throbber
Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 1 of 24
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`VIACOM INTERNATIONAL INC., COMEDY PARTNERS,
`COllliTRY MUSIC TELEVISION, INC., PA~MOUNT
`PICTURES CORPORATION, and BLACK
`ENTERTAINMENT TELEVISION LLC,
`
`Plaintiffs,
`
`against-
`
`07
`
`. 2103 (LLS)
`
`OPINION
`
`INC., YOUTUBE, LLC, and
`YOUTUBE,
`GOOGLE INC.,
`
`Defendants.
`
`x
`
`Defendants
`
`having
`
`renewed
`
`ir motion
`
`for
`
`summary
`
`judgment,
`
`s Opinion responds to the Apri 1 5, 2012 direction
`
`of the Court of Appeals, Viacom Int'l Inc. v. YouTube
`
`Inc., 676
`
`F.3d 19, 42 (2d Cir. 2012),
`
`ng to
`
`ef the following issues,
`. allow the parties to
`with a view to permitting renewed motions for summary
`judgment as soon as practicable:
`
`record, YouTube had
`the current
`on
`(A) Whether,
`knowledge or awareness of any specific infri
`s
`(including any clips in suit not express
`noted in
`this opinion) ;
`
`current record, YouTube willfully
`(B) Whether, on
`itself to specific infringements;
`
`(C) Whether YouTube had
`control"
`infringing act
`512 (c) (1) (B) i and
`
`the "right and ability to
`ty wi thin the meaning of §
`
`1
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 2 of 24
`
`t were syndicated to a
`(D) Whether any clips in-
`third party and,
`if so, whet
`such syndication
`occurred "by reason of t
`storage at the direct
`of
`user" within the meaning of § 512 (c) (1), so that
`YouTube may claim the protection of the § 512(c)
`harbor.
`
`Familiari
`
`with
`
`the COUyt of Appeals opinion,
`
`and my
`
`opinion at 718 F. Supp. 2d 514 (S.D.N.Y. 2010) is assumed.
`
`(A)
`
`WHETHER, ON THE CURRENT RECORD, YOUTUBE HAD KNOWLEDGE
`OR AWARENESS OF ANY SPECIFIC INFRI~GEMENTS (INCLUDING
`ANY CLIPS-IN SUIT ~OT EXPRESSLY NOTED IN THIS OPINIO~)
`
`Pursuant
`
`to
`
`the first
`
`item,
`
`I
`
`requested
`
`the
`
`ies to
`
`report,
`
`for each cl
`
`in-
`
`t,
`
`"what pYecise
`
`infoymation was
`
`given
`
`to or Yeasonably apparent
`
`to YouTube
`
`identi
`
`the
`
`locat
`
`or site of the infri
`
`ng matter?"
`
`(Tr. Oct. 12, 2012,
`
`p. 29) YouTube submitted a list of 63,060 clips in-
`
`t, claimed
`
`it
`
`nevey
`
`yeceived
`
`notices
`
`of
`
`any
`
`of
`
`those
`
`s, and challenged
`
`aintiffs to fill in the blanks
`
`specifyi
`
`how they claim such notice was given.
`
`In its response, Viacom stated that
`
`It has now become clear that nei ther side possesses
`the kind of evidence that would allow a clip by-cl
`assessment of
`knowl
`Defendants apparent
`are unable to say which clips-in-
`t
`they knew about
`and which
`they did not
`(which is hardly surprising
`
`:Viacom's Jan. 18, 2013 !'1em. Of Law In Opp.
`J. ("Viacom Opp.").
`
`':0 Def.'s Renewed Mot. for Summ.
`
`2
`
`....
`
`.;., .,~--------
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 3 of 24
`
`given the volume of material at issue) and apparent
`lack
`ewing or other records
`that could establish
`these facts.
`(Viacom Opp. p. 8, fns omitted)
`
`Viacom recognizes
`
`"
`
`that
`
`acom has
`
`led to come
`
`forward with
`
`evidence establi
`
`ng YouTube I s
`
`knowl
`
`of
`
`specific cl
`
`in suit."
`
`(Viacom Opp. p. 9)
`
`That does not matter, Viacom says, because it is not
`
`Viacom's burden to prove notice.
`
`Viacom argues that YouTube
`
`claims the statutory safe harbor as a defense, and t
`
`fore has
`
`the burden of est
`
`ishing each element
`
`its affirmat
`
`defense,
`
`including lack of knowl
`
`or awareness
`
`Viacom's
`
`clips-in suit, and has not done so.
`
`Plaintiffs'
`
`thesis
`
`is
`
`st
`
`clearly and simply:
`
`"If there is no evidence allowing a
`
`jury to separate the cl
`
`-in suit that Defendants were aware of
`
`from those
`
`were not I
`
`there is no basis
`
`applying the
`
`sa
`
`harbor affirmat
`
`de
`
`to any of the cl
`
`II
`
`(Viacom
`
`Opp. p. 2)
`
`Plaintiffs elaborate (Viacom Opp. pp. 8 9):
`
`this Court's
`The Second Circuit vacated
`or
`actual
`knowl
`summary
`judgment
`regarding
`awareness because "a reasonable juror could conclude
`that YouTube
`had
`actual
`know 1
`of
`specific
`inf ng
`act
`ty, or was at least aware of facts or
`circumstances from which specific infringing act
`ty
`was
`Viacom, 676 F. 3d at 34.
