Viacom International, Inc. v. Youtube, Inc.

Filing 349

MOTION TO FILE AMICUS CURIAE BRIEF, on behalf of Non-Party Filer(s), FILED. Service date04/12/2011 by CM/ECF.[260573] [10-3270]

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

10-3270 cv; 10-3342 cv

Caption [use short title]

Leave to file a brief of amici curae

Viacom International Inc., et al. v. Youtube, Inc., et al.

Docket Number(s):
Motion for:

Set forth below precise, complete statement of relief sought:

Leave of Court to file the attached brief of amici curae

in support of appellees.

MOVING PARTY: National Consumers League, et al.
9 Plaintiff
9 Defendant
9 Appellant/Petitioner
9 Appellee/Respondent

OPPOSING PARTY:

MOVING ATTORNEY: Anthony P. Schoenberg
OPPOSING ATTORNEY:
[name of attorney, with firm, address, phone number and e-mail]

Farella Braun + Martel LLP
235 Montgomery Street, 18th Floor
San Francisco, CA 94538
415-954-4400; [e-mail]
Court-Judge/Agency appealed from:

Southern District of New York (Stanton, J.)

Please check appropriate boxes:

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
9 Yes 9 No
Has this relief been previously sought in this Court?
9 Yes 9 No
Requested return date and explanation of emergency:

Has movant notified opposing counsel (required by Local Rule 27.1):
9 Yes 9 No (explain):
Opposing counsel’s position on motion:
9 Unopposed 9 Opposed 9 Don’t Know
Does opposing counsel intend to file a response:
9 Yes 9 No 9 Don’t Know
Is oral argument on motion requested?

9 Yes

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

Has argument date of appeal been set?

9 Yes 9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:
/s/ Anthony P. Schoenberg
4/711
___________________________________Date: ___________________

Has service been effected?

9 Yes

9 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: _____________________________________________

Form T-1080

By: ________________________________________________

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

VIACOM INTERNATIONAL, INC., et al.,
Plaintiffs-Appellants,

No. 10-3270

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

THE FOOTBALL ASSOCIATION
PREMIER LEAGUE LIMITED, et al.,
Plaintiffs-Appellants,

No. 10-3342

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

MEMORANDUM IN SUPPORT OF MOTION OF NATIONAL
CONSUMERS LEAGUE, CONSUMERS UNION OF UNITED
STATES, INC., CONSUMER ACTION, AND UNITED STATES
STUDENT ASSOCIATION FOR LEAVE TO FILE
BRIEF OF AMICI CURIAE SUPPORTING APPELLEES

26567\2545012.1

The National Consumers League, Consumers Union of United States,
Inc., Consumer Action, and the United States Student Association
respectfully request the Court grant them leave to file a brief of amici curiae
supporting appellees. A copy of the proposed amicus brief is attached as
Exhibit 1 to the accompanying affidavit of Anthony Schoenberg
(“Schoenberg Affidavit”). Appellants and appellees in these consolidated
proceedings have consented to this filing. Schoenberg Affidavit ¶¶ 3-4.
Amici have a significant interest in the important questions this case
presents concerning the interpretation of the Copyright Act, 17 U.S.C. §§
101 et seq., and in particular the Digital Millennium Copyright Act
provisions codified at Section 512 (the “DMCA”). Amici together represent
workers, consumers, and students across the nation with the common goal of
protecting and promoting social and economic justice in the United States
and abroad. To that end amici regularly provide government, businesses,
and other organizations with the unique perspective of their constituents on a
wide range of important concerns including developments in technology and
related laws such as the DMCA.
Amici seek to file the attached brief in order to express their strong
support for the district court’s decision, and to provide the Court with an
important perspective on how its interpretation of the DMCA’s safe-harbor
26567\2545012.1

