USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 1 of 30
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`Appeal No. 23-13156-F
`In the United States Court of
`Appeals for the Eleventh Circuit
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`ATHOS OVERSEAS LIMITED CORP.,
`Appellant,
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`v.
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`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE, LLC,
`Appellees.
`
`On Appeal from the United States District Court
`for the Southern District of Florida
`Case No. 21-cv-21698-DPG
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`APPELLANT’S REPLY BRIEF
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`
`Omar Ortega
`Rey Dorta
`Rosdaisy Rodriguez
`Dorta & Ortega, PA
`Attorneys for Appellant
`3860 SW 8th Street, PH
`Coral Gables, Florida 33134
`Phone: 305-461-5454
`Email: oortega@dortaandortega.com
`Email: rdorta@dortaandortega.com
`Email:rrodriguez@dortaandortega.com
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`
`Appeal No. 23-13156-F
`In the United States Court of
`Appeals for the Eleventh Circuit
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`ATHOS OVERSEAS LIMITED CORP.,
`Appellant,
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`v.
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`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE, LLC,
`Appellees.
`
`On Appeal from the United States District Court
`for the Southern District of Florida
`Case No. 21-cv-21698-DPG
`
`
`APPELLANT’S REPLY BRIEF
`
`
`Omar Ortega
`Rey Dorta
`Rosdaisy Rodriguez
`Dorta & Ortega, PA
`Attorneys for Appellant
`3860 SW 8th Street, PH
`Coral Gables, Florida 33134
`Phone: 305-461-5454
`Email: oortega@dortaandortega.com
`Email: rdorta@dortaandortega.com
`Email:rrodriguez@dortaandortega.com
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 2 of 30
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`CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
`DISCLOSURE STATEMENT
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`Anaba, Ariel C. Green (Counsel for Appellees)
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`Athos Overseas Limited Corp. (Appellant)
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`Byrd, Dylan (counsel for Appellee)
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`Cine Estelar, Inc.
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`Cine Nostalgia, Inc.
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`Coulter, David T. (counsel for Appellee)
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`Dorta & Ortega, P.A. (counsel for Appellant)
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`Dorta, Reinaldo (counsel for Appellant)
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`Gente de Cine, S.A.
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`Google LLC (Appellee)
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`Gorman, Nathalie M. (counsel for Appellees)
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`Hartman, Catherine R. (counsel for Appellees)
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`Li, Luis (counsel for Appellees)
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`Ortega, Omar (counsel for Appellant)
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`Reed, Jenea M. (counsel for Appellees)
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`Rodriguez, Rosdaisy (counsel for Appellant)
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`Shapiro, Jay B. (counsel for Appellees)
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`Stearn Weaver Miller Weisller Alhadeff & Sitterson, P.A. (counsel for Appellees)
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`C-1 of 2
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`Templeton, Trevor (counsel for Appellees)
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`Top Entertainment Products, Inc.
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`Top Products Investments, Inc.
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`Tuttle, Eric (counsel for Appellees)
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`Vasallo, Carlos
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`Wakefied, Thomas R. (counsel for Appellees)
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`Willen, Brian M. (counsel for Appellees)
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`Wilson Sonsini Goodrich & Rosati (counsel for Appellees)
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`Yen, Lucy (counsel for Appellees)
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`Youtube, LLC (Appellee)
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`Appellant certifies that no publicly held corporation owns 10% or more of its
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`stock.
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`C-2 of 2
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 4 of 30
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`TABLE OF CONTENTS
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`CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
`DISCLOSURE STATEMENT ………………………………………….. C-1
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`
`TABLE OF CITATIONS…. ……………………………………………..
`i
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`
`ARGUMENT …………………………………………………………….. 1
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`A. The DMCA requires YouTube to expeditiously remove all content
`that infringes on the material Athos identified in its DMCA
`takedown notice and that it locates through its automatic
`deployment of fingerprinting technology.……………………..…... 3
`
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`B. The evidence shows YouTube had knowledge that the clips-in-suit
`displayed infringing material and it was willfully blind to
`it........................................................................................................ 16
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`
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`C. YouTube financially benefits from material infringing on Athos’
`copyrights and has the right and ability to control that infringing
`activity............................................................................................... 19
`
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`CONCLUSION ………………………………………………………….. 22
`
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`CERTIFICATE OF COMPLIANCE ……………………………………. 23
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`CERTIFICATE OF SERVICE ………………………………………….. 24
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`i
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`TABLE OF CITATIONS
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`Cases
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`
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)………………….. 17
`
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`Atlantic Recording Corp. v. Spinrilla, LLC,
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` 506 F. Supp. 3d 1294 (S.D. Fla. 2020) …………………...…………….
