Viacom International, Inc. v. Youtube, Inc.

Filing 476

AMICUS BRIEF, on behalf of Amicus Curiae Vobile International Inc., FILED. Service date 09/28/2011 by CM/ECF.[403568] [10-3270]

10-3270;
10-3342
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION,
INC., PARAMOUNT PICTURES CORPORATION, BLACK ENTERTAINMENT TELEVISION
LLC,
Plaintiffs-Appellants,
(caption continued on inside cover)
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF OF AMICUS CURIAE VOBILE, INC. PROVIDING THE COURT
WITH INFORMATION ONLY AND TAKING NO POSITION AS TO THE
MERIT OF THIS APPEAL
Stephen M. Wurzburg
PILLSBURY WINTHROP SHAW
PITTMAN LLP
2475 Hanover Street
Palo Alto, CA 94304
[phone]
Attorneys for Amicus Curiae
Vobile, Inc.

V.

YOUTUBE, INC., YOUTUBE, LLC, GOOGLE, INC.,
Defendants-Appellees.
_______________
THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, on behalf of themselves
and all others similarly situated, BOURNE CO., CAL IV ENTERTAINMENT, LLC,
CHERRY LANE MUSIC PUBLISHING COMPANY, INC., NATIONAL MUSIC PUBLISHERS’
ASSOCIATION, THE RODGERS & HAMMERSTEIN ORGANIZATION, EDWARD B. MARKS
MUSIC COMPANY, FREDDY BIENSTOCK MUSIC COMPANY, dba Bienstock Publishing
Company, ALLEY MUSIC CORPORATION, X-RAY DOG MUSIC, INC., FEDERATION
FRANCAISE DE TENNIS, THE MUSIC FORCE MEDIA GROUP LLC, SIN-DROME
RECORDS, LTD., on behalf of themselves and all others similarly situated, MURBO
MUSIC PUBLISHING, INC., STAGE THREE MUSIC (US), INC., THE MUSIC FORCE LLC,
Plaintiffs-Appellants,
ROBERT TUR, dba Los Angeles News Service, THE SCOTTISH PREMIER LEAGUE
LIMITED,
Plaintiffs,
V.

YOUTUBE, INC., YOUTUBE, LLC, GOOGLE, INC.,
Defendants-Appellees.
_______________

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amicus
Curiae Vobile, Inc., a nongovernmental entity which is not a party to this
proceeding, by and through its counsel, hereby submits its Corporate Disclosure
Statement and states as follows: Vobile, Inc., a California corporation, is a whollyowned subsidiary of Vobile Co., Ltd., a privately-owned Cayman Islands
company. No publicly held corporation holds 10% or more of its stock.

TABLE OF CONTENTS
Page
INTRODUCTION AND INTEREST OF AMICUS CURIAE .................................. 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 3
CONCLUSION.......................................................................................................... 6

i

TABLE OF AUTHORITIES
CASES
UMG Recordings, Inc. v. Veoh Networks, Inc.,
665 F. Supp. 2d 1099, 1116-18 (C.D. Cal. 2009) ...........................................4
OTHER SOURCES
Peter Burrows, Which no-name startup is making a name for itself with
Hollywood’s anti-piracy police?, Bloomberg Businessweek,
http://www.businessweek.com/the_thread/techbeat/archives/2007/05/
which_no-name_startup_is_making_a_name_for_itself_with_
hollywoods_anti-piracy_police.html, May 31, 2007.......................................3
Peter Burrows, Video Piracy’s Olympic Showdown, Bloomberg
Businessweek,
http://www.businessweek.com/magazine/content/08_23/b4087073685
542.htm?chan=technology_technology+index+page_top+stories, May
29, 2008 ...........................................................................................................2
Owen Fletcher, Chinese YouTube rival adopts U.S. firm’s copyright filter,
Network World,
http://edge.networkworld.com/news/2009/032409-chinese-youtuberival-adopts-us.html, March 24, 2009 .............................................................1
Jolie O’Dell, DRM for Real-Time Media: Justin.tv Now Protecting Video
Streams With Digital Fingerprinting, Read Write Web,
http://www.readwriteweb.com/archives/justintv_protecting_copyright
ed_media_streams_with.php, November 12, 2009 .........................................1
Brad Stone, One Anti-Piracy System to Rule Them All, New York Times,
http://bits.blogs.nytimes.com/2007/09/21/one-anti-piracy-system-torule-them-all/, September 21, 2007 .................................................................3
EETIMES Online, Vobile Announces Landmark Deployment of
VideoDNA™ Content Identification and Management System,
http://www.vobileinc.com/files/In%20The%20News/20070501_Vobil
e%20Announces%20Landmark%20Deployment%20of%20VideoDN
A%28TM%29%20Content%20Identification%20and%20Managemen
t%20System%20-%20EETimes.pdf, May 7, 2007 .....................................1, 2
ii

INTRODUCTION AND INTEREST OF AMICUS CURIAE 1
Amicus Curiae Vobile, Inc. (“Vobile”), a California corporation, has core
digital content fingerprinting and identification technology which allows Vobile
to provide authentication, management, tracking, and other services in order to
help content owners and publishers (primarily website operators) to protect,
measure, and monetize their digital content. Vobile’s services can assist owners
and publishers of digital content that consists of images, music, and video. Using
its patent-pending VDNA®/VideoDNA™ digital content fingerprinting
technology and associated tracking, webcrawling, monetization, and other
software, Vobile has performed services for content owners such as the six major
studios (including Appellant Viacom) and four leading broadcast television
networks, as well as for publishers such as Justin.tv,2 Ustream, and several
leading websites in China among others.3 Vobile also has performed services in