provisions will directly affect workers, consumers, and students as well as
their safe and informed participation in the marketplace. In this age of
rapidly advancing technology, user-generated content websites like
YouTube have become an indispensable forum for the review and critique,
by and for consumers and citizens alike, of products, services, and
entertainment. These sites play a vital role in ensuring that consumers have
ready access to complete and accurate information about the goods and
services offered in the marketplace, a common policy goal of amici. Thus,
the viability of internet service providers such as YouTube is an issue of
critical interest to amici, their members, and their constituents.
Amici respectfully submit, then, that the brief will benefit the Court in
its consideration of this case, and leave to file should be granted. Appellees
have not authored all or any part of the amicus brief; nor have they made a
monetary contribution intended to fund its preparation or submission.
Instead, the brief offers the Court the unique perspective of amici on the
significant and direct impact that the resolution of this case will have on the
lives of workers, consumers, and students across the nation. That
perspective is one that is both important and relevant to the legal and policy
issues this case raises and is one that is not likely to be meaningfully

26567\2545012.1

represented by the arguments of the principal parties. Accordingly, we
respectfully submit that the amicus brief should be filed.
Dated: April 7, 2011

FARELLA BRAUN + MARTEL LLP

By: /s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG
Counsel for Amici Curiae
National Consumers League
Consumers Union of United States, Inc.
Consumer Action
United States Student Association

26567\2545012.1

AFFIDAVIT OF ANTHONY P. SCHOENBERG

Anthony P. Schoenberg declares and states, under penalty of perjury
under the laws of the United States and the State of California, as follows:
1.

I am a partner in the law firm of Farella Braun + Martel

LLP, counsel to amici curiae the National Consumers League, Consumers
Union of United States, Inc., Consumer Action, and the United States
Student Association. I am admitted to practice before the Untied States
Court of Appeals for the Second Circuit. The facts stated in this affidavit are
within my personal knowledge.
2.

Attached as Exhibit 1 to this affidavit is the proposed Brief

of Amici Curiae National Consumers League, Consumers Union of United
States, Inc., Consumer Action, and United States Student Association in
Support of Appellees.
3.

Counsel for appellees in cases No. 10-3270 and No. 10-3342

consented on March 31, 2011 to the filing of amici’s brief.
4.

Pursuant to my request, counsel for appellants in cases No.

10-3270 and No. 10-3342 consented, on March 31, 2011 and April 5, 2011
respectively, to the filing of amici’s brief.
Dated: April 7, 2011
/s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG
26567\2545012.1

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of April, 2011, a true and correct
copy of the foregoing Motion of National Consumers League, Consumers
Union of United States, Inc., Consumer Action, and United States Student
Association for Leave to File Brief of Amici Curiae Supporting of
Appellees; Memorandum in Support thereof; and Affidavit of Anthony P.
Schoenberg, including Exhibit 1, which is the proposed amicus brief, was
served on all counsel of record in this appeal via CM/ECF pursuant to
Second Circuit Rule 25.1(h)(1)-(2).
Dated: April 7, 2011
/s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG

26567\2545012.1

EXHIBIT 1

10-3270-cv
10-3342-cv

d
IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

VIACOM INTERNATIONAL, INC., COMEDY PARTNERS,
COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION,
BLACK ENTERTAINMENT TELEVISION, LLC,
Plaintiffs-Appellants,
(caption continued on inside cover)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR NATIONAL CONSUMERS LEAGUE,
CONSUMERS UNION OF UNITED STATES, INC., CONSUMER
ACTION AND UNITED STATES STUDENT ASSOCIATION
AS AMICI CURIAE SUPPORTING APPELLEES

STEPHANIE P. SKAFF
(Bar No. 183119)
ANTHONY P. SCHOENBERG
(Bar No. 203714)
DEEPAK GUPTA (Bar No. 226991)
DAVID K. ISMAY (Bar No. 243882)
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104
[phone]

April 7, 2011

Counsel for Amici Curiae National
Consumers League, Consumers
Union of United States, Inc.,
Consumer Action and United States
Student Association