`17
`
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`Disney Enterprises, Inc. v. Hotfile Corp.,
`
` No. 11-20427-CIV, 2013 WL 6336283, at *18 (S.D. Fla. Sept. 20,
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` 2013..........................................................……………………………….
`2, 20
`
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`Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153 (11th Cir. 2022)… 17
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`Fonovisa, Inc. v. Cherry Auction, Inc.,
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` 76 F.3d 259 (9th Cir. 1996)…….……………………………………….
`19, 20
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`Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011)………… 18
`
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`Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010)….……… 15
`
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`Peter Letterese And Assocs., Inc. v. World Inst. Of Scientology
`
`Enterprises, 533 F.3d 1287 (11th Cir. 2008)……………………………..
`15
`
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`UMG Recordings, Inc. v. Shelter Cap. Partners LLC,
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` 718 F.3d 1006 (9th Cir. 2013) ………………………………………….
`11, 19
`
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`Viacom Int’l Inc. v. YouTube, Inc.,
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` 676 F. 3d 19 (2d Cir. 2012) …………………………………………….
`8, 11
`
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`Viacom Int’l Inc. v. YouTube, Inc.,
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` 718 F. Supp. 2d 514 (S.D.N.Y. 2010) ………………………………….
`11
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`
`
`Statutes
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`
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`17 U.S.C. §512(c)(1)…………………………………………………….. 1, 4, 8
`17, 20
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`ii
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`17 U.S.C. §512(c)(3)(A)………………………………………………..
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`17 U.S.C. §512(m).……………………………………………………..
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`5, 14
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`3, 9
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`Other Authorities
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`S.Rep. No. 105-190 (1998) ……………………………………………..
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`United States Copyright Office, Section 512 of Title 17, A Report of the
`Register of Copyright (May 2020) ……………………………………… 10
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`
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`11,
`19, 21
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`iii
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`ARGUMENT
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`YouTube’s deliberate refusal to remove all copies of copyrighted material that
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`Athos identifies as infringing in its DMCA takedown requests disqualifies it from
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`safe harbor protection under 17 U.S.C. §512(c). The district court erred in finding
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`YouTube only had to remove the specific URL Athos included in the takedown
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`notice while leaving available other videos identical to the one in the URL. Athos’
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`interpretation of the statute does not require YouTube to do “more than just remove
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`the clips that Athos identified, and instead [] affirmatively search for and remove all
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`other similar unidentified videos.” (YTB p. 221) The contrary is true. Athos is asking
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`YouTube to remove the material that infringes on its copyrighted works, as required
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`by the DMCA. 17 U.S.C. §512(c)(1). YouTube fingerprints and scans for the
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`purpose of matching content every video uploaded to its platform. YouTube
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`automatically uses fingerprinting technology to detect videos that match the material
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`identified in the takedown notice, but does not remove those matches. Instead, it
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`required Athos to send repeated takedown notices for the same work and material in
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`order for YouTube to remove it. Accordingly, YouTube’s decision to not remove
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`the material containing matching fingerprints of the material in the takedown notice
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`and waiting until repeated notices were received disqualifies it from the safe harbor
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`because it did not remove the material expeditiously. The videos matching the
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`1 “YTB __” refers to Appellees’ Brief.
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` 1
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`fingerprints of the material in the notice sent by Athos gave YouTube actual
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`knowledge, or red-flag knowledge, of additional infringing activity, but instead of
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`removing it immediately when it removed the material in the URL, it willfully
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`blinded itself to the infringement.