`It remanded
`a further assessment of the evidence relating to
`whether this knowl
`extended to Viacom's clips-in
`sui t.
`Id.
`It has now become clear
`t neither side
`possesses
`the kind of evidence
`that would allow a
`clip by-cl
`assessment
`of
`actual
`knowl
`
`It
`
`3
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 4 of 24
`
`ips-
`ly are unable to say which
`Defendants
`(which
`suit they knew about and whi
`they did not
`is hardly surprising given the volume of material at
`issue) and apparently lack viewing records that could
`est
`ish
`these
`facts.
`It
`llows,
`given
`t
`appli
`e burden of proof, that they cannot claim the
`512(c)
`sa
`harbor-e
`ially
`in
`light
`of
`the
`uminous evidence showing
`that
`the Defendants had
`considerable knowl
`of the cl
`s on their website,
`including Viacom-owned mat
`al.
`
`The
`
`is
`
`ingenious, but
`
`its
`
`foundation
`
`is an
`
`anachronistic, pre Digit
`
`Millennium Copyright Act
`
`(DMCA) ,
`
`concept.
`
`Title
`
`II of
`
`the DMCA
`
`(the Online Copyright
`
`Infringement Li
`
`lity Limitation Act)2 was enacted because
`
`ce providers perform a useful
`
`function, but
`
`the great
`
`volume of works
`
`aced by outsiders on t
`
`ir platforms, of whose
`
`contents
`
`service provi
`
`were generally unaware, might
`
`well contain copyright-i
`
`ringing material which
`
`the service
`
`provider would mechanic
`
`ly "publi
`
`" thus ignorant
`
`incurring
`
`liabili
`
`r
`
`copyright
`
`law.
`
`The problem is cle
`
`illustrated on the record
`
`this case, whi
`
`establi
`
`s
`
`that
`
`"
`
`. site traffic on YouTube had soared to more than 1 billion
`
`ly video views, with more t
`
`24 hours of new video uploaded
`
`to the site every minute", 676 F.3d at 28; 718 F. Supp. 2d at
`
`518, and the natural consequence that no
`
`ce provider
`
`d
`
`possibly be aware of
`
`the contents of
`
`such video.
`
`To
`
`17 U s.c. § 512
`
`4
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 5 of 24
`
`encourage qualifi
`
`service provi
`
`rs, Congress
`
`in
`
`t
`
`DMCA
`
`established a "safe harbor n
`
`ect
`
`the se
`
`ce provider from
`
`monetary,
`
`unct
`
`or other
`
`table reI ief for i
`
`ngement
`
`of copyright in the course of se
`
`ce such as YouTube' s .
`
`The
`
`Act places the burden of notifying such service provi
`
`l
`
`ngements upon
`
`the copyright owner or
`
`s
`
`of
`
`It
`
`requires such notif
`
`ions of claimed infringements to be
`
`in
`
`writing
`
`with specified contents
`
`directs that deficient
`
`notificat
`
`shall not be considered
`
`dete
`
`ng whether a
`
`service provider has actual or constructive knowl
`
`Id. §
`
`(3) (B) (i) .
`
`As stated
`
`the Senate
`
`at pp. 46-47, House
`
`Report at 55 56
`
`see 718 F. Supp. 2d at 521)
`
`(c) (3) (A) (iii) requires that the copyright
`Subsection
`owner or its authorized agent provide
`the service
`provider with
`information
`reasonably sufficient
`to
`permit the service provider to identify and locate the
`allegedly
`inf
`ng material.
`An example of such
`ficient information would
`a copy or
`cription
`the
`legedly
`inf
`ing material and
`the URL
`of
`address of the location (
`page) which is all
`to
`conta
`the
`infringing mat
`al.
`The
`of this
`provision
`is
`to provide
`the service provider with
`adequate information to find
`address the allegedly
`ringing mat
`expeditiously.
`
`Viacom's argument
`
`that
`
`the volume of material and "the
`
`absence of record evidence that would allow a
`
`jury to decide
`
`which clips-in suit were specifical
`
`known to senior YouTube
`
`executives ll
`
`(Viacom Opp. pp. 9 10) combine to deprive YouTube of
`
`the statutory safe harbor, is extravagant.
`
`aintiffs'
`
`5
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 6 of 24
`
`assert, nei ther side can
`
`termine the presence or absence
`
`speci f ic infri
`
`s because of the volume of material,
`
`that
`
`merely demonstrates
`
`the
`
`sdom of
`
`the 1
`
`islative requirement
`
`that it be
`
`the owner of
`
`the copyright, or his agent, who
`
`identifies
`
`the
`
`infringement by giving
`
`the service provider
`
`notice.
`
`17 U.S.C.
`

`
`512 (c) (3) (A) .