—against—
YOUTUBE, INC., YOUTUBE, LLC, GOOGLE, INC.,
Defendants-Appellees.
THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO., CAL IV
ENTERTAINMENT, LLC, CHERRY LANE MUSIC PUBLISHING COMPANY, INC.,
NATIONAL MUSIC PUBLISHERS’ ASSOCIATION, THE RODGERS & HAMMERSTEIN
ORGANIZATION, EDWARD B. MARKS MUSIC COMPANY, FREDDY BIENSTOCK
MUSIC COMPANY, ALLEY MUSIC CORPORATION, X-RAY DOG MUSIC, INC.,
FEDERATION FRANCAISE DE TENNIS, THE MUSIC FORCE MEDIA GROUP LLC,
SIN-DROME RECORDS, LTD., MURBO MUSIC PUBLISHING, INC., STAGE THREE
MUSIC (US), INC., THE MUSIC FORCE, LLC,
Plaintiffs-Appellants,
—against—
YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC.,
Defendants-Appellees.

CORPORATE DISCLOSURE STATEMENTS

Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate
Procedure:
The National Consumers League certifies that it is a privately held
501(c)(3) non-profit corporation organized for the benefit of its members,
that it has no parent or subsidiary corporations, and that no publicly held
company owns 10% or more of its stock.
Consumers Union of United States, Inc., certifies that it is a privately
held 501(c)(3) non-profit corporation organized for the benefit of its
members, that it has no parent or subsidiary corporations, and that no
publicly held company owns 10% or more of its stock.
Consumer Action certifies that it is a privately held 501(c)(3) nonprofit corporation organized for the benefit of its members, that it has no
parent or subsidiary corporations, and that no publicly held company owns
10% or more of its stock.
United States Student Association certifies that it is a privately held
501(c)(3) non-profit corporation organized for the benefit of its members,
that it has no parent or subsidiary corporations, and that no publicly held
company owns 10% or more of its stock.

26567\2545012.1

TABLE OF CONTENTS
Page

INTEREST OF AMICI CURIAE........................................................ 1
ARGUMENT....................................................................................... 4
I.

CONGRESS INTENDED THE DMCA TO STRIKE A
BALANCE THAT PROTECTS CONSUMERS AS
WELL AS COPYRIGHT HOLDERS ...................................... 6

II.

THE CONTINUED VIABILITY OF DMCA’S SAFE
HARBORS IS OF CRITICAL IMPORTANCE TO
CONSUMERS........................................................................... 8
A.

YouTube Provides an Important, Readily
Accessible Forum for Consumer Reviews of
Products and Services ..................................................... 8

B.

In the Absence of Strong Safe Harbor Provisions,
User-Generated Content Websites May Cease to
Exist as a Forum for Consumer Review ....................... 11

C.

The Loss of User-Generated Sites like YouTube
Would Be Devastating for Consumers and the
Market ........................................................................... 12

CONCLUSION.................................................................................. 14
CERTIFICATE OF COMPLIANCE ................................................ 16
CERTIFICATE OF SERVICE.......................................................... 17

26567\2545012.1

i

TABLE OF AUTHORITIES
FEDERAL CASES
Lenz v. Universal Music Corp.,
572 F. Supp. 2d 1150 (N.D. Cal. 2008) ........................................ 10
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007)....................................................... 11
UMG Recordings, Inc. v. Veoh Networks, Inc.,
665 F. Supp. 2d 1099 (C.D. Cal. 2009)......................................... 12
FEDERAL STATUTES
17 U.S.C. §§ 101 et seq. ....................................................................... 3
LEGISLATIVE MATERIALS
H.R. Rep. No. 105-551 (1998) ............................................................. 7
OTHER AUTHORITIES
Edward Lee, Decoding the DMCA Safe Harbors, 32 Colum. J.L. &
Arts 233 (2008).............................................................. 4, 11, 12, 14
Jerome H. Reichmann, Graeme B. Dinwoodie & Pamela Samuelson,
A Reverse Notice and Takedown Regime to Enable Public Interest
Uses of Technically Protected Copyright Works, 22 Berkeley Tech.
& L.J. 981 (2007) ...................................................................... 5, 11