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`The interpretation of the statute by the district court and YouTube contradicts
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`Congress’ intent in enacting the DMCA and leads to an absurd result. That is, forcing
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`Athos and copyright owners to repeatedly and perpetually send takedown requests
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`to YouTube, imposing an obligation to manually search millions of videos when the
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`search engine that displays the content automatically identifies content matching the
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`infringing material the copyright owner identifies. The “DMCA was meant to foster
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`the growth of the Internet while protecting the rights of copyright holders and
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`encouraging Internet entities’ efforts to offer valuable on-line services, which on
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`occasion might be infringing under copyright law.” See Disney Enterprises, Inc. v.
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`Hotfile Corp., No. 11-20427-CIV, 2013 WL6336286, at *18 (S.D. Fla. Sept. 20,
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`2013). The safe harbor in the DMCA encouraged service providers to invest in the
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`development of the systems while protecting copyrighted works by imposing
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`takedown obligations. The service providers developed
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`the systems
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`that
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`automatically identify infringing activity identical to the one described in a
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`takedown notice. The service provider, without doing anything more than it has
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`already done, is in the better position to remove all matching content. The district
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`court’s conclusion imbalances the quid-pro-quo created by Congress for gaining
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`copyright immunity in exchange for voluntary compliance with §512. It allows
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`YouTube to deliberately ignore infringing material it has knowledge of and severely
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`hinders a copyright owner’s ability to protect its creative works. The district court’s
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`decision empowers YouTube to continue disregarding the rights of copyright
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`creators. This decision is a grave error, impedes creative development, and is an
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`improper interpretation of the DMCA.
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`
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`A. The DMCA requires YouTube to expeditiously remove all content that
`infringes on the material Athos identified in its DMCA takedown notice
`and that it locates through its automatic deployment of fingerprinting
`technology.
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`YouTube misapprehends the statute’s protection of privacy at Section 512(m)
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`
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`to not condition applicability of the safe harbor on “a service provider monitoring
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`its service or affirmatively seeking facts indicating infringing activity” (17 U.S.C.
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`§512(m)) with an alleged right to avoid information. YouTube overstates the
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`protection of §512(m) in an effort to convince this Court that despite YouTube’s
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`practice of affirmatively deploying its fingerprinting technology on every single
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`video uploaded to its platform, it should be allowed to disregard the information
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`learned through that routine use after a copyright owner has complied with its
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`obligation to notify it that activity in YouTube’s platform infringes on copyrighted
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`material. The DMCA, and Congress’ expressed intent when enacting it, does not
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`allow this interpretation.
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`The statute at Section 512(c)(1) states that a service provider shall not be liable
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`. . . for infringement of copyright . . . , if the service provider—
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`(A)(i) does not have actual knowledge that the material or an activity
`using the material on the system or network is infringing;
`(ii) in the absence of such actual knowledge, is not aware of facts
`or circumstances from which infringing activity is apparent; or
`(iii) upon obtaining such knowledge or awareness, acts
`expeditiously to remove, or disable access to, the material;
`(B) does 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; and
`(C) upon notification of claimed infringement as described in paragraph
`(3), responds expeditiously to remove, or disable access to, the material
`that is claimed to be infringing or to be the subject of infringing activity.
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`17 U.S.C. § 512(c)(1)(emphasis added).
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`Pursuant to Section 512(c)(3), a notification of claimed infringement is
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`effective when it is in writing and includes substantially the following:
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`(i) A physical or electronic signature of a person authorized to act on
`behalf of the owner of an exclusive right that is allegedly infringed.
`(ii) Identification of the copyrighted work claimed to have been
`infringed, or, if multiple copyrighted works at a single online site are
`covered by a single notification, a representative list of such works at
`that site.
`(iii) Identification of the material that is claimed to be infringing or to
`be the subject of infringing activity and that is to be removed or access
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`to which is to be disabled, and information reasonably sufficient to
`permit the service provider to locate the material.
`(iv) Information reasonably sufficient to permit the service provider to
`contact the complaining party, such as an address, telephone number,
`and, if available, an electronic mail address at which the complaining
`party may be contacted.
`(v) A statement that the complaining party has a good faith belief that
`use of the material in the manner complained of is not authorized by the
`copyright owner, its agent, or the law.
`(vi) A statement that the information in the notification is accurate, and
`under penalty of perjury, that the complaining party is authorized to act
`on behalf of the owner of an exclusive right that is allegedly infringed.