`
`The system is entire
`
`workable: In 2007 Viacom it
`
`f gave such notice to YouTube of
`
`infringements by some 100, 000 vi
`
`s, which were taken down by
`
`YouTube by the next business day.
`
`See 718 F. Supp. 2d 514 at
`
`524.
`
`Thus,
`
`the burden of showing that YouTube knew or was aware
`
`of the specific infringements of the works in sui t cannot be
`
`shifted to YouTube
`
`to
`
`sprove.
`
`Congress has
`
`termined that
`
`the burden of identifying what must be taken down is to be on
`
`the
`
`copyright
`
`owner,
`
`a
`
`determination which
`
`s
`
`proven
`
`practicable in practice.
`
`aintiffs' acknowl
`
`that
`
`they
`
`lack "the kind of
`
`evidence that would allow a cl
`
`-by clip assessment of ac
`
`knowledge"
`
`(Viacom Opp. p. 8) suppl ies the answer to item
`
`(A)
`
`aintiffs lack proof that YouTube had knowl
`
`or awareness of
`
`any specific infringements of cl
`
`-in suit.
`
`So
`
`the
`
`case
`
`turns
`
`to whether
`
`there
`
`are
`
`substitute
`
`ents.
`
`6
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 7 of 24
`
`(B)
`
`WHETHER, ON THE CURRENT RECORDS, YOUTUBE WILLFULLY
`
`BLINDED ITSELF TO SPECIFIC INFRINGEMENTS
`
`
`In general,
`
`the
`
`law has
`
`long
`
`included
`
`the doctrine of
`
`"willful blindness. /I
`
`As
`
`the Court of Appeals st
`
`in this
`
`case (676 F.3d at 34-5)
`
`is
`
`--~~-=~------~~
`
`will
`principle
`"The
`y
`is
`to knowledge
`tantamount
`novel. u
`Inc., 600 F.3d 93,
`Inc. v.
`110 n.16
`NJ
`Cir.
`2010)
`(collect
`cases) i
`see In~e Aimster
`., 334 F.3d 643, 650
`(7th Cir. 2003)
`blindness
`is knowl
`in copyright law
`.
`is
`law
`ly.U).
`A person
`as it is
`the
`"will ful
`bl ind" or engages in "conscious avoidance"
`amounting to knowledge where the person "'was aware of
`a
`high probability of
`the
`fact
`in dispute
`and
`consciously avoi
`irming
`fact. '"
`United
`States v.
`na-Marshall,
`336 F.3d
`167,
`170
`2d
`Cir.2003)
`(quoting United States v. Rodri
`983
`2,
`F.2d
`455,
`458
`(2d Cir.1993));
`cf. Global Tech
`Inc. v. SEB S.A.,
`--U.S.---, 131 S. Ct.
`2060, 2070
`71, 179 L.
`. 2d 1167
`(2011)
`(applying the
`willful blindness doctrine
`in a
`ent
`inf ngement
`case). Writ
`in the trademark i
`ringement context,
`we have held that "[aJ service provi
`is not
`permi t ted will
`blindness. When it has reason to
`suspect
`users
`its service are
`infringing a
`protected mark, it may not sh
`ld itself from learning
`of the particular infri
`ng transactions by looking
`the other way." Tif
`,600 F.3d at 109.
`
`The Court recognized that:
`
`is explicit: DMCA safe harbor protection
`S12(m)

`tioned on affirmative monitoring by a
`cannot be
`service provider.
`For
`that
`reason,
`S12(m)
`is

`incompati
`e with a broad common
`law duty to monitor
`
`7
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 8 of 24
`
`out
`or otherwise
`awareness that
`
`l
`
`sed on
`ty
`ing act
`ingement may be occurring.
`
`Id. at 35. Nevertheless, willful blindness is not t
`
`same as
`
`an affirmative duty to monitor, and the Court held
`
`ibid.
`
`that
`
`ied,
`may be
`the willful blindness doct
`in appropriate circumstances, to demonstrate knowledge
`or awareness
`ific
`instances of
`ringement
`l
`under the DMCA.
`
`Applying
`
`t
`
`doctrine, however, requires at tent ion to its
`
`scope.
`
`In imputing knowl
`
`the will
`
`ly
`
`sregarded fact,
`
`one must not
`
`impute more knowledge
`
`than
`
`the fact conveyed.
`
`Under appropriate circumstances
`
`imputed knowledge
`
`the
`
`willful
`
`-avoided
`
`fact may
`
`impose
`
`a duty
`
`to make
`
`further
`
`inquiries
`
`that
`
`a
`
`reasonable person would make
`
`but
`
`that
`
`depends on the law governing the factual situation. As shown by
`
`Court of Appeals' discuss
`
`of "
`
`flags," under the DMCA,
`
`what disqualifies
`
`service provider
`
`from
`
`the DMCA's
`
`protection is blindness to "specific and identifiable instances
`
`of infringement."
`
`676 F.3d at 32.
`
`As the Court of Appeals held
`
`id. at 30-31)
`
`the basic
`that
`are persuaded
`In particular, we
`or awareness
`operation of § 512(c) requires knowl
`Under
`of
`specific
`infringing
`act
`ty.

