Viacom International, Inc. v. Youtube, Inc.

Filing 451

FRAP 28(j) LETTER, dated 09/02/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 09/02/2011 by CM/ECF.[381530] [10-3270]

Mayer Brown LLP
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New York, New York 10019-5820

September 2, 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.
10-3342

Dear Ms. Holmes and Ms. Gay:
We write in response to appellants’ August 26, 2011 letter discussing United
States v. Ferguson. Ferguson reiterates the standard for giving a consciousavoidance instruction in a criminal case. It neither adds to nor deviates from
longstanding Second Circuit law to which YouTube has taken no exception, so
appellants’ election to submit a 28(j) letter discussing the decision is puzzling.
In any event, Ferguson’s fact-specific holding that a conscious-avoidance
instruction was proper in light of a series of specific “red flags” regarding the
transactions at issue (slip op. 32-33) has no application here and does not remotely
call into question Judge Stanton’s summary-judgment ruling. As explained in our
brief, there is no basis in the DMCA (or precedent) for importing a broad willful
blindness rule into the statute’s carefully balanced framework. YouTube Br. 37-40.
The DMCA deliberately supplants common-law notions of willful blindness, and
appropriately so given the difficulties that service providers like YouTube would
have divining whether particular material is or is not authorized. (That difficulty
was recognized by Judge Stanton below (SPA-19) and more recently by Judge
Pauley in Capitol Records v. MP3tunes, 07-cv-9931, slip op. at 17.)
The summary-judgment record in this case illustrates the wisdom of the
DMCA’s approach. As we have shown, YouTube is full of indisputably noninfringing material, including countless non-infringing videos containing appellants’
content. YouTube Br. 9-11, 63-66, 88-89. Indeed, even appellants and their lawyers

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Mayer Brown LLP
Deborah Holmes & Kimberly Gay
September 2, 2011
Page 2
have had persistent difficulties determining which YouTube videos they themselves
posted, authorized, or intentionally left up. Id. at 44-53, 66-69.
Finally, the conscious-avoidance doctrine discussed in Ferguson would not
help appellants even if it did apply here. As recently made clear both by the
Supreme Court in Global-Tech v. SEB, 131 S. Ct. 2060, 2070-71 (2011), and by this
Court, common-law willful blindness requires proof that a provider made “active
efforts” to ignore a very significant risk that specific material was infringing.
Tiffany v. eBay, 576 F. Supp. 2d 463, 515, aff’d 600 F.3d 93 (2d Cir. 2010).
Ferguson does not purport to alter that requirement, and appellants cannot come
close to meeting it here. YouTube Br. 40-43.
Respectfully submitted,
/s Andrew H. Schapiro
Andrew H. Schapiro

Counsel for YouTube