`17 U.S.C. § 512(c)(3)(A) (emphasis added). The material is not described in the law
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`or legislative history as a particular URL which may be moved and reposted nearly
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`simultaneously with the link. The material is the copyright-protected work that been
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`hosted and promulgated by the service provider.
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`There is no dispute that Athos’ takedown notices fully complied with the
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`requirements of the statute by identifying the material infringing on its copyrighted
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`work. Further, YouTube fingerprints every video uploaded to its platform. Doc 137-
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`6 tr. 102:25-103:10 (stating that “when a video is uploaded [] a fingerprint is
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`generated[.]”). The purpose of generating fingerprints is to ensure YouTube locates
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`and flags infringing content. See Doc 137-6 tr. 70:17-20, 146:12-147:03. Once a
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`video is uploaded, YouTube’s Content ID automatically generates a digital
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`fingerprint of every video. See Doc 137-6 tr. 99:04-13, 102:25-103:07-10, 118:17-
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`120:08 (testifying that when a video is uploaded a fingerprint is generated which is
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`then compared to the fingerprint generated by Content ID reference file). The
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`software mechanically and instantaneously compares the fingerprint with other
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`fingerprints in the platform for purposes of obtaining matches of material that
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`copyright owners have informed YouTube is copyrighted. See 137-6 tr. 100:17-21;
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`103:7-10 109:17-23; 110:6-17.
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`YouTube alleges it only compares the fingerprints of all videos uploaded with
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`material provided by the copyright owner who executes a contract to use Content
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`ID, but “a video that’s already been uploaded onto YouTube can be used as a
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`reference file within the system.” Doc 137-6 tr. 107:20-22. YouTube wants this
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`Court to believe it altruistically offered Athos use of Content ID, but Athos spurned
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`that offer. (YTB p.35) However, YouTube omits that the contract was monopolistic
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`and abusive (See Doc 137-1 tr. 156:04-18, 262:09-263:19; Doc 137-4 at 136, ¶5), as
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`it required Athos to give up valuable legal rights when the DMCA requires YouTube
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`to do what Content ID does without having to execute a contract of adhesion.
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`Moreover, it is not just what Content ID does, it is YouTube’s business model.
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`Naturally, YouTube prefers copyright owners enter into agreements to monetize
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`infringement on YouTube because it generates YouTube billions of dollars. Even if
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`the owner does not monetize the content and blocks it, the material is still monetized
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`until it is blocked. Therefore, rather than removing all content that matches material
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`identified in Athos’ takedown notice, YouTube simply elects to only remove the clip
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`at the specific URL instead of all material in its platform that it knows, based on its
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`own fingerprint, is a match to the material at the identified URL. Doc 137-6 tr.
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`191:02-12 (testifying YouTube interprets “[a] takedown request [as] a request to
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`remove a specific URL.”) YouTube’s action, or rather inaction, is not protected by
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`the DMCA.
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`As detailed in Athos’ Initial Brief, the statute does not require the owner to
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`provide a URL to confer the requisite knowledge and trigger YouTube’s statutory
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`obligation to remove infringing material identified by Athos (AIB2 pp 22-26).
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`YouTube’s decision to punish Athos (and other copyright owners) for refusing to
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`enable infringement of its copyrighted works through YouTube’s advertising and
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`monetization systems by relying on outdated caselaw, which permits YouTube to
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`ignore a copyright owner’s directive for removal of all content that is similar or
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`identical to that described in a takedown request, considering YouTube’s customary
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`business practices to identify that specific material contradicts the DMCA’s plain
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`language and intent. The allegation that Athos is demanding YouTube to unilaterally
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`monitor its service and remove content without Athos’ participation is disingenuous.
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`(YTB p. 35) Athos is not asking YouTube to preemptively police its copyrighted
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`works or to remove Athos’s content without receiving a takedown request. Rather,
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`Athos is demanding noting more than YouTube’s compliance with its obligation
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`2 “AIB __” refers to Appellant’s Initial Brief.
