5 This is one of the highly inculpatory documents that Defendants never produced in discovery. See infra at 21-23. Fortunately, it was preserved and produced by Karim after he left YouTube.
6 While Karim implied the DMCA protected YouTube's conduct, Defendants have elected not to assert an advice of counsel defense and have accordingly blocked discovery into their actual beliefs about this issue. Moreover, as shown in Point IV below, Karim's own acknowledgement of "copyrighted content" that is "blatantly illegal" in reality defeats any DMCA defense.
12
also liable for its own post-acquisition policies and practices. Google now jointly operates the YouTube website. Answer to Amended Compl. 27. And Google has perpetuated and built upon YouTube's history of infringement, taking advantage of widespread piracy both as a draw for users and to coerce content owners into licensing their content to Google.
Before acquiring YouTube, Google had its own Internet video site, Google Video, which (like YouTube) allowed users to upload videos, but (unlike YouTube) reviewed each video at upload and blocked those that infringed copyrights. SUF fflf 133-36. The person in charge of such screening reported to a senior Google executive: "We catch around 10% of all online user uploaded videos during review. Of these approximately 90% is disapproved due to copyright violation, and the rest due to policy (porn, violence, etc.)." SUF f 137 (emphasis added).
But Google's good intentions and compliance with the law were not paying off. YouTube was way ahead of Google Video in the race to build up a user base. SUF fflf 146, 154. Google executives understood that YouTube's success was largely due to what they euphemistically labeled its "[ljiberal copyright policy" of freely allowing infringing material. SUF ff 140-45, 148, 150-52, 155-57, 159.
Losing the user race to YouTube because of the latter's copyright infringement, Google Video executives engaged in a "heated debate" in 2006 "about whether we should relax enforcement of our copyright policies in an effort to stimulate traffic growth." SUF 158. A top senior executive, Peter Chane, Google Video's Business Product Manager, argued point blank that Google Video should "beat YouTube" by "calling quits on our copyright compliance standards." SUF ^ 149. Chane specifically advocated switching Google Video to YouTube's "reactive DMCA only" policy because "YouTube gets content when it's hot (Lazy Sunday,
13
Stephen Colbert, Lakers wins at the buzzer)" and it "[tjakes us too long to acquire content directly from the [legitimate] rights holder." SUF 1156 (emphasis in original).
Others at Google questioned whether it should follow YouTube's strategy of winning by breaking the law. A memorandum prepared by a top Google executive, and distributed to the most senior executives of Google Video, recorded Google co-founder Sergey Brin as asking whether it was right for Google to "chang[e] policy [t]o increase traffic knowing beforehand that we'll profit from illegal [downloads." SUF 162-63 (emphasis added).7 Another executive listed the "Top 10 reasons why we shouldn't stop screening for copyright violations"; the first was "It crosses the threshold of Don't be Evil to facilitate distribution of other people's intellectual property." SUF f 164.8 In contrast, Google's Chief Executive Eric Schmidt was quoted in support of relaxing Google Video's copyright enforcement policies. SUF ^ 160.
In May 2006, Google held a Google Product Strategy (or "GPS") meeting attended by
top executives, including CEO Schmidt. The GPS focused on Google Video. SUF ^ 147.
Before the meeting, David Eun, a senior Google executive responsible for negotiating license
agreements with content owners, sent an email to Schmidt summarizing the internal "heated
debate whether we should relax enforcement of our copyright policies in an effort to stimulate
traffic growth" to beat YouTube at its own game. SUF ffll 158-59. Eun told Schmidt:
I think we should beat YouTube ... - but not at all costs. A large part of their traffic is from pirated content. When we compare our traffic numbers to theirs, we should acknowledge that we are comparing our "legal traffic" to their mix of
7 At his deposition, Brin claimed not to have made this statement. Hohengarten Decl. ^ 352 & Ex. 318 at 61:17-62:19. Regardless, the statement attributed to him was widely circulated among top Google officials.
8 This language had particular significance at Google, whose informal motto is "Don't Be Evil." SUF 164. Thus, "crossing] the threshold of Don't be Evil" indicated a conscious turning point for the company toward intentional wrongful conduct.
14
traffic from legal and illegal content. One senior media executive told me they are monitoring YouTube very closely and referred to them as a "video Grokster."
Id. (emphasis added).9
Likewise, Google Video executives vividly described YouTube's illegal practices to the GPS meeting's attendees. In a memorandum marked "final" for integration into the material prepared for the GPS, the Google Video team advised senior Google executives:
• YouTube is "a 'rogue enabler' of content theft"
• "YouTube's content is all free, and much of it is highly sought after pirated clips"
• "YouTube's business model is completely sustained by pirated content. They are at the mercy of companies not responding with DMCA requests."
• "[Content owners] (mainly) perceive YouTube as trafficking mostly illegal content - it's a video Grokster"
SUF f 157 (emphasis added).
Despite Google's keen awareness that infringement was the linchpin to YouTube's success, in October 2006 Google decided to buy its rival - and its valuable user base built up with illegal content - for $1.8 billion. SUF fflf 16-19. Significantly, the vast extent of infringement on YouTube was confirmed by Google's own pre-acquisition due diligence conducted by Google executives and its financial advisor, Credit Suisse. SUF 1f[[ 166-82.
Credit Suisse analyzed a sample of videos from YouTube that Google deemed
representative of site traffic, and determined that more than 60% of the video views in the
YouTube sample were "premium," their shorthand for "the content is copyright[ed] (either in
whole or in substantial part)" or "removed [and] taken down" in response to a takedown notice
9 When deposed, Schmidt professed not to remember this email about "pirated content" all over YouTube, five months before Google acquired it. Hohengarten Decl. Tf 348 & Ex. 314 at 75:1482:4. The issue was not lost on other Google executives. For example, on May 10, 2006, Ethan Anderson, International Business Product Manager for Google Video, stated: "I can't believe you're recommending buying YouTube. ... they're 80% illegal pirated content." SUF \ 153.
15
(and thus plainly infringing). SUF 1170. Credit Suisse also estimated that YouTube had a license for only 10% of those premium copyrighted video views. SUF 174; see also SUF \ 171 (premium content on YouTube included "Legitimate and Illegitimate'" uploads) (emphasis added). In other words, 54% (90% of 60%) of the video views in the due diligence sample were of premium copyrighted content that was admittedly unauthorized by the content owner.
This analysis was incorporated into the board book prepared by Credit Suisse and presented to the Google board of directors on the day it authorized the purchase of YouTube, October 9, 2006. SUF fflj 175-76. The board book emphasized the "tremendous growth" in YouTube's user base and its "loyal global following." SUF ]f 178. Credit Suisse advised the Google board that virtually the entire financial value of YouTube, with a base case value of $2.7 billion, derived from Google's ability to monetize that vast entrenched user base in the future. SUF \ 180. The book then told the board that "60% of total video streams on yellow website" -their code name for YouTube - "are 'Premium.'" SUF f 181. The board also was advised that Credit Suisse's valuation "[ajssumes 10% of premium content providers allow [YouTube] to monetize their content in [fiscal year 2007]" - confirming that 90% of premium copyrighted content was simply being displayed on the site without permission. SUF \ 182. Google's entire board thus was on clear notice of the vast scope of YouTube's copyright infringement.10 Notwithstanding this knowledge, the board authorized the purchase. SUF \ 16.11
10 The board was even warned about "uncertain legal issues." SUF f 177. This was a euphemism for copyright infringement liability, as everyone well knew, for indemnification for copyright liability was a hotly negotiated deal term during the merger negotiations. Recognizing what it was buying, an early Google term sheet sought indemnification for copyright liability suits up to 12.5% of the purchase price. SUF \ 183. Recognizing what they were selling, YouTube's founders and investors strongly resisted, and a lesser copyright indemnification provision was agreed to by the parties in the merger agreement. SUF 184-85. After Viacom filed this suit, Defendants purportedly discovered a "scrivener's error" in the original merger
16
Whether the correct quantification of the scope of YouTube's piracy was that it attracted 80% of site traffic (per Steve Chen), accounted for 80% of its content (News America), 70% of its most popular videos and 75-80% of the resulting views (Maryrose Dunton), 80% of all content (Ethan Anderson), or 54% of all views (Credit Suisse), it was unavoidably clear, as Chad Hurley summed it up, that YouTube was "out of control with copyrighted material." Still, having paid an immense sum for a website literally overrun with illegal content, Google's highest priority was to preserve YouTube's competitive advantage and continue aggressively to grow the user base. After the deal closed, the mandate to aggressively grow came by way of an edict from Google CEO Schmidt. He instructed the YouTube team that their focus should be "to grow playbacks to lb/day [one billion per day]." SUF ]f 188. That goal remained unchanged until March 2008, when Chad Hurley wrote that "three weeks ago Eric shifted his thinking on YouTube's focus. So, since that time we have rapidly been redirecting our efforts from user growth to monetization." SUF J 201.
With its initial focus on user growth, Google reversed its own earlier copyright compliance policies and adopted YouTube's willful blindness strategy. Instead of screening as was done at Google Video, now every infringing video would remain freely available on YouTube until a copyright owner could detect it and send a takedown notice. SUF Tf 189. And Defendants' executives continued to be well aware of the massive infringement on YouTube, just as they had been in the pre-acquisition period. For example, an employee charged with
agreement and increased the size of the indemnification provision for copyright infringement. SUF If 186.
11 The acquisition price authorized by the board was $1.65 billion in Google stock based on a 30-day average of the stock price at the time of closing. SUF 116. When the deal actually closed on November 13, 2006, the purchase price was $1.775 billion. SUF If 19.
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selecting videos for prominent placement on the site reported that "we're running into issues finding enough videos because they have so many copyrighted violations." SUF f 192. Google executives emailed clips that infringed Viacom's copyrights to each other - but did nothing to stop the infringement. SUF fflf 190-91, 193-94. And a post-acquisition "YouTube Content Policy Training" manual even highlighted Viacom's "Daily Show" by name as an example of content to "Approve" when reviewing videos flagged for terms-of-use violations. SUF f 69. Thus, as Google founder Brin had candidly stated during Google's internal debate on this issue a few months earlier, the company was consciously "changing [its] policy to increase traffic knowing beforehand that we'll profit from illegal downloads." SUF ^[ 162. This changed only in mid-2008, after Schmidt "shifted his thinking on YouTube's focus," and Google began to use filtering technologies to curtail infringement.
Given Google's earlier history of respecting copyright, Viacom negotiated with Google from November 2006 until February 2007 over a possible "content partnership" agreement to license some of Viacom's copyrighted works to appear on YouTube. SUF ^[203. During the negotiations, Viacom made clear that without such a license, the appearance of Viacom works on YouTube was unauthorized. SUF ^[204. Viacom also insisted on compensation for past infringement of its works as part of any license. SUF 205. Google offered a package that it valued at a minimum of $590 million for a content license from Viacom. SUF ^[ 206. Importantly, Google's offer and term sheet included an explicit guarantee that Google would use digital fingerprinting technology to prescreen all uploads to YouTube and block any videos from Viacom works not licensed under the agreement. SUF |207. Ultimately, however, the negotiations broke down, and Defendants never obtained a license from Viacom. SUF 208.
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On February 2, 2007, Viacom sent takedown notices for more than 100,000 infringing videos on YouTube. SUF ^ 210.
