Viacom International, Inc. v. Youtube, Inc.

Filing 193

LETTER, dated , on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 12/16/2010 by US mail, CM/ECF.[169088] [10-3270]

Viacom International, Inc. v. Youtube, Inc.

Doc. 193

Nos. 10-3270 & 10-3342 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VIACOM INT'L INC., et al. v. Plaintiffs-Appellants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Southern District of New York No. 1:07-CV-2103 The Honorable Louis L. Stanton, United States District Judge

YOUTUBE, INC., et. al., Defendants-Appellees.

THE FOOTBALL ASSOCIATION PREMIER LEAGUE LTD., et al. v. YOUTUBE, INC., et. al., Defendants-Appellees. Plaintiffs-Appellants,

On Appeal from the United States District Court for the Southern District of New York No. 1:07-CV-03582 The Honorable Louis L. Stanton, United States District Judge.

APPELLEES' RESPONSE TO MOTIONS FOR LEAVE TO FILE BRIEFS AS AMICI CURIAE Appellees YouTube, Inc., YouTube, LLC, and Google, Inc. ("YouTube") submit this response to the motions of Audible Magic Corp. and Vobile, Inc. for leave to file briefs as amici curiae. Neither the Audible Magic nor the Vobile brief contains any legal argument. Instead, both briefs consist entirely of extra-record factual assertions about the technologies that each company offers. While YouTube does not object to the filing of the proposed amicus briefs, that should not be taken as agreement with the

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various factual assertions that they make. We draw attention to that point because Audible Magic and Vobile were percipient witnesses in this case; both companies produced documents in response to subpoenas, and Audible Magic provided deposition testimony. The district court record thus contains considerable evidence about those companies and their technologies, some of which the parties cited in their summary judgment briefs. To the extent that those factual issues are relevant to this appeal, it is that record evidence that matters--not the extra-record assertions contained in the proposed amicus briefs. Audible Magic's proposed brief is particularly irrelevant because the single sentence in the district court's opinion to which that brief is addressed concerns an issue that is not part of this appeal. See Declaration of Jeremy Stern In Support Of Motion Of Audible Magic Corporation To File Brief Amicus Curiae In Support Of Neither Party ¶¶ 10-11. In granting summary judgment to YouTube, the district court rejected Plaintiffs' argument that YouTube's repeat-infringer policy was unreasonable because, for a period of time, YouTube did not assign "strikes" to users who posted videos that were automatically blocked by Audible Magic's technology. SPA-30-31. In so holding, the court cited a ruling in a different case that concluded that the automated Audible Magic filter was not sufficiently reliable to justify terminating a user's account. SPA-31 (citing UMG Recordings v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1116-18 (C.D. Cal. 2009)). But neither Viacom nor the putative class plaintiffs have chosen to challenge YouTube's repeatinfringer policy on the basis of whether and how YouTube assigned strikes using

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Audible Magic's technology. As a result, the sole issue raised in Audible Magic's proposed brief is not before this Court and thus not "relevant to the disposition of the case." Fed. R. App. P. 29(b)(2). YouTube nevertheless does not object to the filing of the brief. Respectfully submitted, December 17, 2010 David H. Kramer Bart E. Volkmer WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304 [phone] s/ Andrew H. Schapiro Andrew H. Schapiro A. John P. Mancini Brian M. Willen MAYER BROWN LLP 1675 Broadway New York, NY 10019 [phone]

Attorneys for YouTube, Inc.

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CERTIFICATE OF SERVICE I certify that on December 17, 2010, I caused copies of Appellees' Response to Motions for Leave to File Briefs As Amici Curiae to be sent, by first class United States mail and by electronic mail, to the following: Paul M. Smith William H. Hohengarten Scott B. Wilkens JENNER & BLOCK LLP 1099 New York Ave., NW Washington, D.C. 20001 [phone] [e-mail] [e-mail] [e-mail] Susan J. Kohlmann JENNER & BLOCK LLP 919 Third Ave. New York, NY 10022 [phone] [e-mail] Stuart J. Baskin John Guelli Kirsten Nelson Cunha SHEARMAN & STERLING LLP 599 Lexington Ave New York, NY 10023 [phone] [e-mail] [e-mail] [e-mail] Theodore B. Olson Matthew D. McGill GIBSON DUNN 1050 Connecticut Ave., NW Washington, D.C. 20036 [phone] [e-mail] [e-mail] John C. Browne BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 (212) 55401400 [e-mail] s/ Andrew H. Schapiro Andrew H. Schapiro

Charles S. Sims PROSKAUER ROSE LLP 1585 Broadway New York, NY 10036 [phone] [e-mail]