Viacom International, Inc. v. Youtube, Inc.

Filing 443

FRAP 28(j) LETTER, dated 08/26/2011, on behalf of Appellant Viacom International, Inc., RECEIVED. Service date 08/26/2011 by CM/ECF.[376152] [10-3270]

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

August 26, 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 advise the Court of the applicability of its recent decision
in United States v. Ferguson, No. 08-6211, to the above-captioned cases. In Ferguson, the
Court reaffirmed that even a criminal statute may be violated “knowingly” if the violator
“‘was aware of a high probability of the fact in dispute and consciously avoided confirming
that fact.’” Slip op. 31-32 (quoting United States v. Quattrone, 441 F.3d 153, 181 (2d Cir.
2006)). The Court explicitly invoked the Supreme Court’s recent decision in Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 & n.9 (2011), in equating the doctrine of
“conscious avoidance” at issue in Ferguson to “willful blindness,” the doctrine at issue in
this case. Id. at 31 n.14. And the Court confirmed that “both actual knowledge and
conscious avoidance” may be proven through evidence of “[r]ed flags about the legitimacy
of a transaction.” Slip op. 38.
Appellants have argued that YouTube’s knowledge of the rampant infringement taking place
on its site is established by its willful blindness to that infringement. See Viacom Br. 34-39;
Premier League Br. 34-36. Ferguson confirms that such conscious avoidance can be
demonstrated not only through evidence of affirmative steps to avoid specific knowledge of
incriminating facts—present in this record, Viacom Br. 11-14—but also through “red flags
about the legitimacy of [] transactions,” which permeate this record. See JAII-47 (“probably
75-80% of our views come from copyrighted material”); JAII159-60.
Ferguson also refutes YouTube’s primary defense to Viacom’s willful-blindness argument,
i.e., that Congress intended the awareness prong of the DMCA safe harbor to replace the
common law doctrine of willful blindness. See YouTube Br. 37-40. The Ferguson Court

Ms. Deborah Holmes
August 26, 2011
Page 2

emphasizes that “conscious avoidance” is merely an alternative means of proving
knowledge; the “government need not choose between an ‘actual knowledge’ and a
‘conscious avoidance’ theory.” Slip op., at 32. In so doing, Ferguson precludes YouTube’s
cramped understanding of the DMCA’s knowledge prong as excluding willful blindness. See
YouTube Br. 38.
The Class Appellants have authorized me to say they join this letter.
Very truly yours,
/s/ Theodore B. Olson
Theodore B. Olson