With the collapse of the deal to license Viacom's videos, Google and YouTube withdrew their offer to use fingerprint technology to protect Viacom's content. This was so even though Viacom strongly urged the two companies to cooperate in good faith to clean up the site. Viacom's General Counsel, Michael Fricklas, pressed Defendants to use fingerprinting to prevent infringement of Viacom's works, and offered to have Viacom's technology experts cooperate with Defendants as needed to that end. SUF 209. Google's General Counsel, responding to Viacom and NBC Universal on February 16, 2007, rejected cooperation and refused to use fingerprint technologies for Viacom or NBCU in the absence of a license agreement. SUF ^ 217-18. Defendants did not deploy fingerprinting to prevent infringement of Viacom's works for another year and a half - long after this suit was filed. SUF 217-22.
Parallel to Viacom's efforts to elicit cooperation from YouTube and Google, the Motion Picture Association of America ("MPAA") engaged in a similar discussion on behalf of all the movie studios, including Viacom's Paramount. The history of the MPAA's failed efforts on behalf of all the movie studios vividly illustrates YouTube's and Google's attitude and practices.
The MPAA was represented in its talks with Defendants by its Executive Vice President and Chief Strategic Officer. SUF fflf 223-24. Starting around April 2006, the MPAA negotiated with YouTube because "there was a lot of copyrighted content on the site that was owned or controlled by the motion picture studios." SUF ]f 223. "The discussion was about encouraging YouTube to do two things: deal with the content that we identified on the site that was copyrighted, infringement content from the motion picture studios; and two, and relatedly integrating filtering software that would address that copyrighted content." SUF f 225. But after
19
months of futile discussions, YouTube refused to work with the MPAA or to utilize or even agree to test fingerprint and filtering technologies. YouTube's expressed reason was stark and candid: piracy was drawing users to the site. As the MPAA's EVP testified: "[t]here were a range of reasons given including the fact that the copyrighted content on YouTube was a major lure for their users." SUF1226.'2
Google announced its acquisition of YouTube on October 9, 2006. That revived negotiations with the MPAA. On October 13 and November 9, 2006, the MPAA transmitted two specific written proposals to the Defendants calling for cooperation and the testing of filtering technologies, including the technology of a company called Audible Magic, from whom YouTube already had a license in hand. SUF Iff 227-28; infra at 35. The MPAA even agreed to pay for the test. SUF ff 227-28. That was a generous concession, since the cost of filtering was comparatively trivial, SUF If 311, and Google hardly needed the financial boost, its cash hoard having grown to $11.2 billion by the end of 2006, SUF f28.
Google and YouTube did not respond for months. Then, in January 2007, Defendants flatly rejected cooperation or filtering to prevent piracy unless the studios granted Defendants licenses and revenue sharing agreements: "[F]or those companies who were not and did not develop a licensing agreement with Google, they weren't going to be doing this sort of a pilot
12 This testimony is particularly powerful since YouTube executives made the exact same statement to Google Video executives in 2006, which the latter even reduced to writing. On Friday, January 13, 2006, Peter Chane and a Google Video colleague met with YouTube's CEO Chad Hurley and another senior YouTube executive Chris Maxcy. SUF ^ff 140-41. Two days later, Chane wrote an email to Jonathan Rosenberg, the head of product development for all of Google, explaining that YouTube was able to display copyrighted content unavailable on Google Video because Google had a "zero tolerance policy to copyrighted content," whereas YouTube had no such policy and was using piracy on the site to draw user traffic. Chane wrote to Rosenberg: "[T]hey are aware of this [lax enforcement policy] (I spoke with them on friday) and they plan on exploiting this in order to get more and more traffic." SUF ^f 141.
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initiative or filtering." SUF f 229. That reflected the thinking of Google Senior Vice President Jonathan Rosenberg, who had earlier told Chane that the "lesson" from YouTube was to "play faster and looser and be aggressive until either a court says 'no' or a deal gets struck." SUF 1J160.
Within the month, having been rebuffed both individually and as a member of the
MP A A, Viacom commenced this suit.13
3. Defendants Cannot Walk Away from Their Contemporaneous Internal Documents.
The internal emails and memoranda of YouTube's founders and Google's senior executives discussed above make a compelling and indisputable record of Defendants' intent to use infringing videos clips to build the YouTube business. Viacom's position is not dependent
13 Having rejected all cooperation and filtering, the Defendants today hide behind their willful blindness policy and argue that they cannot be expected to differentiate between illegal and authorized clips. Hence, they argue, the responsibility for copyright compliance on YouTube should rest with the victimized content owners, with YouTube free to lure users to the site with "truckloads" of pirated materials unless and until the content owners detect them and request their removal listing specific infringing URLs. In this vein, much of Defendants' deposition time has been expended questioning whether Viacom employees had uploaded some videos to YouTube as promotional material, thereby authorizing their presence there. This whole exercise is a red herring. First, none of the infringing clips at issue in this lawsuit were uploaded to YouTube by Viacom or its authorized agents. SUF f 9. Second, the number of uploads to YouTube that Viacom did authorize (for which Viacom is not suing for infringement) was very limited compared to the 63,000 unauthorized infringing clips claimed by Viacom in this litigation. Hohengarten Decl. Ex. 2 (Solow Decl.) Iffl 17, 30-32. Third, of that small number of authorized clips, virtually all were uploaded to YouTube using official Viacom account names, and YouTube was fully aware of this fact. Id. f 31-32. Fourth, Defendants' own offer to use fingerprinting in connection with a license to block unauthorized works while permitting authorized uploads makes clear that Defendants had yet another way to distinguish between legal and illegal uploads had they wanted to. That is the entire point of fingerprinting. Had they cooperated, Defendants' entire authorization argument relied upon in this litigation would have been resolved and gone up in smoke. Instead, they chose the path of non-cooperation and willful blindness, forcing Viacom and other studios to play a cat and mouse game with illegal uploaders, with Defendants enjoying the financial rewards from this piracy in the interim.
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on extrapolations or interpretations from these documents. Defendants' own words, in plain English, speak for themselves - clearly and forcefully.
And this is a case where these written words speak all the more powerfully given the Defendants' failure to preserve and produce many key documents and the ostensible memory failures of their key executives when deposed. Among the most compelling documents are the internal emails and memoranda of YouTube's founders. Almost none of these key internal documents were produced by Google or YouTube, which claims they were all lost. Hohengarten Decl. f 263. Among others, Chad Hurley, a founder and YouTube's Chief Executive from its inception to today, revealed for the first time of his deposition that he "lost all" of his YouTube emails for the key time period of this case. Id. f 264. Fortunately, Karim, who left YouTube in 2006 and preserved these materials on his own personal computer, discharged his duties to this Court and produced them. Id. ff 218-63. Otherwise they would have never surfaced in this litigation.
Similarly unusual are the document destruction practices followed by Google's CEO Eric Schmidt. He claims to use and email from "probably 30" different computers. Id. f 348 & Ex. 314, at 7:7-10. As set forth above, Schmidt was deeply involved in the decision to acquire YouTube and its post-acquisition policies. Yet, for the key period from June 2006 (when Google started intensely to focus on YouTube's policies and practices and debated whether to acquire it) through February 2007 (when negotiations fell apart with Viacom and the MPAA, resulting in this lawsuit), Schmidt's search for responsive materials "yielded 19 documents." Id. *flf 266, 348 & Ex. 314 at 18. The absence of emails and documents is explained by a practice litigation-conscious in the extreme. Schmidt explained: "[i]t has been my practice for 30 years to not retain my emails unless asked specifically." Id. f 348 & Ex. 314 at 18. He went on to testify:
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"It was my practice to delete or otherwise cause the emails that I had read to go away as quickly as possible." Id. at 18-19.14
Similar bizarre practices surfaced when senior executives testified about these key documents. When Mr. Hurley was shown the email chains preserved by Mr. Karim, he developed serial amnesia. This is no lawyer's exaggeration: we include pages 177-317 of Mr. Hurley's testimony (Hohengarten Decl. f 346 & Ex. 312) and invite the Court to review it. To the same effect is the testimony of Larry Page, one of Google's two co-founders and top three executives, who essentially disclaimed memory on any topic relevant to this litigation, even including, for example, whether he was in favor of Google's acquisition of YouTube, even though it was Google's largest corporate transaction to date and viewed as transformative to its business. Hohengarten Decl. f 349 & Ex. 315, at 129:23-134:15. We enclose Mr. Page's entire deposition as Exhibit 315 to the Hohengarten Declaration. This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.
Due to these practices, we and the Court will never know what else was "lost" or made to "go away as quickly as possible." Fortunately, the documents that fortuitously survived and were produced still provide ample indisputable evidence of unlawful intent. Given Defendants' wholesale failures to preserve relevant documents or recall key salient facts, the surviving documents speak all the more loudly as undisputed facts that warrant summary judgment.
14 This practice is certainly ironic coming from the CEO of a company that prominently markets its email service to the public as providing "lots of space" and "free storage" for emails. Hohengarten Decl. f 316 & Ex. 288.
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B. Defendants' Intentional Operation of YouTube as an Infringement Haven Makes Them Liable Under Grokster.
Defendants' conduct squarely makes them liable for the infringement on YouTube under the Supreme Court's Grokster decision. In Grokster, the high court ruled that Internet businesses - like all other businesses - are liable for infringement when they operate a website with the unlawful intention, purpose, or objective that it will be used at least in part for infringing activity. The Court recognized no legal or social benefit in rewarding such piracy.
Grokster addressed whether two Internet "peer-to-peer" services were legally liable for facilitating infringement by their users who copied and distributed popular music and movies over the services. The lower courts in Grokster had ruled that the peer-to-peer services were immune from liability under the Supreme Court's earlier decision in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), because the services had "substantial noninfringing uses" - that is, they could be used for authorized exchanges of copyrighted works in addition to unauthorized infringement. Grokster, 545 U.S. at 927-28; id. at 931-32 (summarizing Sony holding). The Supreme Court likewise assumed the defendants' services had substantial noninfringing uses. Id. at 933-35. But the Supreme Court held that notwithstanding other substantial noninfringing uses, the services were still liable for the infringement they facilitated because they had the actual intent, purpose, or objective of facilitating infringement with their product. Id. at 937-40. Thus, "a copyright holder may proceed against a technology provider where a provable specific intent to infringe (of the kind the Court describes) is present." Id. at 962-63 (Breyer, J., concurring) (emphasis added).
The Grokster decision is squarely applicable here. First, the Supreme Court emphatically
rejected the knowledge standard applied by the Ninth Circuit in that case, which had held that the
peer-to-peer services could be secondarily liable for facilitating infringement only if they had
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"knowledge of specific infringement." Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 380 F.3d 1154, 1162 (9th Cir. 2004) (emphasis added), rev'd, 545 U.S. 913 (2005). The Supreme Court held that requiring '"specific knowledge of infringement'" was "error." 545 U.S. at 934. The Grokster Court recognized that acting with an unlawful purpose, intent or objective is the epitome of culpable conduct, and a defendant may not escape liability merely because it does not - or even could not - know of each specific act of infringement whereby its unlawful purpose comes to fruition. See id. at 922-23 (peer-to-peer services are liable even though they could not identify the specific works that were being illegally downloaded).15
The Supreme Court also emphasized that although the intentional facilitation of infringement is often called "inducement," this form of liability is not limited to situations in which a message encouraging infringement is actually communicated to users (e.g., through advertising). Rather, as explained above, Grokster held that a business is liable whenever it operates with a purpose of facilitating infringement, regardless of whether it communicates that message. Advertisements or other messages are only one form of "direct evidence of unlawful purpose." 545 U.S. at 935. Liability ultimately rests on the existence of the unlawful purpose itself, which can also be established by other kinds of evidence. Thus, whether "messages" encouraging infringement "were communicated is not to the point," because such messages are merely one way of "prov[ing] by a defendant's own statements that his unlawful purpose
15 Viacom notes that Defendants still have not produced data from YouTube's Logging Database that could show that senior YouTube and Google executives did, in fact, watch and know of many of the specific infringing videos at issue in this case. Nonetheless, there is abundant evidence in Defendants' emails and other communications to show that Defendants were well aware of specific cases of infringement of Viacom's copyrights without doing anything about it. See, e.g., SUF ft 32, 59, 69, 105, 110, 116-17, 122, 130, 132, 165. As Grokster makes clear, however, such specific knowledge is not needed for inducement liability based on an overarching intent to profit from infringement.
