Viacom International, Inc. v. Youtube, Inc.
FRAP 28(j) LETTER, dated 09/02/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 09/02/2011 by CM/ECF. [10-3270]
Mayer Brown LLP 1675 Broadway New York, New York 10019-5820 September 2, 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. 10-3342 Dear Ms. Holmes and Ms. Gay: We write in response to appellants’ August 26, 2011 letter discussing United States v. Ferguson. Ferguson reiterates the standard for giving a consciousavoidance instruction in a criminal case. It neither adds to nor deviates from longstanding Second Circuit law to which YouTube has taken no exception, so appellants’ election to submit a 28(j) letter discussing the decision is puzzling. In any event, Ferguson’s fact-specific holding that a conscious-avoidance instruction was proper in light of a series of specific “red flags” regarding the transactions at issue (slip op. 32-33) has no application here and does not remotely call into question Judge Stanton’s summary-judgment ruling. As explained in our brief, there is no basis in the DMCA (or precedent) for importing a broad willful blindness rule into the statute’s carefully balanced framework. YouTube Br. 37-40. The DMCA deliberately supplants common-law notions of willful blindness, and appropriately so given the difficulties that service providers like YouTube would have divining whether particular material is or is not authorized. (That difficulty was recognized by Judge Stanton below (SPA-19) and more recently by Judge Pauley in Capitol Records v. MP3tunes, 07-cv-9931, slip op. at 17.) The summary-judgment record in this case illustrates the wisdom of the DMCA’s approach. As we have shown, YouTube is full of indisputably noninfringing material, including countless non-infringing videos containing appellants’ content. YouTube Br. 9-11, 63-66, 88-89. Indeed, even appellants and their lawyers 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 September 2, 2011 Page 2 have had persistent difficulties determining which YouTube videos they themselves posted, authorized, or intentionally left up. Id. at 44-53, 66-69. Finally, the conscious-avoidance doctrine discussed in Ferguson would not help appellants even if it did apply here. As recently made clear both by the Supreme Court in Global-Tech v. SEB, 131 S. Ct. 2060, 2070-71 (2011), and by this Court, common-law willful blindness requires proof that a provider made “active efforts” to ignore a very significant risk that specific material was infringing. Tiffany v. eBay, 576 F. Supp. 2d 463, 515, aff’d 600 F.3d 93 (2d Cir. 2010). Ferguson does not purport to alter that requirement, and appellants cannot come close to meeting it here. YouTube Br. 40-43. Respectfully submitted, /s Andrew H. Schapiro Andrew H. Schapiro Counsel for YouTube