`one does not
`512 (c) (1) (A), knowledge or awareness
`the provider
`disqual ify the service
`rather,
`t
`gains
`knowledge or
`awareness of
`infringing
`activity ret
`safe-harbor
`ection if it "acts
`expeditiously to
`remove, or disable access
`to,
`the
`material."
`17 U.S.C. § 512(c) (1) (A) (iii)
`Thus,
`nature of
`removal obI
`ion
`i tsel f contemplates
`
`8
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 9 of 24
`
`inf nging
`specific
`awareness
`or
`knowledge
`because expeditious removal is poss
`e only
`materi
`ce provider knows
`h parti
`arity which
`if the s
`to
`remove.
`I
`require expedit
`ems
`to
`removal
`in
`the absence of specific knowledge or
`awareness would be to mandate an amorphous
`igat
`to "t
`commercially reasonable steps" in response to
`a generalized awareness of infringement.
`Viacom Br.
`33.
`a view cannot be
`reconcil
`with
`the
`language
`of
`the
`statute,
`which
`requires
`"expeditious[]" action
`to
`remove or di
`e
`"the
`mate al" at
`issue.
`17 U.S.C.
`§ 512(c) (1)
`) (iii)
`(emphasis added) .
`
`Here,
`
`examples prof
`
`by
`
`aintiffs (to which they
`
`claim YouTube was willful
`
`blind) give at most information that
`
`infringements were
`
`occurring with part
`
`ar works,
`
`and
`
`occasi
`
`indications of promising areas to locate and remove
`
`specific locations of infringements are not supplied:
`
`at most, an area of search is identified,
`
`YouTube is le
`
`to
`
`find
`
`inf
`
`ing cl
`
`3
`
`As st
`
`in UMG
`
`-
`
`.........~~.-.------ ............--~-----
`
`v.
`
`Shelter
`
`tal Partners LLC, No. 10-55732, 2013 WL 1092793, at
`
`*12 (9th Cir. Mar. 14, 2013)
`
`("UMG 111/),
`
`that at
`in retrospect,
`parties agree,
`t
`Although
`times
`there was
`infringing material available on
`Veoh's services,
`the DMCA
`recognizes
`that service
`providers who do not
`locate
`remove
`infringing
`materials they
`not specifi
`ly know
`should not
`suffer
`loss of safe
`protection.
`
`locate the infringements
`Plaintiffs often suggest that YouTube can readi
`to do so.
`The Court
`by us
`its own identification tools.
`It had no
`of
`s explicit
`held that "YouTube cannot be excluded from
`the safe
`harbor by dint of a decision to restrict access to its proprietary search
`mechanisms. N
`676 F.3d at 41.
`
`9
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 10 of 24
`
`The Karim memorandum states
`
`infringing cl
`
`some
`
`well-known shows "can still be
`
`" but does not i
`
`ify the
`
`specific cl
`
`saw or where
`
`found
`
`them.
`
`Wilkens
`
`declaration
`
`tted by pIa
`
`iffs asserts that
`
`re were over
`
`450 such cl
`
`on YouTube at
`
`time! and
`
`some of
`
`them contai
`
`the infringing matter seen by Mr.
`
`m.
`
`To find
`
`them would
`
`re YouTube to locate and review over 450 clips.
`
`The DMCA excuses YouTube
`
`from doing
`
`that
`
`s
`
`Under
`

`
`512(m),
`
`in the appli
`
`e section of t
`
`DMCA shall be
`
`const
`
`to
`
`require
`
`!s "affirmat
`
`seeking
`
`facts
`
`indicating infringing activi
`
`"
`
`Mr. Karim!s memorandum
`
`s not tie his
`
`ervations to any
`
`specific clips.
`
`Application of
`
`the
`
`e of will
`
`bl
`
`ss to his memorandum thus does not
`
`e knowledge or
`
`awareness
`
`infringement
`
`specific cl
`
`suit! out of
`
`450
`
`1
`
`e candidates. Nor does any
`
`example tendered
`
`by
`
`aintiffs.
`
`As
`
`Court of
`
`s stated (676 F.3d at 34)
`
`in
`
`in suit are at issue
`current cl
`definition!
`Accordingly! we vacate
`the
`s
`litigation.
`and instruct
`District Court
`ing summary
`j
`to determine on remand whether any specific inf
`s
`of which YouTube
`knowledge or awareness correspond to
`the clips-in-suit in these actions.
`
`There
`
`lS no
`
`ng of willful
`
`indness
`
`to specific
`
`ingements of cl
`
`in suit.
`
`
`10
`
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 11 of 24
`
`(C)
`
`WHETHER YOU'::'UBE HAD THE "RIGHT AND ABILITY TO CON'::'ROL"
`
`INFRINGING ACTIVI'::'Y WITHIN THE MEANING OF § 512(c) (1) (B)
`
`
`servlce provi
`
`lS presumed by the DMCA to
`
`the
`
`ability to remove
`
`(or
`
`access to) material post
`
`on its
`
`website, and to exercise that function in its daily business,
`
`including removal of
`
`ringing mate
`
`in response to take-
`
`down notices Viacom,
`
`676 F.3d at 37)
`
`So
`
`the ability to
`
`"control
`
`infringing activity,"
`
`even without
`
`knowledge
`
`of
`
`speci ics, means "
`
`more"
`
`just ordinary power over
`
`what
`
`on the
`
`der's website (id. at 38).
