The Football Association Premi v. Youtube, Inc.

Filing 334

REPLY BRIEF, on behalf of Appellant Alley Music Corporation, Bourne Co., Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., Edward B. Marks Music Company, Federation Francaise De Tennis, Freddy Bienstock Music Company, Murbo Music Publishing, Inc., National Music Publishers' Association, Sin-Drome Records, Ltd., Stage Three Music (US), Inc., The Football Association Premier League Limited, The Music Force LLC, The Music Force Media Group LLC, The Rodgers & Hammerstein Organization and X-Ray Dog Music, Inc., FILED. Service date 04/28/2011 by CM/ECF. [275843] [10-3342]

10-3342
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
Max W. Berger
John C. Browne
BERNSTEIN LITOWTIZ BERGER
& GROSSMANN LLP
1285 Avenue of the Americas
New York, NY 10019
[phone]

Charles S. Sims
William M. Hart
Noah Siskind Gitterman
Elizabeth A. Figueira
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
[phone]

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....................................................................iii
I.

YouTube Is Excluded From The Safe Harbor For Its
Deliberate Decisions To Profit From Infringements Of
Class Plaintiffs’ Works ........................................................................ 1

II. YouTube Had Specific Knowledge Or Awareness Of
Infringing Material And Deliberately Chose Not To
Remove It ............................................................................................. 4
A. YouTube presents a false dichotomy between “generalized”
and “item-specific” knowledge....................................................... 4
B. YouTube has specific knowledge or awareness of
infringements, and made deliberate decisions not to act on
that knowledge ................................................................................ 8
C. The knowledge provisions of § 512(c)(1)(A) do not
immunize YouTube’s willful blindness to infringements of
class plaintiffs’ works ................................................................... 12
D. The knowledge provisions of § 512(c)(1)(A) do not
immunize YouTube’s inducement of infringement of class
plaintiffs’ works ............................................................................ 15
E. Class plaintiffs did not engage in licensing sufficient to
deprive YouTube of disqualifying knowledge ............................. 21
III. YouTube Directly Benefitted From And Had
Disqualifying Control Over Infringements Of Class
Plaintiffs’ Works ................................................................................ 24
A. YouTube directly benefitted from infringements ......................... 24
B. YouTube can and does control infringements .............................. 28
C. A properly instructed jury could find disqualifying control......... 31
IV. YouTube’s Knowledge, Control And Deliberate Actions
Are Not Rendered Irrelevant By Section 512(m) .............................. 34
i

TABLE OF CONTENTS
Page
V. YouTube Is Ineligible For The §512(c) Safe Harbor At
The Threshold .................................................................................... 36
A. YouTube’s actions reach well past “storage at the direction
of a user” ....................................................................................... 36
B. YouTube did not reasonably implement its infringement
policy............................................................................................. 38
CONCLUSION............................................................................................. 39

ii

TABLE OF AUTHORITIES

Page(s)
CASES
Arista Records LLC v. Doe,
604 F.3d 110 (2d Cir. 2010) ...............................................................................29
Arista Records LLC v. Lime Grp. LLC,
715 F. Supp. 2d 481 (S.D.N.Y. 2010) ................................................................12
Columbia Pictures Indus., Inc. v. Fung,
2009 WL 6355911 (C.D. Cal. Dec. 21, 2009) ...................................................16
Ellison v. Robertson,
357 F.3d 1072 (9th Cir. 2004) ............................................................................26
Fonovisa, Inc. v. Cherry Auction, Inc.,
76 F.3d 259 (9th Cir. 1996) ................................................................................25
Gershwin Publishing Corp. v. Columbia Artists Management Inc.,
443 F.2d 1159 (1971) .........................................................................................29
In re Aimster Copyright Litig.,
334 F.3d 643 (7th Cir. 2003) .......................................................................passim
MGM Studios Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005).....................................................................................passim
Perfect 10, Inc. v. CCBill LLC,
488 F.3d 1102 (9th Cir. 2007) ............................................................................38
United States v. Fuller,
627 F.3d 499 (2d Cir. 2010) ...............................................................................35

STATUTES
17 U.S.C. § 512(c) ............................................................................................passim
17 U.S.C. § 512(c)(1)(A) ..................................................................................passim
iii

TABLE OF AUTHORITIES
17 U.S.C. § 512(c)(1)(B) ..................................................................................passim
17 U.S.C. § 512(c)(1)(C) ...........................................................................................5
17 U.S.C. § 512(c)(3)(B)(i) ...................................................................................5, 6
17 U.S.C. § 512(i)(1)(A)....................................................................................16, 38
17 U.S.C. §512(m) .......................................................................................34, 35, 36

LEGISLATIVE MATERIALS
H.R. Rep. 105-551(I) (1998) .............................................................................30, 35
H.R. Rep. 105-551(II) (1998) ...........................................................................passim
S. Rep. 105-190 (1998)......................................................................................24, 35

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1990) ...................................................................28
3 Melville B. Nimmer and David Nimmer,
Nimmer On Copyright, § 12B.06[A].......................................................................28
3 Melville B. Nimmer and David Nimmer,
Nimmer On Copyright, § 12B.09[B].......................................................................35
3 Melville B. Nimmer and David Nimmer,
Nimmer On Copyright, § 12.11[F] ..........................................................................28
3 Melville B. Nimmer and David Nimmer,
Nimmer On Copyright, § 17.07[B]..........................................................................22
Patry On Copyright, § 24:7......................................................................................22

iv

I.

