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]

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Theodore B. Olson Direct: +1 202.955.8668 Fax: +1 202.530.9575 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

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