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disqualifies him from claiming protection." Id. at 938 (emphasis added). As a recent decision explained: "Importantly, liability may attach [under Grokster] even if the defendant does not induce specific acts of infringement. Instead, the court may 'infer[] a patently illegal objective from statements and actions showing what [the defendant's] objective was.'" Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578, slip op. at 23 (CD. Cal. Dec. 21, 2009) (citation and footnote omitted) (quoting Grokster, 545 U.S. at 941) (Hohengarten Decl. f2, Ex. 1).
Indeed, in Grokster the Supreme Court inferred the defendants' unlawful purpose from three factors that are direct echoes of the facts in this case: (1) the defendants were "aiming to satisfy a known source of demand for copyright infringement," which showed an "intent on the part of each to bring about infringement"; (2) "neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity," which "underscore[d] [the defendants'] intentional facilitation of their users' infringement"; and (3) the defendants made "money by selling advertising space," so that the "commercial sense of their enterprise turn[ed] on high-volume use, which the record show[ed] [was] infringing," which in the context of the entire record supported a finding of "unlawful intent." 545 U.S. at 939-40.
The Grokster Court also emphasized that this kind of unlawful intent can and should be found on summary judgment, effectively directing summary judgment for the plaintiffs in that case. Grokster, 545 U.S. at 941. On remand, the Grokster district court in fact entered summary judgment against the peer-to-peer services based on their "unlawful objective to promote infringement" shown through "voluminous documentary evidence." Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966, 971, 984, 985 (CD. Cal. 2006). Other recent cases - including in this District - have also not hesitated to enter summary judgment
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against businesses like YouTube and Google on this same basis. Fung, slip op. at 35; Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 150-54 (S.D.N.Y. 2009).
Here, the evidence of YouTube's and Google's unlawful objective of operating the YouTube site as a haven for infringement is even more powerful than in Grokster, Usenet, or Fung. YouTube's founders made a conscious decision to build their user base "as aggressively as we can through whatever tactics, however evil." SUF f 85. They knew the site was "out of control with copyrighted material" - including videos taken from Viacom programs they identified by name - but they decided not to block even "the obviously copyright infringing stuff," because if they did "site traffic [would] drop to maybe 20% of what it is." SUF fflf 54-58. They disabled community flagging for infringement (but not for other improper content) to avoid obtaining "notice" from users and to shift the entire burden to copyright owners. SUF *[ff 64-65. They sneered at rights holders as "copyright bastards" and "a-holes," killed simple engineering fixes that would have made it easier to detect infringement, and admitted they were "just trying to cover our asses." SUF fflj 34, 74-77, 107, 112-15, 119, 131, 135. They celebrated the popularity of known infringing clips to investors. SUF f 99. And they cynically mocked the very idea they would flag videos for removal after an executive identified 70 percent of the most popular clips as infringing. SUF ffl[ 95-96. At least one of the founders was himself "putting stolen videos on the site," while another urged his colleagues to "Steal it!" because "our traffic surged ... due to a video of this type." SUF ^ 44. It is no wonder Hurley was "concerned with the recent supreme court ruling on copyrighted material" in Grokster. SUF f 39. But the allure of using infringing videos to build the user base and get rich quick was too great. Instead of stemming the floodtide of infringement, the founders opted to "save [their] meal money for some lawsuits." SUF | 38.
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Likewise, Google decided to buy YouTube after its own executives warned senior management that YouTube was a '"rogue enabler' of content theft," a "video Grokster," "trafficking mostly illegal content," whose "business model is completely sustained by pirated content," with a "large part of their traffic ... from pirated content." SUF ff 157-59. Google's own board book, documenting traffic of 60% "premium" content of which only 10% was authorized, validated these warnings. SUF ff181-82. Google then adopted YouTube's copyright policy to "increase traffic knowing beforehand that we'll profit from illegal [djownloads." SUF 162. And when a license from Viacom was not forthcoming, Defendants refused to use the fingerprinting technology they already had in hand or other proactive measures to block Viacom videos, knowing they had no license from Viacom. SUF ff 203-17. They even rejected proposals by Viacom and the MPAA that they jointly test filtering techniques, an investigation that the MPAA agreed to largely fund. SUF ff 209, 217, 227-28. Unless they were awarded a content license, Defendants refused to prevent illegal uploading and imposed the entire burden on Viacom and the other studios to search YouTube 24/7 for infringing clips -while Defendants reaped the profits. Id.
In short, "unequivocal indications of unlawful purpose in [Defendants'] internal communications," Grokster, 545 U.S. at 938, plainly show that Google and YouTube "knew [their] business model depended on massive infringing use, and acted to grow [their] business accordingly," Grokster, 454 F. Supp. 2d at 989. In addition, the other indicia of unlawful purpose noted in Grokster are also present here. First, Defendants were "aiming to satisfy a known source of demand for copyright infringement." 545 U.S. at 939. Whether Chen had it precisely right in September 2005 when he estimated infringement-driven traffic at 80%, or Dunton at 70% in February 2006, or Google's diligence team at 54% in October 2006, "the
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staggering scale of infringement makes it more likely that [Defendants] condoned illegal use, and provides the backdrop against which all of [Defendants'] actions must be assessed." Grokster, 454 F. Supp. 2d at 985.16 Second, as detailed infra at 34-37, Defendants refused until May 2008 to implement readily available "filtering tools or other mechanisms to diminish the infringing activity" in order to protect Viacom's works. 545 U.S. at 939. That overall failure "underscores [their] intentional facilitation of... infringement." Id. It also highlights their deliberate strategy of willful blindness. Third, as described infra at 29-31, Defendants "make money by selling advertising space, by directing ads to the screens of computers employing their [service]." Grokster, 545 U.S at 940. "[T]he more the [service] is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the [service's] use determines the gain to [Defendants], the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing." Id. That describes YouTube to a tee: If Defendants stopped the infringement, it would slash site traffic and with it current as well as future advertising revenue.
Google and YouTube were not just innocent and unwitting accomplices to infringement perpetrated by YouTube users. Defendants operated YouTube with the unlawful objective of using infringing material to explosively build their user base and become the dominant video website on the Internet. Grokster establishes beyond question that they are liable for the infringement they intentionally made possible.
16 Moreover, Defendants' infringement of Viacom's works has been far more extensive than indicated by the already large number of accused clips at issue in this litigation due to infringement of content for which Viacom owns, but has not registered, the copyright. See Reed Elsevier, Inc. v. Muchnick, No. 08-103, 2010 WL 693679, at *3, *11 (U.S. Mar. 2, 2010) (court has subject-matter jurisdiction to adjudicate infringement claims for unregistered works and include them in relief such as settlement); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1154 n.l (9th Cir. 2007) (registration requirement "does not limit the remedies a court can grant").
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II. DEFENDANTS ARE VICARIOUSLY LIABLE BECAUSE THEY DERIVED A DIRECT FINANCIAL BENEFIT FROM INFRINGEMENT THAT THEY HAD THE RIGHT AND ABILITY TO CONTROL.
Even apart from their unlawful intent, Defendants are secondarily liable for the infringement on YouTube under principles of vicarious copyright liability, because they derived a direct financial interest from the infringement and had the right and ability to control it.
A. Statement of Undisputed Facts Relevant to Point II
1. Defendants' Direct Financial Benefit from Infringement Like TV stations and other media outlets, YouTube makes money by selling ads that appear on YouTube and are seen by users who come to the site to find and watch videos -including the majority of users drawn by infringing videos. YouTube initially focused its efforts on building up a base of users who would spend time on the site and return in the future. SUF THf 29-30, 35-37, 44, 57, 188; supra at 5-8. Once that user base reached a critical mass, YouTube sought to "monetize" it, principally through advertising. SUF 201, 236, 238-40.
YouTube's monetization has centered on selling advertising that appears at different places on the YouTube site. From a few months after YouTube's founding until January 2007, ads appeared on the "watch page" (the webpage on YouTube where a user views a selected video) for videos without regard to whether YouTube had a license agreement with the owner. SUF ff 241-46. For example, when a viewer watched an infringing clip from Viacom's hit programs such as "The Daily Show," "South Park," "Rugrats" and many others, an advertisement appeared next to the video and YouTube earned revenue from that advertising. SUF ft 247, 251 (screen shots of advertising on the watch pages for Viacom works). The scope of the user base watching those ads was staggering. In the pre-acquisition board book, Google's financial advisor projected there would be 126 billion watch page views in 2007. SUF f 246.
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Displaying ads on the watch pages of infringing videos represents the most clear-cut
direct financial benefit imaginable, and Google quickly came to realize that it was fatal to its
efforts to evade liability. So the practice came to a screeching halt in January 2007. SUF t 248.
An internal email among senior Google advertising executives explained:
A major decision in the works that you should be aware of - for legal reasons (that I don't fully understand what has changed, and our GC will be back in SF on Monday to articulate) all ads/monetization on the watch pages for user generated content will need to come down. This will have a tremendous impact on inventory.
SUF If 250 (emphasis added). But, of course, this abrupt change in policy could not change the fact that YouTube advertised on watch pages during the explosive growth year of 2006. Thus, YouTube in this litigation cannot even hope to disclaim receipt of a direct financial benefit through users watching illegal videos.
Even thereafter, Defendants continued to place ads on other pages of the YouTube site and thereby profited from users drawn by infringing material. First, they sold ads appearing on the YouTube homepage. SUF ft 252-53. Second, they sold ads that appear on search results pages - the largest source of revenue on YouTube. SUF tf 254-57. Third, they sold ads that appear on browse pages, i.e., pages organizing videos by category or other characteristics such as "most watched." SUF f 260. Thus, if a user went to YouTube looking for clips that infringed Viacom's copyrights in popular shows like "South Park," either via the home page, a term search, or browsing, YouTube made money from the ads served to that user drawn by infringing material. SUF t1f259, 266. Google's pre-acquisition board book projected more than 154 billion views of the home and search results pages alone in 2007. SUF f 179. Fourth, YouTube displayed ads on every upload page, i.e., the webpage shown to an uploading user during the upload process. SUF t 262. Thus, Defendants made money from infringement of the accused
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clips infringing Viacom's copyrights here by advertising to the user as he or she uploaded the infringing video. Fifth, even after January 2007, YouTube showed "house ads" and suggested "related videos" on the watch pages of infringing videos, thereby driving traffic to other parts of the site with advertising. SUF 263-65, 335-36.