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`under the DMCA once it receives a takedown notice from Athos, which is to
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`“expeditiously [] remove, or disable access to, the material that is claimed to be
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`infringing or
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`to be
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`the subject of
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`infringing activity.” 17 U.S.C. §
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`512(c)(1)(C)(emphasis added). The duty to check the information in the notice and
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`takedown is inherent in the entire Section 512 regime. The system is voluntary for
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`both service providers and copyright owners. “[A]ctual knowledge of infringing
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`material, awareness of facts or circumstances that make infringing activity apparent,
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`or receipt of a takedown notice will each trigger an obligation to expeditiously
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`remove the infringing material.” Viacom Intern., Inc. v. YouTube, Inc., 676 F.3d 19,
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`27–28 (2d Cir. 2012). It is axiomatic that the takedown notice provides facts
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`regarding additional instances of infringement, and YouTube, which has total
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`control over its own systems, is in the better position between the two parties to
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`conduct a simple and automated search to ensure the URL provided is accurate and
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`also to identify the other instances of the same content being hosted elsewhere on
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`the service provider’s systems. After all, the content uploaded is always
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`fingerprinted and compared to other content before it is allowed to be displayed by
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`YouTube.
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`Contrary to YouTube’s arguments, and the district court’s finding, Section
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`512(m) is not an impediment to removing the fingerprint matches of the material
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`Athos identified in a takedown notice. Section 512(m) provides that “applicability
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`of subsections (a) through (d)”, which includes the safe harbor, is not conditioned
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`on “a service provider monitoring its service or affirmatively seeking facts indicating
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`infringing activity[.]” 17. U.S.C. 512(m)(1). First, removing fingerprint matches of
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`infringing material identified by Athos does not require YouTube to self-monitor
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`infringement or remove the material on its own initiative. To the contrary, YouTube
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`is responding to Athos’ specific request for removal, submitted pursuant to the
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`statute. Moreover, YouTube is a search engine and a content-delivery service
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`designed to identify content – this is its core business. While it may be true that the
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`DMCA does not impart an obligation on service providers to develop or deploy
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`fingerprinting technology, YouTube developed it and deploys it on every single
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`nanosecond of content uploaded to its platform. YouTube is designed to identify
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`content that is identical or nearly-identical to other content – this is how it ensures
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`viewers continue watching similar videos by placing in auto-queue similar content.
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`When particular material has been identified as infringing by the owner of its
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`copyright, as Athos has done thousands of times through repeated proper takedown
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`notices3, YouTube has the obligation to remove that specific content and the matches
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`of that material because it has gained knowledge that those fingerprint matches also
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`likely infringe on Athos’ copyrights. YouTube keeps those fingerprints and even the
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`3 Athos has sent more than 3,452 requests for removal since May 2018; 3,389 of
`which have been for repeated works.
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`videos removed.4 YouTube cannot continue selectively choosing which copyrighted
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`content to protect. The statute does not protect YouTube’s willful blindness to
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`information its routine search mechanisms automatically discover. YouTube’s
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`failure to remove the fingerprint matches of infringing material until it receives
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`another takedown request with a URL is not protected by the DMCA. Holding
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`otherwise imposes burdens on copyright owners that imbalances the interests of
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`copyright owners disproportionally in favor of YouTube and permits YouTube to
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`ignore all information it already has included in a takedown request except for the
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`URL. If a court were enforcing a trademark of counterfeit purses, would the court
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`be satisfied if only one purse was removed from the shelves and the rest left for sale
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`and infringement? If not, why would taking down one instance of the infringing
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`material identified in Athos’ takedown notice be sufficient instead of taking all the
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`readily knowable instances?
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`YouTube chastises Athos’ reliance on the Copyright Office Report to support
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`its interpretation of the statute, which explains Section 512(m) and the statute’s
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`legislative history, as Athos’ advocates here. USCO Report5 at 113-114, 111, n. 591.
`
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`4 Discovery here confirms YouTube keeps copies of videos that Athos requested be
`removed. YouTube produced about 3,302 clips to Athos. Content is only removed
`from public viewing, but YouTube keeps it. Doc 137-6 tr. 83:10-84:04.
`5 “USCO Report at __” refers to Unites States Copyright Office, Section 512 of Title
`17, A Report
`of
`the Register
`of Copyrights,
`(May
`2020),
`http://www.copyright.gov/policy/section512/section-512-full-report.pdf.
