Viacom International, Inc. v. Youtube, Inc.
FRAP 28(j) LETTER, dated 06/17/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 06/17/2011 by CM/ECF. [10-3270]
Mayer Brown LLP 1675 Broadway New York, New York 10019-5820 June 17, 2011 Main Tel +1 212 506 2500 Main Fax +1 212 262 1910 www.mayerbrown.com Andrew H. Schapiro Ms. Deborah Holmes Ms. Kimberly Gay Case Managers, Clerk’s Office U.S. Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: Direct Tel +1 212 506 2672 Direct Fax +1 212 849 5672 firstname.lastname@example.org Viacom Int’l, Inc., et al. v. YouTube, Inc., et al., No. 10-3270; The Football Ass’n Premier League, et al. v. YouTube, Inc., et al., No. 103342 Dear Ms. Holmes and Ms. Gay: YouTube writes in response to Appellants’ 28(j) letter dated June 14, 2011. The Supreme Court’s decision in Global-Tech does not support Appellants’ efforts to disqualify YouTube from DMCA protection on the basis of the willful-blindness doctrine. Global-Tech is a patent case decided under 35 U.S.C. §271(b). It is not a copyright case, and does not address the DMCA in any way. There are important differences between the DMCA and §271(b). While §271(b) is silent about knowledge, the DMCA has express provisions governing knowledge of infringement, including a specific statutory alternative to actual knowledge (§512(c)(1)(A)). The DMCA’s knowledge provisions also must be interpreted consistently with another provision (§512(m)), which relieves service providers of any obligation to affirmatively seek facts indicating infringing activity. Section 271(b) has nothing like that. Consequently, the Court’s observation in Global-Tech (at 12) that it could “see no reason why” a willful-blindness doctrine derived from criminal law should not apply to §271(b) does not extend to the DMCA. There are compelling reasons why an extra-statutory alternative to actual knowledge should not be engrafted onto the carefully calibrated DMCA framework. YouTube Br. 37-40. But even if Global-Tech’s conception of willful blindness did apply, it would make no difference in this case. The DMCA’s knowledge provisions still would require a showing as to particular infringing material, and generalized knowledge Mayer Brown LLP operates in combination with our associated English limited liability partnership and Hong Kong partnership (and its associated entities in Asia) and is associated with Tauil & Chequer Advogados, a Brazilian law partnership. Mayer Brown LLP Deborah Holmes & Kimberly Gay June 17, 2011 Page 2 of unspecified infringement still would be insufficient. YouTube Br. 29-34; cf. Global-Tech Op. 15-16 (assessing defendant’s willful blindness as to a particular piece of intellectual property). Moreover, the Supreme Court’s standard for willful blindness is demanding. It requires a “subjective belief” not simply of a “known risk,” but of a “high probability that a fact exists.” Global-Tech Op. 13-14. And it requires not merely “deliberate indifference” to the likelihood of infringement, but “active efforts … to avoid knowing about the infringing nature of the activities.” Id. at 14. The Court explained that this formulation gives “willful blindness an appropriately limited scope that surpasses recklessness and negligence.” Id. As discussed in our brief, Appellants offer no evidence that would satisfy that rigorous test. YouTube Br. 40-53. Respectfully submitted, /s Andrew H. Schapiro Andrew H. Schapiro Counsel for Defendants-Appellees