Moreover, as noted previously, by Defendants' own internal written admissions, 54 to 80 percent of the video views and site traffic on YouTube was drawn by unauthorized copyrighted clips. See supra 16-17. As a Google executive overseeing monetization of YouTube explained, "Users are searching for lots of things, but primarily for premium content." SUF 195. Having those popular videos was critical to building up a monetizable user base. See supra 8-9. That was why the founders adopted their willful blindness strategy, and what Google found so financially attractive about YouTube when it agreed to pay $1.8 billion. (Point I supra). 2. Defendants' Right and Ability to Control Infringement
In addition, YouTube and (after the acquisition) Google have always had the right and ability to control the infringement on YouTube. They simply chose not to. YouTube has always had and exercised the unfettered right to remove videos from the site and terminate user accounts for any reason at YouTube's complete discretion. SUF 1267 (YouTube terms of use); SUF 1268 ("The terms of use states specifically that we have the right to remove content at our sole discretion for any reason whatsoever"). And YouTube does in fact constantly remove videos and terminate user accounts based on the judgment of YouTube employees that videos uploaded by a user include content that YouTube does not want to have on its site, such as hate speech, violence, or erotic videos. SUF tf 269-73. Thus, YouTube, not its uploading users, exercises the ultimate editorial judgment and control over the content available on the site.
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YouTube has also always had the practical ability to prevent a large amount of the blatant copyright infringement on the site - if it wanted to. But it consistently refused to do so.17 For example, until November 2005, YouTube employees reviewed every uploaded video to screen out pornography, hate speech, and violence. SUF f269. Yet, YouTube deliberately decided not to remove even "blatantly" or "obviously" infringing videos. Supra at 7-10. It easily could have. During the same period, Google Video used human review to block 10% of all uploads for terms-of-use violations - of which a 90% were due to copyright infringement. SUF \ 137. Google abandoned that practice around the time it bought YouTube. SUF f 138.
As site traffic grew, YouTube had the ability to identify infringing videos in the same way it keeps pornography and hate speech off the site to the present day. In Fall 2005, YouTube instituted "community flagging" for identifying suspect videos. SUF f 61-62. This tool enlists YouTube's users to flag videos they believe are inappropriate with a click of a mouse on a menu supplied by YouTube. SUF f 63. A flagged video is then put in a queue for review by YouTube employees, who make the decision whether to remove it. SUF f 66. Community flagging has expedited removal of pornography and other content YouTube regards as undesirable. SUF Tf 70.
YouTube instituted community flagging for copyright violations in September 2005 too. SUF ft 61-62. That lasted two weeks. SUF f 65. As discussed above, YouTube stopped community flagging for copyright not because it was ineffective, but because it would generate
17 The only, very limited exception is that YouTube employed a technology called "hash-based identification" to prevent a new upload of a video file that is exactly identical to one that was removed pursuant to a takedown notice or other policy violation. SUF 1274. However, such identification will not prevent the same content from being uploaded as a video file that differs in even the slightest way from the first. SUF If 275. And even this minimal protection against infringement was triggered only if a copyright owner first sent a takedown notice. SUF 1276.
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red flags and put YouTube on "notice" of specific copyright violations. SUF f 64. YouTube had a practical tool to detect infringement, and opted to disable it for precisely that reason.
YouTube has also always had the ability to find infringing clips by searching for keywords associated with copyrighted content (e.g., "daily show") using YouTube's own search feature and index. This is the method that copyright owners are forced to use to find videos that infringe their copyrights on YouTube in order to send takedown notices. SUF ^ 277-78. YouTube could, of course, do it too. Indeed, until October 2006, YouTube employees sporadically engaged in just such term searches for copyrighted material. SUF f 272. But they removed only some of the infringing content they found, and left other blatantly infringing clips on the site when they thought the increased site traffic outweighed the risk of getting caught. Supra at 11-12. Google had used the same technique for its Google Video website using search terms for many Viacom programs before it acquired YouTube. SUF 1139.
In fact, Defendants' practical ability to combat infringement in this way is greatly superior to having copyright owners deploy the same method. Rights holders can only search for infringing videos after the videos are live on the YouTube site, resulting in inevitable delay during which Defendants reap the profits - before removal through a takedown notice. SUF 1279. In fact, as discussed above, YouTube's business plan was predicated on using this delay in detection and takedown to generate site traffic with infringing videos in the interim. Supra at 9. In contrast, Defendants, as the operators of the YouTube site with unique control over it, can use keyword searching (human or automated) to identify and block likely infringing videos during the upload process, thereby preventing the infringement before it happens. SUF f 280.
Indeed, YouTube almost implemented an automated search tool, but abandoned it precisely because it would be effective. SUF f 112-14. In an instant message exchange between
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YouTube engineer Matt Rizzo and YouTube executive Maryrose Dunton, Rizzo explained that setting up that tool "isn't hard" and would only "take another day or w/e [weekend]." SUF 1114. But Dunton said "[I] hate this feature. I hate making it easier for these a-holes" -referring to copyright owners - and directed the engineer "to forget about" the tool Id. As she explained, "we're just trying to cover our asses so we don't get sued." Id.
Last, but not least, from the start YouTube had access to a more sophisticated tool to identify and filter out infringing videos, technology known as digital fingerprinting. A digital fingerprint is a unique digital identifier of the content in the audio and/or video track of an audiovisual work. SUF ^[281. In order to identify probable infringement, a digital fingerprinting service maintains a reference database of the digital fingerprints of copyrighted works obtained from copyright owners (much as the FBI maintains a reference database of fingerprints). SUF f 282. Then, when a video is uploaded to YouTube, the technology can instantaneously take the digital fingerprint of the uploaded video (much like a real fingerprint taken from a crime scene) and compare it to the reference database of fingerprints of copyrighted works. SUF ^[ 283. If there is a fingerprint match - indicating that the audio and/or video track of the uploaded video matches a copyrighted work in whole or in part - then YouTube can automatically block the upload or take other action, such as flagging the video for employee review. SUF If 284. Computers readily accomplish this function during the upload process so that infringing videos never go live on the site. SUF ff 285.
Audio fingerprinting services have been in widespread commercial use to forestall copyright infringement over the Internet since well before YouTube started business. SUF ft 286-90. Early on, copyright owners urged YouTube to use such fingerprinting technology to stop infringement. SUF ff 225, 291. Initially YouTube refused to implement fingerprinting at
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all. SUF 226. In October 2006, however, as Google was acquiring YouTube, YouTube contracted with a established fingerprinting vendor called Audible Magic to fingerprint videos uploaded to the site and check them against reference fingerprints of copyrighted works. SUF t292. This Audible Magic technology was available when YouTube was founded, and the cost was minimal for the dominant Internet video site: $200,000 to $300,000. SUF fflf 287, 311.
But even after Defendants began using Audible Magic fingerprinting on YouTube, they refused requests by copyright owners to use that technology to prevent infringement of any owner's copyrights - unless the owner first granted YouTube a content license and revenue sharing deal. SUF 293-98. Specifically, during 2006 and 2007, Defendants negotiated with most major content owners for legitimate licenses for their intellectual property on YouTube. In every such negotiation, Defendants agreed to utilize filtering and fingerprinting to protect the owner's intellectual property - as part of a license agreement. SUF ft 299-310. Thus, YouTube offered to use fingerprinting for Warner Music in September 2006, for CBS in October 2006, for Turner in October 2006, for Disney in December 2006, for Viacom in 2006 and again in February 2007, for NBC Universal in February 2007, for EMI in March 2007, and for Universal Music in June 2007 - all in connection with license agreements. Id.
Yet there was a catch - and a giant one. Until 2008, Defendants refused to use this existing fingerprinting technology, even though it had an Audible Magic license in place to do so, for a content owner to prevent theft of its intellectual property unless the owner agreed to grant YouTube a content partnership license. SUF tf 296-98. Thus, Google and YouTube used fingerprinting as a pressure point: if a company wanted its intellectual property protected, it had to agree to grant a content license for many of its works or face having its shows uploaded without restraint onto YouTube. Id. In fact, YouTube structured its relationship with Audible
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Magic to check uploaded works only against the reference fingerprints for works of companies that had granted YouTube a license. SUF ff 294-96. Reference fingerprints of all other works were simply ignored. Id.
As noted, Defendants offered to use Audible Magic fingerprinting as part of a potential content partnership license from Viacom. SUF \ 207. But after those license negotiations ended in an impasse, Google's General Counsel rebuffed the request of Viacom's General Counsel to cooperate to stem infringement using the same Audible Magic fingerprinting that Google had just offered as part of a license deal. SUF ^[209, 217; supra at 18-19. At the same time, it rebuffed similar offers to cooperate from movie studios through the MPAA, which also proposed that YouTube deploy the Audible Magic technology it already had in hand. Supra at 19-20.
Shortly thereafter, Viacom filed this lawsuit. Still Defendants refused to use fingerprinting or the other proactive measures at their disposal to stem the infringement of Viacom's copyrights on YouTube. SUF 217-20. Finally, at the first status conference before this Court in July 2007, months after this suit was filed, Defendants' counsel announced for the first time that Defendants would now implement their own proprietary video fingerprinting technology and would make it available to all copyright owners. SUF f 314. Despite this promise, Defendants did not in fact deploy this Google proprietary system to block infringement of Viacom's copyrights until May 2008. SUF \ 222. All the while, Defendants operated Audible Magic's technology on YouTube (and continued to do so until the end of 2009), but refused to use that existing tool to protect Viacom's rights during the interim period before the Google technology was up and running. SUF "|| 293-98. Thus, from YouTube's founding in 2005 until May 2008, Google and YouTube had the right and ability to take major steps to
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control infringement through existing technology but refused to do so. In the meantime, YouTube swelled its user base and became the dominant video site on the Internet.
B. Defendants' Financial Interest and Control Makes Them Vicariously Liable.
Defendants are liable under established rules of vicarious copyright liability, long applied in this Circuit, which arises when "the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials - even in the absence of actual knowledge." Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963); see also id. at 308 (vicarious liability "plac[es] responsibility where it can and should be effectively exercised"). Both elements of vicarious liability exist here. 1. Direct Financial Benefit
Defendants derive an obvious and direct financial benefit from the infringing activity on YouTube. The Second Circuit's Shapiro decision built on cases holding dancehall operators liable for infringing performances by bands they engaged because the infringement provided "the proprietor with a source of customers and enhanced income." 316 F.2d at 307; see also Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931) ("One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played"). Those cases exemplify a firmly established rule in copyright law: a direct financial benefit exists whenever infringing material is a "draw" for customers. Fonovisa Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263-64 (9th Cir. 1996).
The "draw" standard was applied to the Napster peer-to-peer service, which users employed to exchange infringing copies of sound recordings. ASM Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001). Napster had a direct financial interest in infringement even though it had never earned any revenue, because infringing recordings were a "draw" for
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users, and Napster's "future revenue [was] directly dependent upon 'increases in userbase.'" Id. at 1023. Courts in this District have applied the "draw" standard of financial interest in similar situations. Arista Records, Inc. v. Mp3Board, Inc., No. 00 CIV. 4660 (SHS), 2002 WL 1997918, at *11 (S.D.N.Y. Aug. 29, 2002); Usenet.com, 633 F. Supp. 2d at 156-57.