`
`The Court
`
`of
`
`s perce
`
`two pointers toward what
`
`"something
`
`more" is (ibid.)
`
`e omitted) :
`
`...--~'------- ............. ---~------------------~------
`
`service
`a
`that
`found
`court has
`To date, only
`control
`ability
`to
`right
`provider had
`under § 512 (c) (1) (B) .
`In Perfect
`infringing act
`Ventures
`Inc., 213 F.
`2d
`10
`Inc. v.
`1146
`(C.D. Cal. 2002),
`the court found control where
`service
`insti tuted a moni toring program
`by which user websites rece
`"detailed instructions
`regard [ing]
`issues
`of
`1
`appearance,
`and
`content."
`Id. at 1173.
`service
`also
`forbade cert
`types of content and refused access to
`users who
`iled to comply with its instructions.
`Id.
`Similarly,
`inducement of copyright infr
`under
`Metro-Gol
`Studios
`Inc. v.
`Ltd. ,
`913,
`545 U.S.
`125 S. Ct. 2764,
`162 L. Ed.2d 781
`(2005), which
`"premises
`liability on purposeful,
`culpable expression and conduct," id. at 937, 125 S.
`Ct. 2764,
`also rise to
`the
`level of control
`under § 512 (c) (1) (B) . Both of these
`es involve
`a service
`der exert
`substantial influence on
`the act
`ties of users, without neces
`- or even
`
`11
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 12 of 24
`
`acqui
`frequently
`infringing activity.
`
`knowl
`
`of
`
`ific
`
`Ninth Ci
`
`t i n UMG 111,2013 WL 1092793, at *19,
`
`following Viacom, held that
`
`ability to control,"
`"
`in order to have
`"exert[]
`substantial
`t
`service
`provider must
`influence on the act
`of users."
`"Substantial
`t
`influence" may
`include,
`as
`the
`Second Circuit
`suggested, high levels of control over activities
`users, as
`t. Or it may
`lude purposeful
`conduct, as in Grokster.
`
`The concept
`
`is
`
`that
`
`a
`
`provider,
`
`even without
`
`knowledge of specific infringing activity, may so influence or
`
`partic
`
`e in that act
`
`ty, while gaining a financ
`
`benefit
`
`from it, as to lose the safe harbor.
`
`By its example of
`
`extreme Grokster case as what "might also rise to the I
`
`of
`
`control under § 512 (c) (1) (B)"
`
`(676 F.3d at 38), t
`
`Viacom Court
`
`of Appeals
`
`intact
`
`its
`
`"first
`
`and most
`
`important"
`
`determination
`
`(id. at 30)
`
`that
`
`the DMCA
`
`requires
`
`"actual
`
`knowledge or awareness
`
`facts or circumstances that indicate
`
`specific and
`
`identifiable
`
`instances
`
`infringement" before
`
`disqualifying a
`
`ce provider from
`
`t
`
`sa
`
`harbor
`
`id. at
`
`32)
`
`As quoted above,
`
`Ninth Circuit requires "high levels
`
`of control" over activities of users as
`
`in
`
`or
`
`"purposeful conduct" as in Grokster.
`
`It found those elements in
`
`Columbia Indus. v.
`
`No. 10 55946, 2013 WL 1174151, at *20
`
`(9th Cir. Mar. 21, 2013), where the record was
`
`12
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 13 of 24
`
`replete
`
`assistance
`fi
`onto DVD.
`
`th instances of Fung act
`ly encouraging
`by urging his users to both upload and
`particular
`works,
`providing
`to
`those
`watch copyrighted
`to
`helping his
`copyrighted materi
`
`In
`
`ce
`
`213 F. Supp. 2d at 1170, 1173, 1182,
`
`der presented both its
`
`f
`
`and its users as one
`
`affiliat
`
`network of websi tes
`
`a "unified brand,"
`
`it
`
`users "extensive
`
`ce" and "detailed instructions"
`
`on content, prescreening submissions and refusing access to users
`
`"until
`
`comply with its
`
`ctates" "to control the quali
`
`of
`
`,
`
`/I
`
`The court
`
`d it thus partic
`
`users'
`
`ringing
`
`act
`
`exercised
`
`the
`
`its
`
`site
`
`"
`
`ng more"
`
`id. at 1181 1182)
`
`But the governing
`
`e must remain clear:
`
`of
`
`prevalence of infring
`
`ty, and welcoming it,
`
`s not
`
`its
`
`f forfei t
`
`the safe
`
`To forfei t
`
`that,
`
`provider
`
`must influence or partic
`
`in the infringement.
