Viacom International, Inc. v. Youtube, Inc.

Filing 422

FRAP 28(j) LETTER, dated 06/17/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 06/17/2011 by CM/ECF.[318585] [10-3270]

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June 17, 2011

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Andrew H. Schapiro

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
Re:

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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. 103342

Dear Ms. Holmes and Ms. Gay:
YouTube writes in response to Appellants’ 28(j) letter dated June 14, 2011.
The Supreme Court’s decision in Global-Tech does not support Appellants’ efforts to
disqualify YouTube from DMCA protection on the basis of the willful-blindness
doctrine.
Global-Tech is a patent case decided under 35 U.S.C. §271(b). It is not a
copyright case, and does not address the DMCA in any way. There are important
differences between the DMCA and §271(b). While §271(b) is silent about
knowledge, the DMCA has express provisions governing knowledge of infringement,
including a specific statutory alternative to actual knowledge (§512(c)(1)(A)). The
DMCA’s knowledge provisions also must be interpreted consistently with another
provision (§512(m)), which relieves service providers of any obligation to
affirmatively seek facts indicating infringing activity. Section 271(b) has nothing
like that. Consequently, the Court’s observation in Global-Tech (at 12) that it could
“see no reason why” a willful-blindness doctrine derived from criminal law should
not apply to §271(b) does not extend to the DMCA. There are compelling reasons
why an extra-statutory alternative to actual knowledge should not be engrafted
onto the carefully calibrated DMCA framework. YouTube Br. 37-40.
But even if Global-Tech’s conception of willful blindness did apply, it would
make no difference in this case. The DMCA’s knowledge provisions still would
require a showing as to particular infringing material, and generalized knowledge

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Mayer Brown LLP
Deborah Holmes & Kimberly Gay
June 17, 2011
Page 2
of unspecified infringement still would be insufficient. YouTube Br. 29-34; cf.
Global-Tech Op. 15-16 (assessing defendant’s willful blindness as to a particular
piece of intellectual property). Moreover, the Supreme Court’s standard for willful
blindness is demanding. It requires a “subjective belief” not simply of a “known
risk,” but of a “high probability that a fact exists.” Global-Tech Op. 13-14. And it
requires not merely “deliberate indifference” to the likelihood of infringement, but
“active efforts … to avoid knowing about the infringing nature of the activities.” Id.
at 14. The Court explained that this formulation gives “willful blindness an
appropriately limited scope that surpasses recklessness and negligence.” Id. As
discussed in our brief, Appellants offer no evidence that would satisfy that rigorous
test. YouTube Br. 40-53.
Respectfully submitted,
/s Andrew H. Schapiro
Andrew H. Schapiro
Counsel for Defendants-Appellees