Google and YouTube incontestably derived a direct financial interest from the infringement on the YouTube site under this draw standard. As in Napster, YouTube's founders built up its user base using the draw of infringing material with plans to monetize that user base in the future - which they did by flipping the business to Google for $1.8 billion. Supra at 5-8. And infringing videos were the major draw for the site - accounting for 54 to 80 percent of video views and site traffic using Defendants' own estimates - during the period when YouTube established its dominance. Supra at 16-17; see also SUF fflf 196-200, 202. Thus, although "[t]here is no requirement that the draw be 'substantial'" for there to be a direct financial interest in infringement, Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004), here the infringing draw was in fact enormous.
In addition - and in this respect unlike Napster, which had no current revenues -Defendants have earned actual ad revenue from the draw of infringing videos on YouTube. As Judge Connor explained, "YouTube is supported entirely by advertising revenues" and its "unique drawing power ... is almost wholly attributable to its broad and varied store of streaming videos." United States v. ASCAP (In re Application of YouTube, LLC), 616 F. Supp. 2d 447, 449 (S.D.N.Y. 2009). That "drawing power" was largely due to infringement. Supra at 16-17. That constitutes a direct financial benefit, and Defendants effectively conceded as much when, "for legal reasons," they stopped placing ads on watch pages of infringing videos in early 2007, after Google's acquisition. SUF f 250. Of course, that could not undo the fact
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that they earned revenues from ads on the watch pages of infringing clips before 2007. SUF Iff 241, 247, 251. And even without watch page ads, Defendants directly benefit from infringement by placing ads on the home, search, browse and upload pages that are viewed by users drawn by infringement. SUF ff 252-66. Thus, "[t]he more new visitors [Defendants'] infringing site attracts, the more money [Defendants] make[]." Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1181 (CD. Cal. 2002). That is a direct financial interest in infringement.
2. Right and Ability To Control
Defendants also have the right and ability to control the infringing activity on YouTube. This element is satisfied when the defendant has and exercises the right to block users or content for any reason at its complete discretion. E.g., Napster, 239 F.3d at 1023.18 Moreover, the defendant need not have perfect or absolute control over the infringing conduct. For example, the Ninth Circuit emphasized that Napster had limited control over infringing use of its peer-to-peer service because it only controlled an imperfect index of recordings available for download, not the recordings themselves. Id. at 1023-24. But that limited control was sufficient for vicarious liability. Id. at 1024. While perfection was not required, Napster's "reserved right to police [had to] be exercised to its fullest extent." Id. at 1023.
Defendants have, and frequently exercise, the right to remove videos from YouTube at their complete discretion for any reason whatsoever. They routinely remove videos containing adult material, hate speech, nudity, violence, and any other content that Defendants, in their sole
18 Some cases have suggested the defendant must also have some additional "practical ability" to "stop or limit the . .. infringing conduct." E.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1173-74 (9th Cir. 2007). Although that standard has not been applied in this Circuit, as we show below, Defendants also have such practical ability.
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judgment, deem offensive or incompatible with the kind of media and entertainment destination they want to operate to attract the broadest array of viewers. SUF ff 267-72. This kind of broad power has been viewed as the epitome of the right and ability to control. Napster, 239 F.3d at 1023 ("The ability to block infringers' access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise"). When a media business removes material at its discretion, then that business is exercising ultimate editorial control over the content on the site, even if users select works for submission in the first instance.
And Defendants have always had the practical ability to use their editorial control over the YouTube site to limit infringement. As we have described in detail, YouTube had an array of techniques available to it to find infringing uploads, ranging from human review, to community flagging, manual or automated term searches using YouTube's own index, and digital fingerprinting. Supra at 31-37. Yet Defendants deliberately chose not to deploy those techniques, instructing human reviewers and keyword searchers not to remove blatantly infringing videos; shutting down community flagging for infringement after two weeks because it might put them on notice of infringement; killing a keyword filter because they did not want to help "these a-holes" (i.e., copyright owners); and refusing to use digital fingerprinting unless the rights holder granted a license. Supra at 9-11, 17-20. Indeed, YouTube and Google actually made use of their practical ability to curtail infringement for favored license partners by using Audible Magic fingerprinting beginning in early 2007 - but refused to use the very same tools to prevent infringement of Viacom's copyrights until at least May 2008. SUF fflj 222, 295-98.
This is a textbook case where vicarious liability arises because Defendants deliberately refused to exercise their "reserved right to police ... to its fullest extent." Napster, 239 F.3d at 1023. As the Second Circuit has explained, where a defendant has "the power to police carefully
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the conduct of its" users, vicarious liability "will simply encourage it to do so, thus placing responsibility where it can and should be effectively exercised." Shapiro, 316 F.2d at 308; see also Napster, 239 F.3d at 1023 ("Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability."). YouTube and Google are vicariously liable. III. DEFENDANTS ARE ALSO LIABLE AS DIRECT INFRINGERS.
In addition to being secondary infringers, YouTube and Google are direct infringers in their own right. Unlike peer-to-peer networks, where the infringing conduct occurs on the computers of users, Grokster, 545 U.S. at 919-20, here Defendants actively and volitionally participate in infringing acts that occur on facilities they control and operate, pursuant to processes they have developed and frequently modify, typically with no input from users at all.
A. Statement of Facts Relevant to Point III
Although users initially select the videos they will submit or "upload" to YouTube, YouTube and Google are inextricably implicated in all of the actual acts of reproduction, public performance and display, and distribution that constitute direct infringement. When a user submits a video for upload, YouTube makes an exact copy of it in its original format (i.e., the format in which it is uploaded by the user). SUF f 315. In addition, YouTube makes one or more additional copies of every video during the upload process in a different format called Flash. SUF Iff 316, 318.19 YouTube makes these additional copies on its own initiative because it is an entertainment site, and YouTube's use of the Flash format allows it to perform videos for virtually any visitor to its site via the Internet. SUF ^f 319. As YouTube's longest-employed engineer testified, "[t]he system performed ... the replication as a course of its normal operation, ... uninstructed by the user." SUF Tf321. In addition, well after initial upload, "[f]or
19 Making copies in different file formats is called "transcoding." SUF f 317.
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particularly popular videos that are watched very frequently" on YouTube, YouTube makes and sends "a replica" of the video to a "content distribution partner to facilitate timely streaming to all users." SUF f 322. YouTube then performs the infringing videos by streaming them on demand to the computers of millions of users. SUF f 323. That is, of course, YouTube's entire purpose as a "media entertainment" site. On top of that, YouTube distributes a complete copy of an infringing video to the computer of any user who views it, which is retrievable for playback and permanent storage. SUF f 323.
YouTube and Google also have granted licenses to other major companies to distribute YouTube's library of videos broadly over other "platforms" beyond YouTube's Internet-accessible site. YouTube has contracts with Apple to distribute videos over iPhones and AppleTV, SUF 1324; with Sony, Panasonic, and TiVo, SUF fflj 325-27; and with the world's largest cellular companies such as Cingular, Verizon Wireless, and Vodafone, SUF If 328. Such third-party platforms often are not compatible with YouTube's Flash format. Thus, to distribute videos over these new platforms, in 2007 Defendants began working through YouTube's library of videos uploaded in the past so that Defendants could make even more new copies of those videos in at least two more file formats that work with these different third-party platforms. SUF 1f 330. YouTube made these new copies on its own initiative, without any request by its users, many of whom had uploaded the original videos months or years before. Id. The uploading users also had no input into the commercial terms agreed between Defendants and the companies that operate the third-party platforms, which typically involve revenue sharing from advertising under terms negotiated by Defendants. SUF f]f 324-28.
Defendants also take many other proactive steps to induce users to watch videos and thus generate advertising revenues without any input from the users who upload videos. YouTube
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employs "editors" to scour the site for interesting videos that YouTube, on its own initiative, then "features" with conspicuous positioning on its home page. SUF f 331. YouTube gives prominent placement to videos that are most viewed, most frequently tagged as "favorites" by users, or currently being watched on the site. SUF f 333. YouTube indexes videos and provides a search function so that viewers can find videos using search terms, suggests related videos to users whenever they are watching a video, and provides a host of ways to browse through videos. SUF TC( 334-42. These features keep users glued to the YouTube site, allowing Defendants to earn more advertising revenue - just as a TV station profits by keeping viewers glued to the screen. As founder Jawed Karim explained, "users who keep coming back ... are really valuable because they spend time watching. And if they watch, then it's just like TV, which means lots of value." SUF f 35. And, of course, Defendants, not users, negotiate the advertising deals that generate revenue for their entertainment business.
Tellingly, YouTube requires uploading users to accept Terms of Service providing that the user "grant[s] YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform" each uploaded video. SUF \ 345. That purported license on its face covers multiple acts of direct infringement. YouTube also requires a user to warrant that he or she owns the copyright for videos a user uploads, or has permission from the copyright owner to do so. SUF f 346. Thus, YouTube's Terms of Service acknowledge that Defendants need a valid license from the actual copyright owner to copy and perform a video on the YouTube site. But, as previously discussed, Defendants know the purported "licenses" they obtain from uploading users under YouTube's terms of use are shams for almost all of the professionally produced videos that fill the site, only 10% of which are legitimately licensed. Supra at 16.
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Because they know the purported licenses they obtain from uploading users for most professional media content are a sham, Defendants have sought content partnership licenses from content owners - again showing they know their conduct constitutes infringement absent a license. SUF fflj 203, 347, 299-310. In doing so, Defendants demand a release for their prior infringing activities "arising out of or in connection with, the unauthorized reformatting, duplication, distribution, hosting, performance, transmission or exhibition of the content owners' intellectual property. SUF If 347. By their own words, Defendants demonstrate their understanding that a license is required for these directly infringing activities.
B. Defendants' Own Conduct Constitutes Direct Infringement
Defendants are committing direct infringement. As noted, unlike peer-to-peer networks,
all the infringing acts on YouTube are being committed on facilities operated and controlled by Defendants themselves, not their users. Defendants themselves engage in the copying, public performances and displays, and distribution of copies that infringe Viacom's exclusive rights under copyright. See 17 U.S.C. § 106; SUF ff 315-16, 318, 320-23, 330, 343-44.
Moreover, Defendants' involvement in these infringing acts meets and exceeds the level of "volition" required for direct infringement by copying under Second Circuit case law. See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130-31 (2d Cir. 2008), cert, denied, 129 S. Ct. 2890 (2009). Although direct infringement is a strict liability tort, see id. at 130, the Court of Appeals concluded that it still requires some element of "volitional conduct," a requirement derived from a line of cases beginning with Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) ^Netcom"). See Cartoon Network, 536 F.3d at 131; see also id. at 130 ("The question is who made this copy").
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Netcom concerned a company that simply provided basic Internet functions that others used to transmit infringing material, and reasoned that "the mere fact that Netcom's system incidentally makes temporary copies of plaintiffs' works does not mean Netcom has caused the copying." Netcom, 907 F. Supp. at 1368-69 (emphasis added). In Cartoon Network, the Second Circuit reached the same conclusion about a service called RS-DVR that made a single copy of a copyrighted work as an automated response to a user's request for that copy, where access to the resulting copy was strictly limited to the user who requested it. 536 F.3d at 130. The Second Circuit reasoned that this service was simply the equivalent to a remote-storage DVR or VCR, and that the home viewer who records a program on a DVR or VCR is the person who makes the copy and thus the direct infringer. Id. at 131.