`
`Thus, where the
`
`ce provider's influence
`
`s not "take
`
`form of prescreening content, rendering ext ens
`
`advice to
`
`users regarding content
`
`ting user content," Wolk v. Kodak
`
`Network
`
`Inc. , 840 F. Supp. 2d 724, 748
`
`(S.D.N.Y. 2012),
`
`or where the se
`
`ce
`
`r lists items for sale by users but
`
`"is not actively
`
`invo
`
`in
`
`the
`
`listing,
`
`ng,
`
`sale and
`
`livery of any item, "
`
`ckson
`
`v.
`
`Inc. , 165 F. Supp. 2d
`
`13
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 14 of 24
`
`1082, 1094
`
`(C.D. Cal. 2001), and "does not preview
`
`products
`
`to
`
`ir listing, does not edit the product de
`
`ions,
`
`does not suggest prices, or otherwise
`
`involve itself
`
`the
`
`sale," Corbis
`
`------------~~------------------~-------
`
`v. Amazon.com
`
`Inc., 351 F. Supp. 2d 1090,
`
`1110
`
`(W.D. Wash.
`
`2004) ,
`
`its
`
`influence
`
`on users
`
`is not
`
`partic
`
`ion in their infringing acti vi
`
`and
`
`s not amount
`
`to the
`
`red "control" beyond
`
`normal abili
`
`of
`
`service provi
`
`r to
`
`ide what appears on its platform.
`
`The plaintiffs claim that the "something more"
`
`this case
`
`is establi
`
`by YouTube's
`
`llingness that its service be used
`
`to infringe, and by YouTube 's exercise of "ul t
`
`e editorial
`
`judgment and control over the content
`
`lable on the site"
`
`(Viacom Opp. p. 42)/ as shown by
`
`, s
`
`cisions to remove
`
`some but not a 1 infri
`
`ng material, by its ef
`
`s to
`
`ze
`
`and faci itate search of
`
`appearing on the site,
`
`by its
`
`ement of
`
`rules prohibiting,
`
`pornographic
`
`content.
`
`The plaintiffs begin with evidence
`
`to
`
`its
`
`sition, YouTube reached internal
`
`cisions which i
`
`ringing
`
`materials to i
`
`ify
`
`remove from the site 4 to avoid looking
`
`4 YouTube employees used various methods to manually review submissions for
`infringements (see RSUF ~~ 63-66, 126 127, 269, 272-273). There is
`no evidence
`that any YouTube
`emp
`viewed and failed
`to
`remove any
`particular infringing clip in suit while conducting such reviews (see Part A
`above at p. 6).
`
`14
`
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 15 of 24
`
`"Ii
`
`a dumping ground
`
`copyrighted st
`
`fff
`
`and
`
`"becomi
`
`another
`
`boys or stupi
`
`"
`
`(E-mails
`
`Jawed Karim,
`
`Steve
`
`, and Chad Hurley
`
`Sept. 3, 2005) or "Bittorrent"
`
`(E-mail
`
`from Chad Hurley to Steve Chen and
`
`Karim dated
`
`June 26, 2005), without ri
`
`drops
`
`in "site traffic and
`
`virality"
`
`(E mails between Jawed Karim, Steve Chen, and Chad
`
`Hurley
`
`3, 2005)
`
`YouTube's
`
`decided
`
`to "take down whole movies, ff "entire TV shows,
`
`like an entire
`
`family guy
`
`sode"
`
`(id.), "South Park, and full I
`
`anime
`
`episodes," "nudity/porn and any death videos," but to leave up
`
`"music
`
`"
`
`"news programs,"
`
`(E-mail
`
`from Brent Hurley to
`
`Cuong Do dat
`
`Nov. 24, 2005),
`
`"
`
`s, commercials"
`
`(E-mails
`
`between Jawed
`
`Steve Chen, and Chad Hurley dated
`
`3,
`
`2005), and "
`
`cl ips (Conan, Leno, etc.)" (E-
`
`I from Jawed
`
`Karim
`
`to Steve Chen dated
`
`1,
`
`2005) .
`
`then
`
`"disabled communi
`
`flagging for
`
`"
`
`(Viacom Opp. at
`
`41), declined to develop a
`
`feature "to send automated email
`
`alerts to
`
`owners when illegal content was
`
`oaded"
`
`(Viacom 2010 Br. at 11),
`
`and
`
`ly stopped
`
`arly
`
`monitoring its site for infringements,
`
`iding instead "to keep
`
`substantially all infringing videos on the si te as a draw to
`
`users, unless and until YouTube rece
`
`a
`
`'takedown notice'
`
`from
`
`the
`
`actual
`
`copyright
`
`owner
`
`identifying
`
`a
`
`specific
`
`15
`
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 16 of 24
`
`infringing clip by URL and demanding its removal from the site R
`
`id. at 7).
`
`Plaintiffs further claim
`
`that Google
`
`"adopt
`
`YouTube's
`
`copyright policy"
`
`(Viacom Opp. p. 41) of primarily waiting to
`
`receive takedown notices before removing infringing materi
`
`5 in
`
`order to "\ grow playbacks
`
`to 1b/day
`
`[one
`
`Ilion per day]' If
`
`(Viacom 2010 Br. at p. 17), gain advertising revenue, and enter
`
`licensing agreements on
`
`favorable
`
`terms with content owners
`
`including Viacom.