26567\2545012.1

ii

INTEREST OF AMICI CURIAE
Amici curiae the National Consumers League (“NCL”),
Consumers Union of United States, Inc. (“Consumers Union”),
Consumer Action, and the United States Student Association
(“USSA”) respectfully submit this brief in support of appellees.1
NCL is the nation’s oldest consumer organization, representing
consumers and workers on marketplace and workplace issues since its
founding in 1899 by two of the nation’s pioneering social reformers,
Jane Addams and Josephine Lowell. Its mission is to protect and
promote social and economic justice for consumers and workers in the
United States and abroad. To that end NCL provides government,
businesses, and other organizations with the consumer’s perspective
on a wide range of important concerns including developments in
technology.
Founded in 1936 when advertising first flooded the mass
media, Consumers Union is an expert, independent, nonprofit
organization whose mission is to work for a fair, just, and safe

1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and
Second Circuit Rule 29.1(b), amici state that no counsel for a party
has written this brief in whole or in part; and that no person or entity,
other than the amici, the members of amici, or counsel for amici has
made a monetary contribution that was intended to fund the
preparation or submission of this brief.
26567\2545012.1

1

marketplace for all consumers and to empower consumers to protect
themselves. Consumers Union’s own publications, including
Consumer Reports, as well as product review information freely
available on the internet further its mission by providing consumers
with a reliable source of information to help distinguish hype from
fact, and good products from bad.
Consumer Action is a nonprofit organization that has
championed the rights of underrepresented consumers nationwide
since 1971. Throughout its history, the organization has dedicated its
resources to promoting financial literacy and advocating for consumer
rights in both the media and before lawmakers in order to promote
economic justice for all. Among a wide range of other initiatives,
Consumer Action works to promote policies to ensure that consumers
have access to a fast, affordable and open internet that provides a level
playing field for all websites and internet technologies.
USSA is the country’s oldest, largest, and most inclusive
national student-led organization. Its mission is to develop current
and future leaders, and to amplify the student voice at the local, state,
and national levels by mobilizing grassroots power on student issues.
User-generated websites play a critical role in facilitating that mission,
allowing students to speak directly to each other and to decision-

26567\2545012.1

2

makers.
The workers, consumers, and students that amici represent, and
for whom they advocate, depend on the internet as a free and fair
marketplace both for commerce and the exchange of ideas. In this age
of rapidly advancing technology, user-generated content websites like
YouTube have become an indispensable forum for the review and
critique, by and for consumers and citizens alike, of products,
services, and entertainment. These sites play a vital role in ensuring
that workers, consumers, and students have ready access to complete
and accurate information about the goods and services offered in the
marketplace, a core policy goal of amici. Thus the viability of safe
harbors for internet and online service providers such as YouTube, is
an issue of critical interest to amici, their members, and their
constituents.
Amici and their members, then, have a significant interest in the
Court’s resolution of this case and particularly its interpretation the
Copyright Act, 17 U.S.C. §§ 101 et seq. and the Digital Millennium
Copyright Act provisions codified at Section 512 (the “DMCA” or the
“Act”). Amici strongly support the district court’s decision, which
correctly interprets the DMCA in a manner that gives affect to the
plain intent of Congress to preserve the internet as a fair and