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`YouTube claims the “Copyright Office’s report is not legal authority of any kind”,
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`“dubious and out of step with established case law”. (YTB pp 37, 38, n.4) While the
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`Copyright Office Report is not binding authority on this Court, neither are the cases
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`it critiques, which are premised on decisions made more than a decade ago. See e.g.,
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`Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010), vacated
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`in other grounds, 676 F.3d 19 (2d Cir. 2012) and UMG Recordings, Inc. v Shelter
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`Cap. Partners LLC, 718 F.3d 1006, 1022 (9th Cir. 2013). Those cases established
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`policy that, either in hindsight or at the time, is inconsistent with the studied,
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`specialized expertise of the Copyright Office. Indeed, it is appropriate and necessary
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`for this Court to make a de novo analysis of the statute to apply the law as intended
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`by Congress contemplating todays’ technological reality— not in the abstract but as
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`implemented by YouTube’s regular business practices, rather than rely on prior
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`interpretations by other circuits.
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`
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`Interpreting the DMCA as Athos does coincides with Congress’ intent and its
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`goal to “preserve[] strong incentives for service providers and copyright owners to
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`cooperate to detect and deal with copyright infringements that take place in the
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`digital networked environment[.]” S.Rep. No. 105-190 at 40. Instead, YouTube’s
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`argument does exactly the opposite. YouTube asserts that the “Court should not open
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`up a circuit split and undermine the settled expectations of numerous responsible
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`online service providers like YouTube, who have designed and implemented robust
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 18 of 30
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`copyright systems in reliance on established law.” (YTB p. 40). First, if the
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`interpretation is wrong, as Athos correctly asserts, then simply going along to avoid
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`a split is inconceivable. Second, nothing in ruling to remove known copyrighted
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`material, already identified by YouTube, would affect its “implemented robust
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`copyright systems” rather, it would simply force YouTube to use the “robust
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`copyright systems” in the manner it should be implemented. Third, this argument
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`simply deflects from the purpose of the copyright law at issue. YouTube wrongfully
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`argues that Athos’ interpretation switches the burden of policing infringement to
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`place it on YouTube rather than on the copyright owner. The evidence here shows
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`Athos is not advocating for that, and instead Athos has asked YouTube to remove
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`all instances where YouTube knows Athos’ copyrighted material appears on its
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`website. YouTube’s automatic processes compels this result, Athos is not asking
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`YouTube to do something it does not already do. YouTube might have implemented
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`“robust copyrights systems” but does not use them when the copyright owner asks
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`YouTube to stop displaying its content without authorization. It only uses those
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`systems when it is financially beneficial to YouTube. Responding to a takedown
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`notice by removing all instances of the material identified as infringing by its owner
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`is not the equivalent of requiring ongoing monitoring under §512(m) and YouTube’s
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`conflation of the two requirements illustrates the dissembling it uses to avoid any
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` 12
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 19 of 30
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`responsibility to the millions of copyright creators on whose creative efforts it has
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`earned billions without compensation.
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`As an excuse to support its failure to remove all instances of infringement,
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`YouTube argues that Athos’ interpretation deters innovation and harms legitimate
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`expression (YTB p. 40) that would result in the removal of “broad swaths of content
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`that users had every right to upload, including content that is licensed or a fair use”
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`(YTB p. 41). But complying with the removal of material identified by Athos as
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`infringing and all fingerprint matches of such material does not affect expression or
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`innovation as YouTube claims or varies the way takedown requests are processed.
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`Upon receiving a takedown request, YouTube is obligated to remove the content
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`described in the request and it notifies the claimant if the uploader of the content
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`objected to the removal. See Doc 137-6 tr. 172:25-174:02. If the uploader provides
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`a counter-notice in response to the removal, then YouTube notifies the claimant of
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`the counter-notification but allows the claimant and counterclaimant to debate who
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`has paramount rights to display the content. See Doc 137-5 tr. 32:15-33:06, 34:15-
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`20. YouTube does not participate in that discussion over who has superior rights to
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`the content. Id. If instead of removing only the specific URL in the takedown request
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`YouTube also removes the fingerprint matches of the material, the counter-notice
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`procedure would be the exactly the same. YouTube is not involved in the counter-
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` 13
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 20 of 30
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`notification process other than to provide notice of the removal to the uploader and
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`notice of the counter-notice to the claimant.