`
`For certain owners
`
`(including Viacom),
`
`the
`
`defendants streamlined
`
`the notification process by providing
`
`access to YouTube's Content Verification Program, which "allowed
`
`content owners to check boxes to
`
`signate individual videos for
`
`take down"
`
`(RSUF ~~ 214-215).
`
`But YouTube would only use
`
`digit
`
`fingerprinting
`
`software, which automatically blocks
`
`submissions matching "reference
`
`abases of
`
`fingerprints of
`
`copyrighted works ll prior to their becoming available for publ
`
`view
`
`~~ 283, 285),
`
`to filter "videos infringing the works
`
`5 Plaintiffs claim that the defendants "manually screened narrow subsets of
`YouTube videos" for infringing material
`(RSUF ~ 273), i. e., videos uploaded
`by applicants to and participants in YouTube's Director Program and its User
`Partner Program.
`Both programs offered certain perquisites
`to original
`content creators, and YouTube appears to have monitored such clips to ensure
`that participants were in fact uploading their own
`content and not
`content created by others
`.).
`YouTube also monitored its site for
`infringements us
`hash-based identification technology, which
`ffs
`claim could only remove clips "exactly identical in every respect to a video
`clips that YouTube had previous
`removed pursuant to a take down notice," and
`thus blocked only a limited subset of infringing clips
`id. at ~ 274).
`
`16
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 17 of 24
`
`content owners who
`
`agreed
`
`to
`
`licensing and
`
`revenue
`
`sharing deals with YouTube" 6
`
`(id.
`
`,
`
`295)
`
`Thus, plaintiffs
`
`conclude,
`
`ess
`
`they were
`
`awarded
`
`a
`
`content
`
`license,
`
`Defendants re
`
`to prevent illegal upl
`
`ng and imposed the
`
`entire burden on Viacom and
`
`other studios to search
`
`24/7 for infri
`
`clips" (Viacom 2010 Br. at p. 28).
`
`That evi
`
`proves
`
`YouTube
`
`business
`
`reasons
`
`much of
`
`"burden on Viacom and the other s
`
`s
`
`to
`
`search YouTube 24/7 for inf
`
`ing clips." That is where it lies
`
`the safe
`
`(Viacom, 676 F.3d at 41) :
`
`l
`
`that safe
`provides
`§ 512(
`noted,
`As previous
`cannot
`conditioned on "a service
`harbor protect
`ng
`its
`ce or affirmatively
`der moni
`indicating
`nging acti vi
`except
`seeking facts
`to
`the extent consistent
`a standard
`technical
`measure compl
`ng with
`the
`sions of
`ion
`).
`(i).1f 17 U.S.C.
`512(m) (1)
`(emphasis
`In

`other words,
`the safe harbor
`sly discla
`any
`affirmative
`toring requirement
`the
`to
`a
`extent
`that
`monitori
`comprises
`"standard
`t
`cal measure" within
`the meaning of
`512 (i) .

`ing
`to
`accommodate or
`ement
`a
`"standard
`cal measure"
`exposes
`service
`r
`to
`a
`lity; re
`to provi
`access to
`sms by
`l
`ch
`a service provider affirmatively
`its
`own network
`no such resul t .
`In this case,
`the
`class plaintiffs make no
`that
`the content
`i
`ification tools implemented by YouTube constitute
`"standard techni
`measures,u
`that YouTube would
`exposed to 1
`ility under
`§ 512(i).
`For that
`
`same argument
`the
`Plaintiffs make
`YouTube's
`of
`metadata
`search
`, which could conduct automated searches at
`regular intervals for videos matching
`provided by content owners
`(RSUF ~ 299).
`
`17
`
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 18 of 24
`
`safe
`t
`from
`cannot be excluded
`reason,
`harbor by dint of a decision to restrict access to its
`proprietary
`mechanisms.
`
`YouTube's decisions to restrict its monitoring efforts to
`
`groups of
`
`l
`
`lng cl
`
`like
`
`its
`
`isions "to
`
`rest ct access to its proprietary
`
`mechanisms," do not
`
`excl
`
`it from the s
`
`harbor,
`
`ess of their mot
`
`ion.
`
`ntiffs' rema
`
`evidence
`
`control goes no
`
`than
`
`normal funct
`
`of any service provider,
`
`shows
`
`nei
`
`act
`
`icipation in, nor coercion of, user
`
`ingement
`
`PIa
`
`iffs point out
`
`that YouTube's search
`
`technol
`
`facilitat
`
`access to
`
`ing material by suggesting
`
`terms
`
`for users to add to their
`
`query, which assists "users in
`
`locat
`
`ringing
`
`by providing variations
`
`complete name or content owner of a copyr
`
`work even
`
`the user
`
`not typed
`
`'s or owner's
`
`1 name"
`
`(id. ~~l
`
`338-339) ,
`
`by present
`
`viewers wi
`
`links
`
`to cl
`
`"'related' to a video that a user watches"
`
`id. at ~ 334), whi
`
`"likely will
`
`rect" a user viewing "an i
`
`ng cl ip from a
`
`major media company like
`
`acorn"
`
`to "oth.er s
`
`lar infri
`
`ng
`
`videos"
`
`at ~ 335)
`
`But
`
`evidence
`
`so establish.es
`
`YouTube's
`
`technologies are an "automat
`
`system"
`
`"users alone
`
`se"
`
`to view infringing content,
`
`that YouTube
`
`18
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 19 of 24
`
`does "not participate
`
`ln
`
`those decisions," and
`
`that YouTube
`
`therefore does not control
`
`the
`
`infringing activity.
