Viacom International, Inc. v. Youtube, Inc.

Filing 512

FRAP 28(j) LETTER, dated 01/11/2012, on behalf of Appellant Black Entertainment Television, LLC, Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation and Viacom International, Inc., RECEIVED. Service date 01/11/2012 by CM/ECF.[495302] [10-3270]

January 11, 2012

Jenner & Block LLP
1099 New York Avenue, NW
Suite 900
Washington, DC 20001
Tel [phone]
www.jenner.com

VIA ECF

Chicago
Los Angeles
New York
Washington, DC

Paul M. Smith
Tel [phone]
Fax [phone]
[e-mail]

Ms. Deborah Holmes
Case Manager, 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:

Viacom Int’l, Inc., et al. v. YouTube, Inc., et al., No. 10-3270 (argued Oct. 18,
2011 (Cabranes, Miner, Livingston))

Dear Ms. Holmes,
Viacom responds to YouTube’s January 9 letter concerning Wolk v. Kodak Imaging
Network, 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012).
In Wolk, a pro se artist sued two represented corporate defendants for the infringement of
nine of her copyrighted works. Although the limited summary judgment record remains mostly
under seal, the case appears to have involved only cursory discovery and legal argument by the
pro se plaintiff. Thus, the court’s ruling largely adopts its earlier reasoning in denying the
plaintiff’s preliminary injunction motion, a decision that the parties have already addressed in the
merits briefs. See Wolk, 2011 WL 940056 (S.D.N.Y. Mar. 17, 2011).
Knowledge or Awareness: Wolk’s evidence consisted only of 15 takedown notices, 11 of
which were not DMCA-compliant. 2012 WL 11270, at *20. While a takedown notice itself may
not demonstrate a provider’s awareness of other instances of infringement, Viacom proffered
extensive evidence of YouTube’s knowledge of infringement independent of Viacom’s
takedown notices, including incriminating internal emails quantifying the massive infringement
and identifying specific pirated Viacom shows. Viacom Reply at 5-6, 23-24. Viacom also
proffered evidence of willful blindness, which is absent in Wolk. Id. at 18-23.
Control: The court’s conclusion that Photobucket could not feasibly control
infringement, 2012 WL 11270, at *21, was based on the pro se plaintiff’s concession at the
preliminary injunction stage that “video ‘fingerprinting’ technology . . . is very burdensome to
implement and . . . would not be feasible . . . .” 2011 WL 940056, at *6 n.1. That YouTube
selectively deployed digital fingerprinting, by contrast, demonstrates that the technology was a
feasible and effective means of controlling infringement for YouTube. Viacom Reply at 25-31.

Financial benefit: Wolk did not contend that her nine copyrighted works acted as a draw
to Photobucket users, or that Photobucket profited from advertisements appended to her works.
Viacom, however, presented extensive evidence on both points. Viacom Reply at 32-35.
Section 512(m): The court adopted Judge Stanton’s reading of this provision without
engaging in independent analysis or considering how the provision would apply once a website
obtains disqualifying knowledge or awareness of rampant infringement.

Respectfully submitted,
/s/ Paul M. Smith
Paul M. Smith
Counsel for Viacom

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