But as two Judges in this District have recognized, the "volitional conduct" standard of Cartoon Network is satisfied where - as here - the defendants' intentional conduct transforms them "'from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement.'" Usenet.com, 633 F. Supp. 2d at 148 (quoting Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F. Supp. 503, 513 (N.D. Ohio 1997)); accord Capital Records, Inc. v. Mp3Tunes, LLC, No. 07 Civ. 9931(WHP), 2009 WL 3364036, at *4 (S.D.N.Y. Oct. 16, 2009); see also Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp. 543, 552-53 (N.D. Tex. 1997), aff'd, 168 F.3d 486 (5th Cir. 1999). These cases stand for the proposition that when defendants themselves operate the computers and other facilities where infringing acts take place and do so with the intent of providing a haven for infringement, their conduct exceeds the minimal level of "volition" required to commit direct infringement -which is, after all, a strict liability tort, see Cartoon Network, 536 F.3d at 130. And, as shown
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above in Point I, Defendants have operated YouTube with the actual intent to infringe. The volitional element of their direct infringement is easily satisfied.
The volitional aspect of Defendants' infringement is also demonstrated by another sharp contrast with the service addressed in Cartoon Network. In that case, the RS-DVR service made a single copy of a program as an automatic response to a customer request for the copy, and then stored that copy for that customer alone. Cartoon Network, 536 F.3d at 130. Here, in stark contrast, Defendants do not simply make a single, personal copy of an infringing video when a user submits it for upload. To the contrary, YouTube makes multiple additional transcoded copies without any prompt or request by the user, and then performs that video to millions of viewers on demand. And long after the uploading user submits a video - possibly months or even years later - Defendants make additional server copies of the videos depending on viewing demand and how Defendants choose to manage their system. Defendants have also made additional copies long after upload in different transcoded formats on their own initiative so that they could distribute the videos over third-party platforms under distribution deals that Defendants - not their users - negotiated. Defendants did not commit that infringing conduct in response to user requests. They did it on their own initiative, just like any other media company whose business is the financial exploitation and distribution of entertainment content. They are therefore liable as direct infringers.
IV. DEFENDANTS DO NOT QUALIFY FOR THE DMCA DEFENSE.
As shown above, Defendants are plainly liable under three bases with deep roots in copyright law. The extent of copyright infringement on YouTube has been so extensive, and Defendants' conscious decisions to welcome and cast a blind eye to such piracy so clear cut, that Defendants have only one place to attempt to hide: they claim the DMCA immunizes their
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conduct. But Congress through the DMCA did not immunize the kind of extremely culpable conduct at issue in Grokster (and here), or quietly and by implication repudiate cases like Shapiro and years of copyright law by creating a safe haven for willful or willfully blind infringers who refuse to remove infringing material unless they receive takedown notices. For many of the same reasons described above in establishing liability, Defendants cannot escape liability for their infringing conduct by seeking refuge in the DMCA safe harbor.
The DMCA was inspired by Netcom, the case that introduced the concept of a "volitional act" into direct liability. See H.R. Rep. No. 105-551(1), at 11 (1998); supra, Point III. Netcom reasoned that businesses carrying out specified core Internet functions should not be liable as direct infringers for incidental infringement in the absence of volitional conduct - but should be held accountable under the more stringent standards that apply to secondary infringement claims. See Netcom, 907 F. Supp. at 1373. Thus, the preconditions of the DMCA immunity reflect and largely track traditional secondary liability standards. If Defendants are liable for infringement under these long established standards, they thereby also lose resort to the DMCA. See Fung, slip op. at 36 ("In many ways, the Digital Millennium Copyright Act is simply a restatement of the legal standards establishing secondary copyright infringement - in many cases, if a defendant is liable for secondary infringement, the defendant is not entitled to Digital Millennium Copyright Act immunity").
The wording and logic of the statute makes this clear. The DMCA safe harbor is closed to a service provider that has "actual knowledge" or is "aware of facts or circumstances from which infringing activity is apparent," but does not "act[] expeditiously" to stop it. 17 U.S.C. § 512(c)(1)(A). The DMCA also incorporates vicarious liability standards by denying immunity to defendants that "receive a financial benefit directly attributable to the infringing activity" and
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have "the right and ability to control such activity." Id. § 512(c)(1)(B). Moreover, the DMCA does not eviscerate copyright by immunizing any and every infringing activity on the Internet, but protects only incidental infringement unavoidably caused by performing specified core Internet functions, such as providing "storage at the direction of a user." Id. § 512(c). To qualify for the DMCA defense, a provider must show that it passes all of these tests (and others). E.g., Tur v. YouTube, Inc., No. CV064436, 2007 WL 1893635, at *2-*3 (CD. Cal. June 20, 2007). As we show next, Google and YouTube fail all three.
Defendants nonetheless maintain that the DMCA immunizes them for their infringing conduct solely because Defendants remove the specific infringing videos identified by URL in takedown notices from copyright owners. If that were true, then the DMCA would be just a takedown notice statute, and all else meaningless surplusage. Defendants' problem is that the plain statutory language makes clear that responding to takedown notices is only one of several preconditions of the DMCA defense. See 17 U.S.C. § 512(c)(1)(C); see also S. Rep. No. 105190, at 45 (1998) ("Section 512 does not require use of the notice and take-down procedure"); Fung, slip op. at 37-38; Tur v. YouTube, 2007 WL 1893635, at *3.
The DMCA in short does not place the entire burden on copyright holders to continually monitor all sites like YouTube for infringing activity and send an unending series of takedown notices, while the website owners intentionally profit from infringing activity they could control. Rather, the DMCA "balance[s] the interests" of copyright owners and service providers, H.R. Rep. No. 105-551(11), at 21, by imposing "strong incentives" for them "to cooperate to detect and deal with copyright infringement," S. Rep. No. 105-190, at 20; see id. at 8 (DMCA gives "copyright owners reasonable assurance . .. against massive piracy" over the Internet). As the Ninth Circuit cautioned about another limited Internet immunity, the Internet's "vast reach into
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the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164 n.15 (9th Cir. 2008) (en banc).
A. Defendants' Knowledge and Intent Defeat the DMCA Defense.
As shown in Point I above, Defendants operated YouTube with knowledge and awareness of, and intent to use, copyright infringement as the key to their success in attracting the largest user base of any Internet video site. That runs afoul of the DMCA, which is unavailable to a business that either has "actual knowledge" or is "aware of facts or circumstances from which infringing activity is apparent" and does not "expeditiously" take action to stop the infringement. 17 U.S.C. § 512(c)(1)(A). As the Fourth Circuit explained, "[t]he DMCA's protection of an innocent service provider disappears at the moment the service provider loses its innocence .... At that point, the Act shifts responsibility to the service provider to disable the infringing matter." ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001) (emphasis added); see also Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1200-01 (N.D. Cal. 2004) (DMCA only "limits . .. liability ... for incidental" - not intentional - "acts of copyright infringement").
As the undisputed facts set out above make clear, to say there were red flags everywhere on YouTube is a gross understatement. Defendants were not merely aware of red flags signaling rampant infringement; they rallied around them. Their own documents are contemporaneous admissions that they knew infringing videos generated 54 to 80 percent of the traffic on YouTube and that YouTube's business plan intentionally rested on such infringement-driven
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traffic. This is exactly the kind of intentional guilt the Supreme Court condemned in Grokster.
And Grokster liability inherently defeats the DMCA:
inducement liability [under Grokster] and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business. Here, as discussed supra, Defendants are liable for inducement [under Grokster]. There is no safe harbor for such conduct.
Fung, slip op. at 43; accord Usenet, 633 F. Supp. 2d at 142 ("if Defendants .. . encouraged or fostered . . . infringement, they would be ineligible for the DMCA's safe harbor provisions").20
Defendants nonetheless contend their knowledge and awareness that vast quantities of copyright works were being uploaded is irrelevant under the DMCA unless they had specific knowledge that a particular clip was infringing. Absent specific knowledge, they argue, YouTube and Google are free to willfully blind themselves to the vast dumping of copyrighted works on the site and just sit back and await DMCA takedown notices, while they intentionally profit from rampant infringement in the meantime.
This is not and rationally could not be the law. An entertainment business may not intentionally exploit copyrighted works to attract a large audience, but escape liability by closing its eyes to the specific infringing videos by which it implements that plan. Willful blindness does not negate Defendants' culpability. It intensifies it. As Judge Richard Posner explained for the Seventh Circuit in rejecting a "specific knowledge" theory for purposes of contributory infringement, "[wlillful blindness is knowledge, in copyright law ... as it is in the law
20 In Usenet, Judge Baer entered a default sanction on the DMCA defense and thus did not directly rule on the merits of the defense. See 633 F. Supp. 2d 142. However, his ruling that intentional fostering of infringement defeats the DMCA was a key part of the reasoning supporting the default, and therefore was an unambiguous holding in the case in full agreement with Fung, the only other case to address this issue under the DMCA.
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generally." In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (emphasis added); see also id. at 655 ("The [DMCA] does not abolish contributory infringement"); Fung, slip op. at 42. For defendants to prevail, they must have this Court read the concept of willful blindness out of copyright law and the DMCA statute even though it is applied universally, even in the criminal law, as a form of knowledge. E.g., Giordano v. United States, 32 F. Supp. 2d 640, 64142 (S.D.N.Y. 1999) (Stanton, J.) (enhancing sentence under knowledge standard because defendant "willfully blinded himself to such knowledge to such degree that he is chargeable with knowledge as a matter of law").
In addition to conflicting with case law, Defendants' position is contradicted by the plain language of the DMCA itself. The word "specific" (or similar language) does not appear as a limitation in § 512(c)(1)(A), and courts may not read such a limitation into a statute when Congress did not include it. See, e.g., Bridge v. Phoenix Bond & Indent. Co., 128 S. Ct. 2131, 2145 (2008). The statutory language expressly looks to whether Defendants either have "actual knowledge" or are "aware of facts and circumstances from which infringing activity" - not specific infringing videos - "is apparent." 17 U.S.C. § 512(c)(l)(A)(i), (ii) (emphasis added). "The term 'activity' is intended to mean activity using the material on the system or network" or "wrongful activity that is occurring at the site on the provider's system or network." S. Rep. 105-190, at 44. Thus, the defense is closed to a defendant that "becomes aware of a 'red flag' [and] takes no action." H.R. Rep. 105-551(11), at 53; see id. at 57 (explaining that parallel § 512(d) safe harbor is not available to a defendant who "turned a blind eye to 'red flags' of obvious infringement"); see Perfect 10 v. Cybernet, 213 F. Supp. 2d at 1177 (DMCA does not "endorse business practices that would encourage content providers to turn a blind eye to the source of massive copyright infringement while continuing to knowingly profit").
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In short, there is no "specific knowledge" requirement in the DMCA - particularly where Defendants intentionally foster infringement. Defendants' proposed "specific knowledge of infringement" requirement is the very same "error" that the Supreme Court rejected for purposes of secondary liability in Grokster, 545 U.S. at 934; see also Fung, slip op. at 36 (DMCA generally tracks standards for secondary liability). Congress did not intend to immunize the kind of extreme, mass culpability at issue in Grokster - and this case - by absolving intentional infringers as long as they remain willfully ignorant of the specific clips that are infringing.
As Columbia Law Professor Jane Ginsburg explains, under the DMCA "awareness triggers a proactive obligation to block access in order to qualify for the statutory immunity." Jane C. Ginsburg, Separating the Sony Sheep from the Grokster Goats, 50 Ariz. L. Rev. 577, 596 (2008) (emphasis added); see also II Paul Goldstein, Goldstein on Copyright § 8.3.2, at 8:41 (3d ed. 2009) (DMCA incorporates "inquiry notice" standard). Once Defendants were aware that YouTube was filled with infringing material (which was in fact their very plan), they were required to look into the matter further, not close their eyes to it. Their failure to identify which individual videos were infringing stemmed from their willful blindness policy of taking no action in the face of red flags, which only underscores their liability.