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3

functional marketplace while balancing the rights and needs of both
copyright holders and internet users.
ARGUMENT
It is not an overstatement to suggest that this case has the
potential to decide whether the internet continues to be the
transformational forum for the exchange of ideas and the conduct of
commerce that it is today. Since they were enacted just over a decade
ago, the DMCA’s safe harbor provisions have become by far the Act’s
most important provisions.2 Described by some as “the Magna Carta
for Web 2.0,”3 these provisions establish the practical boundaries of
copyright for virtually all commercial websites in the U.S. that
involve user-generated or third-party content.4 And there is a
consensus that, to date, the DMCA safe harbors have been successful
at achieving their central goal: “ensuring that the efficiency of the
Internet will continue to improve and that the variety and quality of
2

See Edward Lee, Decoding the DMCA Safe Harbors, 32 Colum. J.L.
& Arts 233, 233-34 (2008).
3
See id. at 260. “Web 2.0” is commonly understood to refer to the
next generation of internet design which emphasized decentralized
“participatory information sharing, interoperability, user-centered
design, and collaboration” examples of which include social
networking sites, blogs, wikis, video sharing sites, and hosted
services. See, e.g., Wikipedia, Web 2.0,
http://en.wikipedia.org/wiki/Web_2.0 (last accessed Apr. 7, 2011).
4
See id. at 233-34.
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4

services on the Internet will continue to expand.”5 Because this case
will decide how safe the DMCA safe harbor provisions really are,6 it
will also decide the future viability of the participative, interactive
internet as it exists today.
Amici include the nation’s oldest and most active champions of
workers, consumers, and students. Together they share a strong
interest in maintaining the clarity and effectiveness of the safe harbor
provisions and, with them, the strength of the internet as an open and
interactive forum. Today’s internet is not just about movies and
music. It is a crucial engine of the nation’s economy and, thus, a
marketplace not just for ideas and expression, but for meaningful
commerce as well.7
In order for consumers to participate in the market, however,
5

Id. at 260 (quoting S. Rep. No. 105-190, at 8 (1998)); Jerome H.
Reichmann, Graeme B. Dinwoodie & Pamela Samuelson, A Reverse
Notice and Takedown Regime to Enable Public Interest Uses of
Technically Protected Copyright Works, 22 Berkeley Tech. & L.J.
981, 994 (2007).
6
Reichmann, Dinwoodie & Samuelson, supra, at 994.
7
See Allison Enright, Internet Retailer, “E-commerce glows in final
holiday wrap-up reports” (Jan. 5, 2011),
http://www.internetretailer.com/2011/01/05/e-commerce-glows-finalholiday-wrap-reports (last accessed Apr. 7, 2011); Stephanie Clifford,
New York Times, B1, “Retail Sales Rebound, Beating Forecasts”
(Dec. 27, 2010) available at
https://www.nytimes.com/2010/12/28/business/28shop.html (last
accessed Apr. 7, 2011).
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they must trust it. That trust is built, in large part, when consumers
have ready access to complete and accurate information about the
goods and services the market offers. In today’s world, the internet is
a critical source of such information. The internet generally, and usergenerated websites such as YouTube in particular, have become an
indispensable forum for the review and critique, by and for
consumers, of products, services, and entertainment.
It is with that perspective that amici urge the Court to uphold
the district court’s ruling which properly interprets the plain language
of Section 512 of the DMCA.
I.

CONGRESS INTENDED THE DMCA TO STRIKE A
BALANCE THAT PROTECTS CONSUMERS AS WELL
AS COPYRIGHT HOLDERS.
Repeatedly during its consideration of the bills that became the

DMCA, Congress stressed the need to strike a balance that would
protect not only copyright holders but, also, the nation’s consumers.
In this respect amici and Congress share similar goals for, and a
similar understanding of, the DMCA.
Without question, the revolutionary aspect of new digital
technologies was at the forefront of Congress’s consideration when it
passed the DMCA. And it recognized the direct impact this
revolution has on the lives of consumers and the operations of the