1

2

3

This brief was not authored in whole or in part by any party to the action nor
did any such party or its counsel contribute money that was intended to fund
preparing or submitting this brief. There is no person other than the amicus
curiae who contributed money that was intended to fund preparing or
submitting this brief.
See, e.g., http://www.readwriteweb.com/archives/justintv_protecting_
copyrighted_media_streams_with.php (last viewed December 10, 2010).
See, e.g., http://edge.networkworld.com/news/2009/032409-chineseyoutube-rival-adopts-us.html and http://www.vobileinc.com/files/In%20The%
20News/20070501_Vobile%20Announces%20Landmark%20Deployment%20
of%20VideoDNA%28TM%29%20Content%20Identification%20and%20Man
1

connection with live sporting events; for example, China’s CCTV employed
Vobile to help prevent unauthorized online distribution in China of the 2008
Beijing Olympics4 as have several major US professional sports leagues.
Vobile is not filing this brief in support of either party in the case and takes
no position on the legal issues in this case. Vobile is submitting this Brief to
provide information to this Court about the availability and reliability of
automated digital video content identification and the scalability and robust
nature of such technology. Vobile is concurrently filing a motion for leave to file
this Brief, as Appellants consented to its filing but Appellees did not.
SUMMARY OF ARGUMENT
There is currently available and in widespread commercial use automated
technology which reliably identifies infringing digital audio and video content.
This technology can be used by website operators acting as publishers to filter
content before posting and may be used by content owners to screen content
already posted on the web to identify infringing content. In both cases, the
content owner can then determine what actions to take—for example, whether to

4

agement%20System%20-%20EETimes.pdf (both last viewed December 10,
2010).
See e.g., http://www.businessweek.com/magazine/content/08_23/b40870736
85542.htm?chan=technology_technology+index+page_top+stories (last viewed
December 10, 2010).
2

allow/remove the posting or to attempt to monetize it through advertising or other
means.
ARGUMENT
Vobile has built a successful business based on automated content
identification. Vobile’s services were tested in 2006-2007 by MovieLabs and the
Motion Picture Association and determined to be best of class.5 One of the key
aspects of these tests was the rate of false positives (videos determined to be
infringing that were not) and false negatives (videos which were infringing but
were determined not be). Since then, all six major studios have become
customers of Vobile along with four leading networks, among others.
Using its proprietary VDNA®/VideoDNA™ algorithm and technology,
Vobile and its customers have fingerprinted a few hundred thousand titles,
including movies and television programs.
Website operators acting as publishers have used Vobile’s automated
technology to screen tens of thousands of videos every day which users were
seeking to upload. Of these screened videos, Vobile’s technology and software
identified infringed titles that Vobile had fingerprinted. The website owners then
5

See, e.g., http://www.businessweek.com/the_thread/techbeat/archives/2007/05/
which_no-name_startup_is_making_a_name_for_itself_with_hollywoods_antipiracy_police.html and http://bits.blogs.nytimes.com/2007/09/21/
one-anti-piracy-system-to-rule-them-all/ (both last viewed December 10,
2010).
3

took a variety of actions depending upon the rules specified by the content owner,
including the decision not to post the infringing content.
Vobile’s technology can also be used by content owners to search for
infringing content after it has already been posted by crawling the web and
reviewing the content located. In this manner, Vobile’s automated technology
has checked about one billion instances of video on websites for infringement and
has located about ten million instances of infringement. Utilizing a special
feature of Vobile’s automated technology, Vobile’s customers have sent out about
three million take-down notices containing the requisite statements concerning
good faith belief that the use is unauthorized and authorization to act on behalf of
the content owner. There have been only several hundred instances where the
user contested the notice, most of which were ultimately taken down. Not one of
the contested cases was caused due to mis-identification stemming from Vobile’s
automated technology.
Vobile has built a successful business valued at tens of millions of dollars
in its most recent round of venture capital financing.
Vobile does not know “the standard of reliability and verifiability required
by the Ninth Circuit in order to justify terminating a user’s account”6 but Vobile

6

See page 28 of the district court’s opinion in this case, quoting UMG
Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1116-18 (C.D.
Cal. 2009).
4

would submit that an automated take-down notice generated by its technology
would meet such standard. Vobile cannot say whether automated technology of
other companies would meet such standard.

5

CONCLUSION
Vobile’s automated technology has been widely adapted to fingerprint
videos and audios and determine matches from streaming video on websites by
website operators and content owners. This technology is reliable and website
operators would be remiss in not taking appropriate actions under the Digital
Millennium Copyright Act against users who received automated notices
generated using this technology. In deciding the issues in this case, this Court
may consider whether website operators acting as publishers are remiss in not
using such technology to screen videos before they allow them to be posted.

Dated: December 10, 2010
PILLSBURY WINTHROP SHAW
PITTMAN LLP

By: /s/ Stephen M. Wurzburg
Stephen M. Wurzburg
2475 Hanover Street
Palo Alto, CA 94304
[phone]
Attorneys for Amicus Curiae
Vobile, Inc.

6

CERTIFICATE OF COMPLIANCE
Certificate of Compliance Pursuant to Fed. R. App. P. 32
for Case Numbers 10-3270; 10-3342
I certify that the attached brief complies with the type-volume limitations of Fed.
R. App. P. 32(a)(7)(B) because it contains 933 words, as recorded in the word
processing program (Microsoft Word 2003) utilized by the firm. This brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2003 in 14 point Times New
Roman font.

December 10, 2010

/s/ Stephen M. Wurzburg
Stephen M. Wurzburg