In their pre-motion letter to the Court, Defendants assert they have no obligation to take action in the face of red flags of infringement under the interpretation of the DMCA in Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1113 (9th Cir. 2007), and UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099, 1108 (CD. Cal. 2009). That is incorrect. Neither case involved the kind of intentional Grokster wrongdoing at issue here. As the Fung decision from the same Circuit makes clear, these cases certainly do not stand for the proposition that the DMCA shields such intentional conduct from infringement liability. Further, even in the
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absence of such intent, the DMCA places the burden on the service provider - not copyright
owners - to expeditiously remove material when faced with a red flag. 17 U.S.C.
§ 512(c)(l)(A)(ii), (iii) ("aware[ness] of facts or circumstances from which infringing activity is
apparent" triggers duty to "expeditiously remove, or disable access to, the material"); H.R. Rep.
105-551(11), at 53 (DMCA defense is forfeited when defendant "becomes aware of a 'red flag'
... and takes no action.") Thus, the DMCA does not sanction willful blindness. Especially after
Grokster, such a reading offends all sensible considerations of policy by placing the entire
responsibility to police a website not on the service provider that financially benefits from
massive infringement, but upon the content owners who are its victims. As Columbia Law
Professor Ginsburg explains:
CCBill notwithstanding, "apparent" does not mean "in fact illegal," nor does it mean "conclusively exists." Such an interpretation would allow the service provider to "turn a blind eye" to infringements because the provider could claim that the possibility that some files might be fair use means that infringement can never be "apparent" as to any file. By the same token, § 512(m)'s dispensation of service providers from "affirmatively seeking facts indicating infringing activity," should not entitle the service provider to remain militantly ignorant.
Ginsburg, supra, 50 Ariz. L. Rev. at 598 (footnotes omitted).
The contrary reading that Defendants extract from Perfect 10 v. CCBill and UMG v. Veoh cannot be reconciled with the DMCA's statutory language, which, as noted above, employs both actual and willful blindness variants of knowledge. It cannot be reconciled with the legislative history as described above, which openly embraces the concepts of willful blindness and "red flag" knowledge. It cannot be reconciled with the case law outside of the Ninth Circuit, including Judge Posner's decision for the Seventh Circuit in Aimster, the Fourth Circuit in ALS Scan, this Court in Usenet, and the Central District of California in Fung. It cannot be reconciled with the scholarly recognition that the DMCA imposes "a proactive obligation" to inquire and an
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"inquiry notice" standard. And it cannot be reconciled with Grokster's condemnation of businesses that are intentionally built on infringement while trying to hide behind their willful ignorance of particular infringing acts. Any such reading offends all sensible considerations of policy, for it places the responsibility to police a website not on the service provider that financially benefits from massive infringement, but upon the content owners who are the victims.
The DMCA struck a balance whereby a service provider, armed with actual or red flag knowledge of substantive illicit activity on the site, must inquire further and act to clean up the site. It is for that reason that both Viacom individually and the MPAA on behalf of the film industry generally offered to cooperate with YouTube and Google to assist in identifying illegal videos and adopt procedures for blocking illegal uploads - overtures of shared responsibility and cooperation rebuffed by Google and YouTube until long after this lawsuit was filed. Supra at 18-20. Defendants chose to remain willfully blind. That is their undoing under the DMCA.
Because Defendants were well aware of and even intended to facilitate the rampant infringement on YouTube, they forfeited the protection of the DMCA unless they "act[ed] expeditiously to remove, or disable access to, the material." 17 U.S.C. § 512(c)(l)(A)(iii). They did not meet this requirement by idly waiting for copyright owners to send takedown notices, and only then removing the specific infringing videos identified in such notices. An entirely different prong of § 512(c) requires a service provider to remove infringing material in response to takedown notices. Id. § 512(c)(1)(C). The duty to remove infringing material based on knowledge or awareness is an independent and distinct requirement of the DMCA. Id. § 512(c)(1)(A). That requirement would be completely meaningless if it were only triggered by takedown notices already covered by § 512(c)(1)(C). The legislative history confirms what is plain from the structure of the statute:
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A service provider wishing to benefit from the limitation on liability under subsection (c) must 'take down' or disable access to infringing material residing on its system or network of which it has actual knowledge or that meets the 'red flag' test, even if the copyright owner or its agent does not notify it of a claimed infringement.
S. Rep. 105-190, at 45 (emphasis added); see H.R. Rep. 105-551(11), at 54 (same).
Google and YouTube made no effort to do this until May 2008, when they finally broadly
used filtering technology to block clips that infringe Viacom's copyrights. Before that,
Defendants refused to remove "the copyright infringement stuff unless they first received a
takedown notice for a specific video. SUF Iff 38, 189, 220. Massive infringement would
thereby be maintained on their site as a draw to viewers and advertisers. Supra at 8-9. That
violates § 512(c)(l)(A)'s requirement to remove infringing material triggered by knowledge or
awareness of infringing activity. Defendants cannot take refuge in the DMCA.
B. Defendants' Direct Financial Benefit and Right and Ability to Control Infringement Defeat the DMCA Defense.
Defendants also fall outside the DMCA because they "receive a financial benefit directly
attributable to the infringing activity" and have "the right and ability to control such activity."
17 U.S.C. § 512(c)(1)(B). This prong of the DMCA tracks the traditional standard for common
law vicarious copyright liability. CCBill, 488 F.3d at 1117; see Shapiro, 316 F.2d at 307. And
where, as here, "Congress uses terms that have accumulated settled meaning under common law,
a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the
established meaning of these terms." Neder v. United States, 527 U.S. 1, 21 (1999) (quotation
marks omitted). Thus, the standard for this prong of the DMCA is the same as for vicarious
liability. CCBill, 488 F.3d at 1117; Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688,
704 (D. Md. 2001), aff'd, 373 F.3d 544 (4th Cir. 2004); see also Fung, slip op. at 36 (DMCA
generally incorporates standards for secondary copyright liability).
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As shown above in Point II, Defendants are liable for the infringement on YouTube under the common law of vicarious copyright liability. Therefore, under the plain language of § 512(c)(1)(B) incorporating that standard, Defendants cannot use the DMCA to escape liability. They could have curtailed the infringement from which they were profiting, but succumbed to the lure of immediate riches. The DMCA does not immunize such conduct.
Defendants could evade that conclusion only if direct financial benefit and right and ability to control meant one thing in the common law and another under the DMCA. No such argument is possible, however, because the Supreme Court has established a high hurdle for overcoming the presumption that statutory language incorporates settled common law meanings: statutory terms with accumulated common law meaning "must" be read to incorporate that meaning - the only exception being if the statute "dictates" otherwise. Neder, 527 U.S. at 21.
That defeats any perverse attempt to distort the DMCA to immunize conduct that would otherwise incur common law vicarious liability, for nothing in the DMCA "dictates" departure from the common law. First, with respect to the direct financial interest prong, the cases expressly and unanimously hold that the "draw" standard applies in the same way under the DMCA as under the common law. E.g., CCBill, 488 F.3d at 1117 ("we hold that 'direct financial benefit' [in the DMCA] should be interpreted consistent with the similarly-worded common law standard for vicarious copyright liability," and therefore that "the relevant inquiry is whether the infringing activity constitutes a draw for subscribers") (quotation marks omitted).
Moreover, as required by Neder, courts have also recognized that the "right and ability to control" element of the DMCA must "be interpreted consistently with common law." Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1150 (N.D. Cal. 2008). For example, in Fung, the Court granted summary judgment due to defendant's right and ability to control under
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the DMCA by applying the control standard for vicarious liability, under which "the 'ability to block infringers' access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise.'" Fung, slip op. at 39 n.27 (quoting Napster, 239 F.3d at 1023). Similarly, in prior litigation against YouTube, the court held that YouTube would have the right and ability to control under the DMCA if the record showed that it had "the technical capabilities needed to detect and prescreen allegedly infringing videotapes." Tur v. YouTube, 2007 WL 1893635, at *3. That is the case here. The undisputed facts show that YouTube and Google have both the right to block access for any reason, and the practical ability to curtail infringement. They thus have "the right and ability to control." Supra Point II.21
Despite the Neder rule, other decisions have suggested that the control prong of the DMCA should be different from the control prong of vicarious liability - without ever explaining exactly what "the right and ability control" means under the DMCA. E.g., UMG, 665 F. Supp. 2d at 1113. UMG reasoned that the DMCA "dictate[s] a departure from the common law standard" because: (1) the DMCA presupposes that a service provider can terminate repeat infringers and remove infringing content in response to takedown notices; and (2) 17 U.S.C. § 512(m)(l) provides that "[n]othing in this section shall be construed to condition the applicability of subsections (a) through (d) on ... a service provider monitoring its service or affirmatively seeking facts indicating infringing activity." 665 F. Supp. 2d at 1113-14.
Neither reason permits departure from the common law standard for vicarious liability. First, the DMCA merely presupposes the ability to remove infringing material in response to takedown notices, see 17 U.S.C. § 512(c)(1)(C), which is different from the more pervasive
21 The Tur court denied summary judgment against YouTube on the record there because no discovery had been taken to show that YouTube had such practical ability. 2007 WL 1893635, at *3-*4. In contrast, the extensive record here amply demonstrates practical ability.
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control standard for vicarious liability turning on whether the defendant has reserved the right to remove material it does not approve of "for any reason whatsoever," Napster, 239 F.3d at 1023. Because the control standard for vicarious liability is not redundant or contradictory under the DMCA, the statute does not "dictate" departure from the settled common law meaning.
Nor does § 512(m) "dictate" such a departure. Far from intending to override the common law standard, Congress made clear that notwithstanding § 512(m), the DMCA's "'right and ability to control' language ... codifies the second element of vicarious liability." Ff.R. Rep. 105-551(1), at 26 (emphasis added). UMG cavalierly dismissed this legislative history because it related to an earlier version of the DMCA. UMG, 665 F. Supp. 2d at 1115-16. However, that earlier version contained the same two provisions at issue here: the "right and ability to control" language, and the exact language that was ultimately enacted in § 512(m) (with changes only to the subsection references).22 Since Congress intended to codify the common law standard in a version of the DMCA that included the same language that was eventually enacted in § 512(m), it is absurd to say that § 512(m) "dictates" departure from that common law standard.
Moreover, UMG's reading of § 512(m) is so sweeping that it deprives "the right and ability to control" of all meaning, whether under the common law standard or any other conceivable interpretation of those words. When a court perceives some tension between two statutory provisions, its duty is not to read one so broadly that it effectively repeals the other. It is to harmonize the two. E.g., Watt v. Alaska, 451 U.S. 259, 266-67 (1981). That is especially
22 Compare 17 U.S.C. § 512(m)(l) ("Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on ... a service provider monitoring its service or affirmatively seeking facts indicating infringing activity"), with H.R. Rep. 105-551(1), at 8 (language of earlier bill: "Nothing in subsection (a) shall be construed to condition the applicability of subsection (a) on a provider . . . monitoring its service or affirmatively seeking facts indicating infringing activity").