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6

commercial marketplace:
Much like the agricultural and industrial revolutions that
preceded it, the digital revolution has unleashed a wave
of economic prosperity and job growth. Today, the
information technology industry is developing versatile
and robust products to enhance the lives of individuals
throughout the world, and our telecommunications
industry is developing new means of distributing
information to these consumers in every part of the
globe. In this environment, the development of new laws
and regulations will have a profound impact on the
growth of electronic commerce and the Internet.
H.R. Rep. No. 105-551 (“House Report”), pt. 2, at 28 (1998).
Congress recognized the need in this new environment for new
legal mechanisms not only to protect authors and copyright holders
from license infringement but also, to “protect consumers from
misinformation.” See House Report, pt. 1, at 10-11. To that end, the
DMCA was intended as a modernization that would “extend[] into the
digital environment the bedrock principle of ‘balance’ in American
intellectual property law for the benefit of both copyright owners and
users.” House Report, p. 2, at 32. And Congress understood the need
for that modernization to include “rules that ensure . . . consumers
have a stake in the growth in electronic commerce.” See id.
The legislative history of the DMCA demonstrates bi-partisan
support for the notion that the Act was intended to strike a balance
that expressly recognized, included, and protected the nation’s
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consumers: “Whatever protections Congress grants should not be
wielded as a club to thwart consumer demand for innovative products,
consumer demand for access to information, consumer demand for
tools to exercise their lawful rights, and consumer expectations that
the people and expertise will exist to service these products.” House
Report, pt. 2 at 87 (Additional comments of Rep. Scott Klug of
Wisconsin and Rep. Rick Boucher of Virginia).
II.

THE CONTINUED VIABILITY OF DMCA’S SAFE
HARBORS IS OF CRITICAL IMPORTANCE TO
CONSUMERS.
A.

YouTube Provides an Important, Readily Accessible
Forum for Consumer Reviews of Products and
Services.

Given the commercial strength and visibility of the
entertainment industry as litigants in notable internet-related copyright
litigation, it would be easy to overlook how valuable the internet is as
a resource for important, non-commercial communication. As longtime advocates for workers, consumers, and students, however, amici
are particularly aware of the role that user-generated content—and
particularly that hosted by YouTube—plays in the larger world of
consumer review, critique, and education.
YouTube is an important forum for consumers to publish their
own reviews of products and services across the entirety of today’s

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commercial market. As a rough gauge, a search for the term
“consumer review” on YouTube returns on the order of 18,000 hits;
similar searches for the terms “product review” and “movie review”
return approximately 100,000 and 1,430,000 hits respectively.8 That
volume of consumer review content reflects the fact that, even more
than traditional consumer review sources (e.g., print or word-ofmouth), user-generated content can be published on YouTube by
consumers themselves, virtually free of cost, and made available
almost instantaneously and world-wide. And where such reviews
involve, or directly target, copyrighted material, the importance of the
DMCA’s balanced structure becomes apparent
A quick search on YouTube reveals countless user-generated
consumer reviews that include, or directly target, copyrighted material
in their review of a product or service. For example, numerous
reviews that comment on the effectiveness of prescription drugs
involve the re-broadcast, in part or in its entirety, of one or more of
the drug manufacturer’s television advertisements.9 Others that
review consumer products include, as part of product demonstrations,

8

See http://www.youtube.com (last accessed Apr. 7, 2011).
See, e.g., HealthRanger, Vytorin Scientific Fraud and Parody
Cholesterol Ad, http://www.youtube.com/watch?v=rwendcLch-4 (last
accessed Apr. 7, 2011).
9

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the re-broadcast of copyrighted on-line material.10 And some include
the re-broadcast of copyrighted material (e.g., video game software,
movies, or music) because it is the direct subject of their review and
commentary.11 There are countless other examples.
Although most likely protected by the fair use doctrine, which
must be considered by copyright holders in issuing take-down notices,
see, e.g., Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D.
Cal. 2008), such reviews would likely disappear from the internet in
the absence of strong and clear safe harbor provisions. They would
most likely either be removed proactively by internet or online service
providers, as appellants’ argument suggests they should be, or have no
readily-available forum as, out of an abundance of caution, service
providers refused to host such potentially infringing user-generated
material.12
10

