Viacom International, Inc. v. Youtube, Inc.
FRAP 28(j) LETTER, dated 01/09/2012, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 01/09/2012 by CM/ECF. [10-3270]
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ANDREW H. SCHAPIRO
January 9, 2012
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
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 (argued Oct. 18, 2011 (Cabranes, Miner, Livingston))
Dear Ms. Holmes & Ms. Gay:
YouTube writes to notify the Court of another recent decision adopting the
understanding of the DMCA advocated by YouTube in this appeal. Wolk v. Kodak
Imaging Network, Inc., 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012).
In Wolk, Judge Sweet found on summary judgment that Photobucket—an
online service allowing users to post photographs—is protected by §512(c). The
court held, first, that DMCA notices identifying particular instances of infringement
of certain copyrighted works did not confer knowledge requiring Photobucket to find
and remove other instances of those works. 2012 WL 11270, at *20. It explained
that because “Wolk and other copyright holders retain the right to license their
work, a policy under which Photobucket assumes infringement could result in
Photobucket unlawfully blocking others from uploading images to which they hold
valid licenses.” Id. Plaintiffs here make the same misguided argument. YouTube
Second, the court held that Photobucket lacks the “right and ability to
control” the alleged infringing activity:
[S]uch a right and ability to control must take the form of prescreening
content, rendering extensive advice to users regarding content and
editing user content. In this case, Photobucket does not engage in such
activities, and, considering that millions of images are uploaded daily,
it is unlikely that this kind of prescreening is even feasible.
2012 WL 11270, at *21. That applies even more powerfully to YouTube. YouTube
Third, Judge Sweet adopted the understanding of the “financial benefit”
provision that YouTube advocates (Br. 73-77), holding that Photobucket is protected
because there was no evidence that it “capitalizes specifically because a given image
a user selects to print is infringing. The Defendants’ profits are derived from the
service they provide, not a particular infringement.” 2012 WL 11270, at *21.
Finally, relying on §512(m), the court rejected plaintiff’s argument that
“Photobucket would be required to police its website for infringing copies of her
work wherever they may appear once she has provided a DMCA-compliant
notice.” Id. at *22-23. Wolk is thus the latest in an unbroken line of cases
confirming that Judge Stanton’s decision is correct and should be affirmed.
/s Andrew H. Schapiro
Andrew H. Schapiro
Counsel for YouTube