Viacom International, Inc. v. Youtube, Inc.

Filing 298

MOTION TO FILE AMICUS CURIAE BRIEF, on behalf of Non-Party Filer(s), FILED. Service date04/07/2011 by CM/ECF.[256806] [10-3270]

Viacom International, Inc. v. Youtube, Inc.

Doc. 298

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT Docket Number(s): 10-3270-cv; Motion for: Leave

10-3342-cv

to File Amicus Curiae Brief

Viacom Int'l Inc. et al. v. YouTube, Inc. et al.; The Football Ass'n Premier League Ltd. et al. v. YouTube Inc. et al.

Caption [use short title]

Set forth below precise, complete statement of relief sought:

Computer & Communications Industry Ass'n (CCIA) and NetCoalition seek leave to file a brief amici curiae in support of appellees YouTube et al., urging affirmance.
MOVING PARTY:Amici Curiae CCIA & NetCoalition Plaintiff Defendant Appellant/Petitioner Appellee/Respondent MOVING ATTORNEY: Jonathan OPPOSING PARTY: The

Football Ass'n Premier League et al.

Band

Jonathan Band PLLC 21 Dupont Circle NW, Suite 800 Washington DC 20036 [phone] / [e-mail]
Court-Judge/Agency appealed from: U.S. Please check appropriate boxes:

OPPOSING ATTORNEY: Charles Sims [name of attorney, with firm, address, phone number and e-mail]

Proskauer Rose 11 Times Square New York, NY 10036 [phone]

District Court for the Southern District of New York
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has request for relief been made below? Yes No Has this relief been previously sought in this Court? Yes No Requested return date and explanation of emergency:

Has movant notified opposing counsel (required by Local Rule 27.1): ! Yes No (explain): Opposing counsel's position on motion: ! Unopposed Opposed Don't Know Does opposing counsel intend to file a response: ! Yes No Don't Know Is oral argument on motion requested? Has argument date of appeal been set? Yes

! No (requests for oral argument will not necessarily be granted)

Yes ! No If yes, enter date:__________________________________________________________ Has service been effected?
! Yes

Signature of Moving Attorney: /s/ Jonathan Band ___________________________________Date: 4-7-2011 ___________________

No [Attach proof of service]

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________

Form T-1080

Dockets.Justia.com

10-3270-cv 10-3342-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________ VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION, LLC, Plaintiffs-Appellants, v. YOUTUBE, INC., YOUTUBE LLC, and GOOGLE, INC., Defendants-Appellees. ____________ (Additional Caption and Attorneys on Reverse) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________ MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION AND NETCOALITION IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE ____________

FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, on behalf of themselves and all others similarly situated, BOURNE CO., CAL IV ENTERTAINMENT, LLC, CHERRY LANE MUSIC PUBLISHING COMPANY, INC., NATIONAL MUSIC PUBLISHERS' ASSOCIATION, THE ROGERS & HAMMERSTEIN ORGANIZATION, EDWARD B. MARKS MUSIC COMPANY, FREDDY BIENSTOCK MUSIC COMPANY, dba Bienstock Publishing Company, ALLEY MUSIC CORPORATION, X-RAY DOG MUSIC, INC., FEDERATION FRANCAISE DE TENNIS, THE MUSIC FORCE MEDIA GROUP LLC, SIN-DROME RECORDS, LTD., on behalf of themselves and all others similarly situated, MURBO MUSIC PUBLISHING, INC., STAGE THREE MUSIC (US), INC., and THE MUSIC FORCE, LLC, Plaintiffs-Appellants, and ROBERT TUR, dba Los Angeles News Service, THE SCOTTISH PREMIER LEAGUE LIMITED Plaintiffs, v. YOUTUBE, INC., YOUTUBE LLC, and GOOGLE, INC., Defendants-Appellees Markham C. Erickson Holch & Erickson LLP and Executive Director, NetCoalition 400 N. Capitol Street NW, Suite 585 Washington, DC 20001 [phone] [e-mail] Matthew Schruers Vice President, Law & Policy Computer & Communications Industry Association 900 Seventeenth Street NW, 11th Floor Washington, D.C. 20006 [phone] [e-mail] Jonathan Band Jonathan Band PLLC 21 Dupont Circle NW, Suite 800 Washington, D.C. 20036 [phone] [e-mail]

2

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae state that: CCIA represents large, medium-sized, and small companies in the high technology products and services sectors, including computer hardware and software, electronic commerce, telecommunications and Internet products and services ­ companies that collectively generate more than $250 billion in annual revenues. A complete list of CCIA members is available at http://www.ccianet.org/members. No publicly held corporation has an ownership stake of 10% or more in CCIA. NetCoalition serves as the public policy voice for some of the world's most innovative Internet companies on legislative and administrative proposals affecting the online realm. NetCoalition's members include Amazon.com, Bloomberg LP, eBay, IAC, Wikipedia, Yahoo!, and Google. No publicly held corporation has an ownership stake of 10% or more in NetCoalition.