`
`Capitol
`
`Records,
`
`Inc. v. MP3tunes, LLC,
`
`821 F. Supp.
`
`2d 627,
`
`645
`
`(S.D.N.Y. 2011)
`
`The only evidence that YouTube may have steered viewers
`
`toward
`
`infringing videos
`
`is as
`
`follows: YouTube
`
`employees
`
`regularly
`
`selected
`
`clips
`
`to
`
`feature
`
`"with
`
`conspicuous
`
`positioning on its homepage"
`
`(RSUF ~ 331), and on two occasions
`
`chose
`
`to highlight a clip-in-suit.
`
`YouTube asserts, without
`
`contradiction,
`
`that the creators of the work contained ln the
`
`first clip-in-suit, "the premiere of Amp' d Mobile's Internet
`
`show
`
`'Lil' Bush,'" made the clip available on YouTube, and that
`
`YouTube featured the second clip-in-suit, "a promotional video
`
`from comedy group Human Giant entitled "Illuminators!,"' on its
`
`homepage at the request of Human Giant's agent (id. ~ 332).
`
`No
`
`reasonable ] ury could conclude from that evidence that YouTube
`
`participated in its users' infringing activity by exercising its
`
`editorial control over the site.
`
`Thus, during the period relevant to this litigation,
`
`the
`
`record establishes
`
`that YouTube
`
`influenced
`
`its users
`
`by
`
`exercising
`
`its
`
`right
`
`not
`
`to monitor
`
`its
`
`service
`
`for
`
`infringements, by enforcing basic rules regarding content
`
`(such
`
`as
`
`limitations on violent,
`
`sexual or hate material) ,
`
`by
`
`19
`
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 20 of 24
`
`facilitating access to all user stored material rega
`
`ss
`
`without actual or construct
`
`knowledge) of
`
`it was
`
`infringing,
`
`and by
`
`t
`
`its site for
`
`some
`
`material and assist
`
`some content owners in their efforts to
`
`do the same.
`
`is no
`
`that YouTube
`
`induced its
`
`users to submit inf
`
`ded users with detailed
`
`tructions about what content
`
`to upload or edited
`
`their
`
`content, prescreened
`
`ssions for quali ty, steered users to
`
`infringing videos, or
`
`se interacted with infringing users
`
`to a point where it might be said to
`
`participated in their
`
`infringing activity.
`
`As the Ninth Circuit stat
`
`in UMG III, 2013 WL 1092793, at
`
`*19, regarding Veoh, another online
`
`atform for user-submitted
`
`s:
`
`
`(d)
`
`interactions with and conduct
`
`In this case, Veoh's
`toward its users did not rise to
`a
`level.
`As
`recognized, "(a)
`Matz
`all
`infringing
`al resided
`on Veoh's systemj
`(b) Veoh
`the
`remove such material j
`(c)
`d have
`to
`and did implement, filteri
`systemsi and
`could
`have
`searched
`entially
`content. II
`UMG II, 665 F. Supp. 2d at 1112.
`circumstances
`are
`not
`equivalent
`to
`the
`to consti tute substantial
`I uence
`acti vi ties found
`in
`t and Grokster. Nor has UMG,
`in its initi
`or supplemental briefing
`to this court, poi
`to
`ot
`dence raising a genuine
`issue of materi
`fact
`to whether Veoh's
`activities
`involved
`as
`"some
`ng more
`than the ability to remove
`ock
`access
`to mat
`als posted on a service
`ite./I
`Viacom, 676 F.3d at 38
`(quot
`Records, Inc. v. MP3Tunes, LLC, 821 F. Supp. 2d 627,
`
`20
`
`

`

`Case 1:07-cv-02103-LLS Document 452 Filed 04/18/13 Page 21 of 24
`
`v. Demand
`(S.D.N.Y. Oct. 25,2011)); cf.
`635
`Media
`Inc., No. 11 Civ. 2503
`(PKC) , 2012 WL 2189740
`(S.D.N.Y. June 13,2012)
`(citing the y~~~C?1"[1 examples
`and holding,
`"No evidence
`s a conclusion that
`the defendant exerted such close cont
`over content
`posted to [the website].
`Bas
`on the evidence
`at summary judgment, no
`e
`j
`d conclude
`that
`the
`defendant
`exercis
`over user
`submissions sufficient
`to
`remove
`it from
`the safe
`harbor provision of section 512 (c) (1) (B) .") .
`
`YouTube did not have
`
`the
`
`and ability
`
`to control
`
`infr

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