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`Further, YouTube has no standing to argue that fingerprint matches of
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`material that its copyright owner identified to be infringing content via a takedown
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`notice might not be infringing. It is the copyright owner’s prerogative to reach that
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`conclusion. YouTube’s allegation that it cannot remove fingerprint matches—
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`namely, identical or near identical copies of the content in the takedown notice—
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`premised on its conclusion that the identical copy is not necessarily infringing (YT
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`Br. 42) contradicts YouTube’s argument that it is the copyright owner who has the
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`burden of identifying infringing material (see YTB pp 29, 34). When the copyright
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`owner identifies material as infringing in a takedown request and YouTube removes
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`the material in a URL, YouTube neither questions whether the copyright owner is
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`correct nor verifies whether there is a license authorizing the content or if the video
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`constitutes fair use. YouTube only confirms that the takedown notice includes the
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`requirements of the statute for effective notification, which requires an attestation
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`that the material is not authorized by the copyright owner (see 17 U.S.C.
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`§512(c)(3)(A)(i)-(vi)), removes the URL, and notifies the uploader of the removal.
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`If a counter-notification is received from the uploader, then the claimant is notified,
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`and YouTube removes itself from the debate. The same process would take place if
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`instead of removing only the material at the URL identified as infringing, YouTube
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 21 of 30
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`removes all fingerprint matches of that infringing material. The only thing that
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`would likely change if YouTube complied with the DMCA and removed fingerprint
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`matches of infringing content is the revenue it receives from displaying unauthorized
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`content. Removing all existing infringing content as opposed to removing clip by
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`clip, whenever a copyright owner identifies a specific URL, could “shut down the
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`whole site.” Doc 137-6 tr. 200:10-11. Of course, this is hyperbole but demonstrates
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`the only reason why YouTube so adamantly refuses to remove fingerprint matches
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`of infringing material identified by Athos.
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`YouTube’s attempts to discredit Athos’ notices by alleging a few takedown
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`requests were the subject of license or fair use claims is a factual issue that is not
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`before this Court or the proper subject of summary judgment. Latimer v. Roaring
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`Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010)(“the fair use of copyrighted work
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`is an affirmative defense”); Peter Letterese And Assocs., Inc. v. World Inst. Of
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`Scientology Enterprises, 533 F.3d 1287, 1308 (11th Cir. 2008)(“the existence of a
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`license is an independent affirmative defense to a claim of copyright infringement”).
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`The affirmative defenses of licenses and fair use are a trial issue solely mentioned
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`by YouTube in this instant to place Athos in a bad light before this Court. The remote
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`possibility that a material identified as infringing in a takedown notice and matching
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`videos of that material is subject to a license or is fair use is secondary to the issue
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`in this appeal.
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`USCA11 Case: 23-13156 Document: 42 Date Filed: 03/07/2024 Page: 22 of 30
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`B. The evidence shows YouTube had knowledge that the clips-in-suit
`displayed infringing material and it was willfully blind to it.
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`The evidence shows YouTube fingerprints every video uploaded to the
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`
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`platform, including videos of Athos’ copyrighted works. Doc 137-6 tr. 102:25-
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`103:10. Prior to receiving Athos’ takedown request, the content described in the
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`notice had been fingerprinted and automatically compared to other content on the
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`platform. Doc 137-6 tr. 97:10- 99:13, 103:03-10. Upon processing Athos’ takedown
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`request the fingerprints are automatically processed to ensure similar infringing
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`material is flagged. Id. YouTube can instruct the software to block identical content
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`uploaded in the future, and to remove pre-existing content when the takedown
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`request is received. Doc 137-6 tr. 100:17-21, 148:09-156:20; see also Doc 137-6 tr.
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`200:1-12 (acknowledging the software can remove past, present, and future copies
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`of content displaying infringing material, but it is not done because it could “shut
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`down the whole site.”)
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`YouTube’s argument that there is no evidence showing Content ID even
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`attempted to find matches of the material identified in takedown notices belies the
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`fact that ever single video uploaded into YouTube is fingerprinted and scanned and
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`that Athos had to send repeated takedown notices to have material removed. Had
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`YouTube removed fingerprint matches of the material identified in the notice,
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`whether they were already in the system or uploaded after
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