Viacom International, Inc. v. Youtube, Inc.

Filing 448

FRAP 28(j) LETTER, dated 08/30/2011, on behalf of Appellant Viacom International, Inc., RECEIVED. Service date 08/30/2011 by CM/ECF.[378826] [10-3270]

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

August 30, 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:
I write in response to Andrew Schapiro’s August 26 letter discussing an interlocutory order
of the district court in Capitol Records, Inc. v. MP3tunes, 07-cv-9931 (S.D.N.Y. Aug. 22,
2011).
YouTube suggests that MP3tunes “confirms YouTube’s approach to the DMCA safe
harbors” (Ltr. 1) because it cites the decision below in this case for the proposition that
service providers that are “aware[] of rampant infringement” nevertheless are entitled to the
safe harbor unless they possess specific knowledge that content of particular web pages is
infringing. Slip op. 16. One just as easily could say that MP3tunes repeats the errors the
district court made here.
Even still, the district court in MP3tunes highlights several distinguishing facts that lead
inexorably to the conclusion that, even if MP3tunes is entitled to the protection of the DMCA
safe harbor, YouTube is not.
At the threshold, while MP3tunes involved storage “lockers” for digital music files, the
copyright infringement alleged by Viacom and the Class Plaintiffs involves much more than
user-directed storage, including YouTube’s unauthorized licensing of the plaintiffs’
copyrights to third parties. Viacom Br. 49-54.
And while MP3tunes claimed it gained no financial benefit directly attributable to
infringement because it had no advertising and its users stored infringing music sideloaded
from the Internet for free, YouTube’s financial benefit is directly tied to advertising and the
quantity of page views, 75%-80% of which, according to YouTube, were of infringing

Ms. Deborah Holmes
August 30, 2011
Page 2

material. Viacom Br. 10, 47-49. Indeed, for a period of time YouTube appended
advertisements directly to infringing videos. Id. at 48.
Finally, while the MP3tunes court concluded that its record largely lacked evidence of
“specific ‘red flag’ knowledge [of infringement] with respect to any particular link,” (slip op.
18), that court did not confront evidence of willful blindness comparable to that present in
the YouTube record. Despite knowing that up to 80% of its views were of infringing
material, YouTube shut down avenues that easily could have allowed it to confirm that its
most popular videos infringed. Viacom Br. 11-14, 34-39. As this Court recently confirmed
in Ferguson, that type of conscious avoidance is equivalent to actual knowledge.
Very truly yours,
/s/ Theodore B. Olson
Theodore B. Olson