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true when the provisions were enacted together in the same Act. E.g., U.S. West Commc 'ns., Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir. 2000). And in resolving the tension between two provisions, a court should adopt a reading consistent with the objects of the statutory scheme as a whole. E.g., Frank G. v. Bd. ofEduc. of Hyde Park, 459 F.3d 356, 371 (2d Cir. 2006).
Here, the meaning of "right and ability to control" in § 512(c)(1)(B) is clear. Congress's adoption of the common law terminology, the legislative history, and the plain meaning of the words "right and ability to control" all confirm that this language in the DMCA must encompass situations like here, where Defendants in fact have both the legal right and the practical ability to control infringement on the YouTube website.
This plain understanding of "right and ability" is readily harmonized with § 512(m). The title of § 512(m) is "Protection of Privacy," and the provision "is designed to protect the privacy of Internet users." H.R. Rep. 105-551(11), at 64 (referring to § 512(m) as § 512(/)). Given the ambiguity of the word "monitor" in § 512(m) and the need to harmonize it with § 512(c)(1)(B), Congress's purpose of protecting privacy must inform § 512(m)'s interpretation. See Brotherhood of R.R. Trainmen v. Bait. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947) (headings should be used to "shed light on some ambiguous word or phrase" in statute); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12B09[B], at 12B-99 (2009) ("the caption of [§ 512(m)] reads 'Protection of Privacy' .. . [and] courts should ... bear it in mind when applying Section 512"). As the caption makes clear, Congress did not want to force service providers to intrusively "monitor" private materials on their system, such as users' emails. But
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the infringing videos on YouTube are offered by uploaders for the whole world to see. No
privacy interest is affected by YouTube's right and ability to control public infringement.23
It would defy logic to conclude that Defendants lacked the "right and ability to control"
infringement under the DMCA when, as a matter of undisputed fact, they had both the legal right
and the practical ability to do so. Indeed, the undisputed facts here negate the DMCA defense
under any reading. Defendants actually implemented Audible Magic fingerprinting technology
to control infringement for favored business partners, but when doing so, they deliberately kept
up a large number of videos that infringe Viacom's copyrights, based on their calculation that the
risk of litigation was outweighed by the reward of drawing users to the site. Supra at 35-36.
That kind of conscious toleration of known infringement forfeits the DMCA defense under any
conceivable reading of congressional intent.
C. The Infringement on YouTube Does Not Result from the Specified Core Internet Functions to Which The DMCA Applies.
Defendants fall outside the DMCA for an additional reason: their infringement does not result from providing the specified core Internet functions covered by the defense. The DMCA is very specific about the four functions it covers, 17 U.S.C. § 512(a)-(d). Defendants' liability does not arise from these specific functions. In particular, their liability is not "by reason of the
23 In addition, § 512(m) only provides that monitoring should not be treated as a free-standing "condition" of the safe harbor. That is not the case under the common law vicarious liability standard, because the right and ability to control is not a stand-alone condition of liability, but an obligation that arises when it is paired with financial gain, that is when a service provider has a direct financial interest. Grokster, 545 U.S. at 939 (holding that even though defendants "lacked an independent duty to monitor their users' activity," "failure to develop filtering tools" is "factor" for imposing liability) (emphasis added). And the "right and ability" to control infringement is not the same as "monitoring" under § 512(m); filtering and blocking uploads before they hit the site is not the same as monitoring users' viewing of videos on the site. In sum, § 512(m) does not trump incorporation of the vicarious liability standard in § 512(c)(1)(B).
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storage at the direction of a user" of infringing material under § 512(c).24 YouTube is not a storage or web hosting service. It is a media and entertainment business no different from a TV station - except for its lack of respect for copyright law.
"Storage" is not defined in the DMCA and therefore has its ordinary meaning. See, e.g., Crawford v. Metro. Gov't of Nashville, 129 S. Ct. 846, 850 (2009). In the computer context, to "store" means to "record (information) in an electronic device (as a computer) from which the data can be obtained as needed." Webster's Third New International Dictionary 2252 (1986). Accordingly, the legislative history indicates that storage covers "providing server space for a user's web site, for a chatroom, or other forum in which material may be posted at the direction of a users." H.R. Rep. 105-551, at 53 (emphasis added). This example distinguishes two kinds of businesses. The first is the purely passive business of "providing server space" (also known as web hosting) to others for their operation of websites. Id.; see The New Oxford American Dictionary 1903 (2d ed. 2005) ("Web hosting": "the activity or business of providing storage space and access for Web sites"). The other is the "user's" business that employs the server space to operate a "web site ... in which material may be posted at the direction of a user." H.R.
24 Defendants' conduct also does not fall within the functions covered by subsections (a), (b) or (d). Defendants do not come within the § 512(a) safe harbor for transmission, because they do not meet the strict definition of a "service provider" for that subsection, see 17 U.S.C. § 512(k)(l)(A), which is limited to those who "play[] the role of a 'conduit' for the communications of others," like a common carrier or telecommunications company. H.R. Rep. 105-551(11), at 51. They also do not come within the § 512(b) safe harbor for system caching, because it applies only where one user requests material from another user, and the intermediate service provider that carries the transmission then makes an "intermediate and temporary" copy in the course of the transmission, § 512(b)(l)(A)-(C); see H.R. Rep. 105-551 (II), at 52. Finally, Defendants do not come within the § 512(d) safe harbor for "referring or linking" to infringing material on other websites, because Defendants' core infringing conduct of making and publicly performing multiple copies of copyrighted videos and thumbnails takes place on the YouTube site itself. See H.R. Rep. 105-551(11), at 51 (explaining that § 512(d) applies only if a service provider "lacks actual knowledge of infringement on the other site''') (emphasis added).
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Rep. 105-551(11), at 53. The legislative history makes clear that "storage" applies only to the first kind of business - "providing server space" - not to operation of the "user's web site." As Columbia Professor Ginsburg explains: "The examples of service providers given in the House Report consist entirely of enterprises who provide 'space' for third-party websites and fora, not the operators of the websites themselves." Ginsburg, supra, 50 Ariz. L. Rev. at 594.
That reflects the DMCA's fundamental purpose. The legislative history explains: "In the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability. For example, service providers must make ... electronic copies ... in order to host World Wide Web sites." S. Rep. 105-190, at 8 (emphasis added). Thus, § 512(c) is intended to protect services like web hosts that passively provide server storage as an empty vessel for someone else's websites or other activities. It does not protect companies that actively operate the websites as online entertainment centers. See Fung, slip op. 38 n. 26 (only "passive ... storage of infringing materials" is covered by § 512(c)).
That is further confirmed by § 512(c)'s language limiting the safe harbor to "infringement of copyright by reason of the storage at the direction of a user." 17 U.S.C. § 512(c) (emphasis added). This language requires a tight nexus, not merely any kind of loose connection. As the Supreme Court has made clear in interpreting other statutes, "by reason of requires proximate cause, not mere but-for causation. See Holmes v. Sees. Investor Protection Corp., 503 U.S. 258, 263-64 (1992); Associated Gen. Contractors of Cal, Inc. v. California Council of Carpenters, 459 U.S. 519, 529-30 (1983). Similarly, "infringement by reason of the
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storage at the direction of a user" in § 512(c) requires that storage at the direction of the user be the proximate cause of infringement, not merely one of many but-for causes.25
Defendants do not qualify for the § 512(c) safe harbor because their copyright infringement results not from web hosting, but from operating YouTube as a "consumer media company." SUF f 15. YouTube's entire business is predicated on the public performance of videos - just like a television station - not on the storage of videos. A true storage service such as a "web host, like a delivery service or phone company, is an intermediary and normally is indifferent to the content of what it transmits." Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003). In stark contrast, YouTube is a "consumer media company" that uses content to attract viewers to whom it shows advertising. SUF TC! 15, 44, 55, 230-36. As their emails indicate, Defendants care intensely about which videos YouTube has available and how they are presented, because that is how they lured an audience and advertising dollars. Supra at 5-8.
To that end, Defendants engage in an array of directly and secondarily infringing activities after users initially submit videos for upload, summarized supra, Point III.A. Those activities are neither limited to storage nor performed at the direction of the uploading users. Defendants make multiple copies of videos without any request by uploading users. SUF TCI 315-16, 320-23, 330. Defendants publicly perform and distribute videos on watch pages designed by Defendants in order to attract advertising revenue pursuant to advertising practices and deals that are determined, negotiated and priced by Defendants, not their users. Supra at 2925 The limited scope of § 512(c) is also indicated by comparison with the other § 512 safe harbors, which apply only to specified basic Internet functions, namely transmission, system caching, and indexing. 17 U.S.C. § 512(a), (b), (d). The DMCA itself explicitly states that each safe harbor applies only to the specific function described in that subsection: "Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section." 17 U.S.C. § 512(n) (emphasis added).
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30. Defendants, not the uploading users, decide what other videos will be suggested to users as "related" to a video being viewed on any given watch page. SUF f 334. The uploading user also has no say whether and how Defendants place ads on the home, search results, and browse pages throughout the rest of the YouTube site, which is organized and includes functions like search that Defendants, not their users, create and continually change to maximize the amount of time revenue-generating viewers surf YouTube.
Most tellingly, Defendants negotiated distribution deals purporting to grant licenses from YouTube to third parties like Apple and Verizon Wireless authorizing performance of YouTube's library of videos - including infringing videos - on the third parties' platforms. To carry out these deals, Defendants make and perform ever more copies of infringing videos, often months or years after the videos were first uploaded by users. SUF T( 330. Copying and licensing infringing videos on Defendants' own initiative for distribution over third-party platforms is not "storage at the direction of a user." As this example drives home, Defendants are taking material submitted by users and exploiting it for their own purposes, such that a "majority of functions .. . remain outside of the safe harbor." CCBill, 488 F.3d at 1117.
Although two courts addressing the Veoh video website interpreted "storage" more broadly, their readings are not persuasive and, in any event, do not help Google and YouTube. The Veoh courts read "storage" to cover any "automatic" action performed by a service provider's computer systems that "facilitates access" to user-uploaded content. See Io, 586 F. Supp. 2d at 1147; UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1086 (CD. Cal. 2008). But, as explained supra, at 60-61, the DMCA expressly states that § 512(c) covers only infringement "by reasons of the specific function of storage, not infringement resulting from other functions. And even if § 512(c) did apply to other automatic functions in response to
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user commands - and it does not - that would not help Defendants, because much of their infringing conduct is performed without any user input at all. For example, Defendants themselves initiated the copying and distribution required to carry out the third-party platform deals they negotiated. YouTube and Google never sought to operate a mere storage or web hosting service. They were seeking to build a media entertainment empire comparable to other major television and film distribution outlets - and did just that. SUF f 94 ("we should be comparing ourselves to, say, abc/fox/whatever"). They are therefore ineligible for the § 512 defense.
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CONCLUSION
By: /s/ Stuart J. Baskin_
Stuart J. Baskin (No. SB-9936) John Gueli (No. JG-8427) Kirsten Nelson Cunha (No. KN-0283) SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179
Bv: /s/Paul M. Smith_
Paul M. Smith (No. PS-2362) William M. Hohengarten (No. WH-5233) Scott B. Wilkens (pro hac vice) Matthew S. Hellman (pro hac vice) JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066
Susan J. Kohlmann (No. SK-1855) JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Telephone: (212)891-1690 Facsimile: (212) 891-1699
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Viacom's motion for partial summary judgment should be granted.
Respectfully submitted,