See, e.g., The Digital Lifestyle, tDL Product Review: Nike Plus
Sport Kit, http://www.youtube.com/watch?v=V5f6YoEN01E (last
accessed Apr. 7, 2011).
11
See, e.g., Machinima.com, Video Game Review: Dante's Inferno:
Video Game Review (8.5/10) S02E11,
http://www.youtube.com/watch?v=iNu-FiQd5TE (last accessed Apr.
7, 2011); Indy Mogul, Beyond the Trailer: Battle Los Angeles Movie
Review, http://www.youtube.com/watch?v=9WcTDICtqp8&list=SL
(last accessed Apr. 7, 2011).
12
Although the fair use of copyrighted material for critique is well
established, it can only be raised after the fact as a defense, and is the
subject of a multi-prong, variably-applied interpretive test. See, e.g.,
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10

B.

In the Absence of Strong Safe Harbor Provisions,
User-Generated Content Websites May Cease to Exist
as a Forum for Consumer Review.

The DMCA safe harbor provisions exist in order to address a
specific dual-use technology problem. While service providers, like
YouTube, that welcome and facilitate user-generated content can
become unwitting intermediaries for the infringing acts of others, they
also provide a valuable service for copyright holders themselves as
well as those—like consumers and students—who are engaging in the
fair use of copyrighted materials.13 There is a consensus that these
provisions have achieved a “relatively balanced and workable
solution” to that problem.14
Copyright owners have incentives to monitor Internet
sites for infringing materials and to provide appropriately
detailed information to [service providers] so that the
infringing material can be taken down. . . . [service
providers] have incentives to cooperate with copyright
owners in the notice and takedown process and to
terminate repeat infringers lest they forfeit the safe
harbors provided by the DMCA.15
Appellants’ argument threatens that workable balance because,

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163-68 (9th
Cir. 2007).
13
See Reichmann, Dinwoodie & Samuelson, supra, at 938, 989-994.
14
Id. at 994; Lee, supra, at 260.
15
Reichmann, Dinwoodie & Samuelson, supra, at 993-94.
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if adopted, it would render the DMCA safe harbors a nullity.16 As
“[v]irtually all [service providers] that host third-party content . . .
host such content so that it can be shared,” if service providers lose
the DMCA’s protections for storing material “at the direction of the
user,” websites like YouTube almost certainly will be forced to shut
down as the cost and burden of policing user-generated content
became commercially unsustainable.17 That result would be
devastating to the nation’s consumers, students and others, who rely
on the internet as an important resource for sharing critical
information about products, services, and entertainment.
C.

The Loss of User-Generated Sites like YouTube
Would Be Devastating for Consumers and the
Market.

In addition to the potential loss of YouTube as an important
forum for consumer review of products, services, and entertainment,
the loss of user-generated sites in general would have a more
generalized and widespread impact on consumers and the market.
Websites like YouTube have revolutionized the media by
democratizing it. There is no doubt that this revolution has benefited

16

See Lee, supra, at 261 (favorably analyzing UMG Recordings, Inc.
v. Veoh Networks, Inc., 665 F. Supp. 2d 1099 (C.D. Cal. 2009), which
was expressly discussed by the district court in this case).
17
See Lee, supra, at 261, 267.
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independent authors, film-makers, and musicians whose success is
now determined more by talent and popularity than by the whim of
media-outlet gatekeepers. But this democratization of the media has
also directly and undoubtedly benefited their audience—the workers,
consumers, and students that amici represent.
A few minutes of searching the internet generally, or usergenerated sites like YouTube specifically, confirms the vast array of
content now available for general consumption. The breadth of
subjects and tastes addressed is, quite simply, stunning. Outside of
the realm of consumer review and critique, these sites provide a wideranging forum for product-related communication, such as “do-ityourself” maintenance and repair,18 as well as product-related
recreational expression, like crowd-sourced movie reviews, and
entertainment- and sports-related fan sites.19 Amici strongly believe
18

