Viacom International, Inc. v. Youtube, Inc.
FRAP 28(j) LETTER, dated 08/26/2011, on behalf of Appellant Viacom International, Inc., RECEIVED. Service date 08/26/2011 by CM/ECF. [10-3270]
Theodore B. Olson Direct: +1 202.955.8668 Fax: +1 202.530.9575 TOlson@gibsondunn.com August 26, 2011 VIA ECF Ms. Deborah Holmes Case Manager, Clerk’s Office United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: Viacom International, 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. 10-3342 Dear Ms. Holmes: Pursuant to FRAP 28(j), I write to advise the Court of the applicability of its recent decision in United States v. Ferguson, No. 08-6211, to the above-captioned cases. In Ferguson, the Court reaffirmed that even a criminal statute may be violated “knowingly” if the violator “‘was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.’” Slip op. 31-32 (quoting United States v. Quattrone, 441 F.3d 153, 181 (2d Cir. 2006)). The Court explicitly invoked the Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 & n.9 (2011), in equating the doctrine of “conscious avoidance” at issue in Ferguson to “willful blindness,” the doctrine at issue in this case. Id. at 31 n.14. And the Court confirmed that “both actual knowledge and conscious avoidance” may be proven through evidence of “[r]ed flags about the legitimacy of a transaction.” Slip op. 38. Appellants have argued that YouTube’s knowledge of the rampant infringement taking place on its site is established by its willful blindness to that infringement. See Viacom Br. 34-39; Premier League Br. 34-36. Ferguson confirms that such conscious avoidance can be demonstrated not only through evidence of affirmative steps to avoid specific knowledge of incriminating facts—present in this record, Viacom Br. 11-14—but also through “red flags about the legitimacy of  transactions,” which permeate this record. See JAII-47 (“probably 75-80% of our views come from copyrighted material”); JAII159-60. Ferguson also refutes YouTube’s primary defense to Viacom’s willful-blindness argument, i.e., that Congress intended the awareness prong of the DMCA safe harbor to replace the common law doctrine of willful blindness. See YouTube Br. 37-40. The Ferguson Court Ms. Deborah Holmes August 26, 2011 Page 2 emphasizes that “conscious avoidance” is merely an alternative means of proving knowledge; the “government need not choose between an ‘actual knowledge’ and a ‘conscious avoidance’ theory.” Slip op., at 32. In so doing, Ferguson precludes YouTube’s cramped understanding of the DMCA’s knowledge prong as excluding willful blindness. See YouTube Br. 38. The Class Appellants have authorized me to say they join this letter. Very truly yours, /s/ Theodore B. Olson Theodore B. Olson