3

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION AND NETCOALITION IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE Pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure, the Computer & Communications Industry Association (CCIA) and NetCoalition respectfully move for leave to file the "Brief of Amici Curiae Computer and Communications Industry Association and NetCoalition in Support of Appellees and Urging Affirmance." A copy of the brief accompanies this motion. CCIA represents large, medium-sized, and small companies in the high technology products and services sectors, including computer hardware and software, electronic commerce, telecommunications and Internet products and services ­ companies that collectively generate more than $250 billion in annual revenues. A complete list of CCIA members is available at http://www.ccianet.org/members. NetCoalition serves as the public policy voice for some of the world's most innovative Internet companies on legislative and administrative proposals affecting the online realm. NetCoalition's members include Amazon.com, Bloomberg LP, eBay, IAC, Wikipedia, Yahoo!, and Google.1

1

Although Google is a member of both CCIA and NetCoalition, none of the parties to either of these cases (i.e., Plaintiffs-Appellants or RespondentsDefendants) nor their counsel authored this motion in whole or in part; nor did any party or any party's counsel contribute money intended to fund preparing or
4

Reversal of the decision below would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many of the services provided by CCIA and NetCoalition members. Under the liability regime proposed by Viacom, many Internet companies would no longer be able to provide a free and open platform for user generated content. The potential cost of liability would force Internet companies to discontinue products or services, charge for their currently free services, or monitor their users' communications in search of potentially infringing material. Any of these approaches would harm CCIA and NetCoalition members, as well as their hundreds of millions of regular users. This brief amici curiae focuses on aspects of the case relating to intentional inducement, a dimension of secondary liability addressed at length by the Supreme Court in MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 929 (2005). First, the brief argues that intentional inducement is not a new form of secondary copyright infringement liability distinct from contributory infringement. Rather, the Supreme Court in Grokster redefined contributory infringement as intentionally inducing infringement.

submitting the motion; nor did anyone else other than Amici and their counsel contribute money that was intended to fund preparing or submitting this motion.

5

Second, the brief demonstrates that Viacom in its brief distorts the Grokster Court's finely-tuned test for determining whether a distributor of a technology product or service has intentionally induced infringement. Viacom ignores the Supreme Court's careful calibration of the inducement doctrine to ensure that it "does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Id. at 937. Third, the brief shows that the safe harbors of the DMCA apply to all forms of copyright liability. Contrary to Viacom's suggestion, intentional inducement is not categorically ineligible for the safe harbor's protections. Finally, the brief contends that Viacom attempts to upset the balance Congress and the courts have established in our intellectually property (IP) laws. The Supreme Court observed that the IP laws strike a "difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other...." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). While the Internet has posed challenges to traditional distributors of copyrighted works, it has also presented a wide range of new opportunities for the creation and distribution of creative works.

6

The matters discussed in this brief amici curiae relate directly to arguments made by appellants and appellees in their briefs. Amici are uniquely situated to provide the Court with the perspective of the Internet and information technology industries on these matters. Appellees as well as Appellants Viacom et al. consented to the filing of this brief. Counsel for Appellants Football Association Premier League Ltd. et al. withheld consent. For the foregoing reasons, amici respectfully request leave to file a brief as amicus curiae in this proceeding. Respectfully submitted,

Markham C. Erickson Holch & Erickson LLP and Executive Director, NetCoalition 400 N. Capitol Street NW, Suite 585 Washington, DC 20001 [phone] [e-mail] Matthew Schruers Vice President, Law & Policy Computer & Communications Industry Association 900 Seventeenth Street NW, 11th Floor Washington, D.C. 20006 [phone] [e-mail]

Jonathan Band Jonathan Band PLLC 21 Dupont Circle NW, Suite 800 Washington, D.C. 20036 [phone] [e-mail]

7

CERTIFICATE OF SERVICE I hereby certify, pursuant to FRAP 25(d)(2), that on this 7th day of April, 2011, a true and correct copy of the foregoing Motion for Leave to File Brief of Amici Curiae Computer & Communications Industry Association and NetCoalition in Support of Appellees and Urging Affirmance was timely filed in accordance with FRAP 25(a)(2)(B) and served on all counsel of record in this appeal via CM/ECF pursuant to Second Circuit Rule 25.1(h).

Counsel for Amici Curiae Jonathan Band Jonathan Band PLLC 21 Dupont Circle NW, Suite 800 Washington, D.C. 20036 [phone] [e-mail]

April 7, 2011

8