Viacom International, Inc. v. Youtube, Inc.

Filing 419

FRAP 28(j) LETTER, dated 06/14/2011, on behalf of Appellant Viacom International, Inc., RECEIVED.[315033] [10-3270]

Theodore B. Olson
Direct: +1 202.955.8668
Fax: [phone]
[e-mail]

June 14, 2011
VIA ECF
Ms. Deborah Holmes
Case Manager, Clerk’s Office
United States Court of Appeals for the Second Circuit
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007
Re:

Viacom International, 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:
Pursuant to FRAP 28(j), I write to notify the Court of the Supreme Court’s decision in
Global-Tech Appliances, Inc. v. SEB S.A., No. 10-6 (U.S. May 31, 2011), which is relevant
to Viacom’s argument that YouTube’s willful blindness to the infringing character of videos
on YouTube is sufficient to demonstrate YouTube’s knowledge of infringement. See
Viacom Br. 34-39; Premier League Br. 34-36.
In Global-Tech, the Court held that 35 U.S.C. § 271(b), which prohibits active inducement of
patent infringement, requires knowledge that the induced acts constitute patent infringement.
Slip Op. 10. Despite the absence of any discussion of willful blindness in the statute, the
Court rejected the defendant’s argument that willful blindness was insufficient to
demonstrate knowledge. Given “the long history of willful blindness and its wide
acceptance in the Federal Judiciary,” the Court “c[ould] see no reason why the doctrine
should not apply in civil lawsuits for induced patent infringement.” Id. at 12.
The Court held that for a defendant to be adjudged willfully blind “(1) the defendant must
subjectively believe that there is a high probability that a fact exists and (2) the defendant
must take deliberate actions to avoid learning of that fact.” Id. at 13. “Under this
formulation, a willfully blind defendant is one who takes deliberate actions to avoid
confirming a high probability of wrongdoing and who can almost be said to have actually
known the critical facts.” Id. at 14.
Global-Tech refutes YouTube’s suggestion that the doctrine of willful blindness cannot
apply to the knowledge requirements under the DMCA because the doctrine is “extra-

Ms. Deborah Holmes
June 14, 2011
Page 2

statutory.” YT Br. 39. It also refutes YouTube’s argument that recognizing that willful
blindness is knowledge would impose on all service providers a broad affirmative obligation
to “seek[] facts indicating infringing activity.” Id. at 42. Under Global-Tech, since the
record on summary judgment amply warrants a finding that YouTube knew there was a high
probability that videos were infringing and took deliberate steps to avoid confirming the
infringing character of the videos, summary judgment for YouTube was plainly error.
The Class Appellants have authorized me to say they join this letter.
Very truly yours,
/s/ Theodore B. Olson
Theodore B. Olson