Lee Waterman, iPhone 3G / 3GS Glass Digitizer Replacement
Repair HD Tutorial DIY Complete,
http://www.youtube.com/watch?v=4mboB8p-sdw (last accessed Apr.
7, 2011); Richpin, Windshield Wiper Arm Repair,
http://www.youtube.com/watch?v=b5mh-OrFdnc (last accessed Apr.
7, 2011); Uncleharrytech, Kenmore Washer Repair,
http://www.youtube.com/watch?v=FNRd04vwc4Y (last accessed Apr.
7, 2011).
19
See, e.g., Fan Sites Network, Hosted Sites, http://www.fansites.org/hosted-sites (indicating over 1,600 hosted entertainment and
sports celebrity, movie, music, and television show fan sites) (last
accessed Apr. 7, 2011).
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that their constituents—the nation’s workers, consumers, and
students—benefit directly from such a broad and deep range of
choice.
Thus, because the loss of DMCA’s clear and effective safe
harbor provisions would likely result in the widespread loss of usergenerated content websites,20 it would likely also have a devastating
impact on consumers and other internet users, far beyond the realm of
fair-use review and commentary.
CONCLUSION
In addition to those of the parties, the Court’s decision in this
case will directly impact the interests of millions of workers,
consumers, and students across the nation. User-generated websites
such as YouTube are an indispensable forum for the rapid, low-cost
exchange of information by and for consumers, including the public
dissemination of review and critique of products, services, and
entertainment. In this regard, these websites help to ensure, in a
material way, that workers, consumers, and students have ready
access to complete and accurate information about the goods and
services offered in the marketplace.
In passing the DMCA, Congress recognized the social and
20

See Lee, supra, at 261, 267.

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economic value of such websites. See House Report, pt. 2, at 28. It
also recognized the need to ensure continued consumer participation
in the digital revolution. Id. at 32. As a result, it sought to create a
balanced and workable system that would allow such sites to flourish
while protecting the rights of copyright holders. There is a consensus
that the safe harbor provisions at issue have successfully achieved that
balance.
On behalf of its member and on behalf of the nation’s workers,
consumers, and students, amici urge the Court to ensure that balance
is maintained. Judge Stanton properly interpreted both Section 521
and relevant case law and their application to the facts of this case.
The opinion of the district court should be affirmed.
Dated: April 7, 2011

FARELLA BRAUN + MARTEL LLP
By: /s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG
Stephanie P. Skaff (Bar No. 183119)
Anthony P. Schoenberg (Bar No. 203714)
Deepak Gupta (Bar No. 226991)
David K. Ismay (Bar No. 243882)
Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Counsel for Amici Curiae National
Consumers League, Consumers Union of
United States, Inc., Consumer Action
United States Student Association

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32 of the Federal Rules of Appellate
Procedure, I certify that:
1.

This brief complies with the type-volume limitation of

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because
this brief contains 3,019 words, excluding the parts of the brief
exempted by Rule 32(a)(7)(B)(iii); and
2.

This brief complies with the typeface requirements of

Rule 32(a)(5) and the type style requirements of Rule 32(a)(6)
because this brief has been prepared in a proportionally spaced
typeface using Microsoft® Word 2002 in 14-point Times New
Roman.
Dated: April 7, 2011
/s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG

26567\2545012.1

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CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of April, 2011, a true and
correct copy of the foregoing Brief for National Consumers League,
Consumers Union of United States, Inc., Consumer Action, and
United States Student Association as Amici Curiae Supporting
Appellees was served on all counsel of record in this appeal via
CM/ECF pursuant to Second Circuit Rule 25.1(h)(1)-(2).
Dated: April 7, 2011
/s/ Anthony P. Schoenberg
ANTHONY P. SCHOENBERG

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