YouTube Is Excluded From The Safe Harbor For Its Deliberate
Decisions To Profit From Infringements Of Class Plaintiffs’
Works
By disputing at length the meaning of critical internal communica-

tions evidencing their knowledge of widespread infringement and their
intent to foster and capitalize on it, YouTube’s brief amounts to an unintended yet unavoidable confession that summary judgment was inappropriate. The court below considered none of this evidence of YouTube’s
culpability, apart from recognizing that YouTube “welcomed” infringements
because they increased the value of its website. Instead, the court fashioned
a bright-line rule requiring “item specific” knowledge of infringement that,
contrary to the plain terms of the §512(c) safe harbor, would provide categorical protection to defendants no matter how egregious their behavior,
how pervasive their knowledge or how extensive their benefit from and
control over these infringing activities, so long as they respond to takedown
notices they eventually receive from copyright owners.
Defendants and their amici also claim that it is not just defendants’
profit-making infringing enterprise at stake in this case, but the fate of
myriad other Internet businesses whose very existence depends on a rule that
nothing but a takedown notice ultimately matters. But these other businesses, who advocate YouTube’s “notice or nothing” rule, presumably did not

1

launch their websites by relying on and encouraging the presence of
infringing material for the express purpose of capitalizing on the creative
expression of others. They should therefore not feel threatened by a safe
harbor provision that treats such facts as relevant.
The political messages, how-to videos, product reviews and home
movies that defendants claim afford them enormous cultural legitimacy are
simply not implicated in this case; the vast majority of infringements in suit
are well-known songs or sports match footage that do not, even colorably,
constitute a non-infringing use, but have fueled YouTube’s growth and
prosperity. The significance of these infringements is best measured by the
unvarnished contemporaneous assessments made by defendants and their
advisors (IIIA352 ¶6; IIA47; IA857; IIA211-214; IA537), not by the entirely
unsubstantiated claims defendants promote on appeal about the amount or
popularity of non-infringing content on YouTube. Hypothetical risks to such
non-infringing content cannot relieve YouTube of its obligations under the
statute to mitigate infringement, and do not begin to counter the record
evidence of defendants’ extensive knowledge of and control over such
infringements, conduct that has characterized YouTube from its inception.
It is precisely this evidence that makes YouTube culpable in this case,
and which distinguishes it from other websites that can truthfully claim to
2

have no knowledge of, or control over and benefit from, the infringing
activities on their sites. With specific knowledge of the prevalence of class
plaintiffs’ works on YouTube, defendants chose to leave that material on the
site, and encourage more of it, in order to attract viewers, knowing full well
that the material was unlicensed and infringing. YouTube did so to such an
extent that executives of Google, which purchased YouTube for $1.65
billion in 2006, described YouTube as being “completely sustained by
pirated content.” (emphasis added) IA527; see also IA399; IA540; IA587588. This case is therefore not about “generalized knowledge,” and it is not
about the Internet generally – it is about YouTube’s specific and deliberate
acts to capitalize on and profit from infringements.
The §512(c) safe harbor requires that a court consider evidence
showing a website’s knowledge or awareness of infringing activity
(§512(c)(1)(A)) and its direct benefit from and control over infringing
activity (§512(c)(1)(B)), as well as threshold questions concerning its
conduct going beyond storage-related activities, and the reasonableness of
its repeat infringer policy. Defendants’ unwarranted invitation to reduce all
of §512(c) to a ‘notice and takedown’ statute, effectively ignoring §512(c)’s
subsections as well as a record showing defendants’ deliberate and

3

systematic steps to accumulate and profit from the vast amount of infringing
material on their site, should be rejected, and the judgment below reversed.
II.

YouTube Had Specific Knowledge Or Awareness Of Infringing
Material And Deliberately Chose Not To Remove It
A.

YouTube presents a false dichotomy between “generalized”
and “item-specific” knowledge

YouTube argues for (and the district court endorsed) a standard for
the DMCA’s knowledge and awareness provisions (§§512(c)(1)(A)(i) and
(ii)) that requires “knowledge of specific and identifiable infringements of
particular individual items,” complaining that otherwise defendants would
lose immunity for mere “generalized awareness that unidentified
infringements may be somewhere….” YT Br. 29. This distorts class
plaintiffs’ arguments, misreads §512(c)(1)(A), and dodges the record
evidence of YouTube’s culpable behavior, which encompasses a whole
range of deliberate and wrongful actions constituting far more than
“generalized awareness.” YouTube knew that class plaintiffs’ works were
being infringed on its site, and could and did identify them for business
reasons, but it deliberately chose not to remove them (or make tools
available to plaintiffs so plaintiffs could remove them) because YouTube
wanted to profit from them. Opening Br. 13-19, 20-24. Indeed, this was a
central element of its business plan. Id. To the extent (if at all) YouTube

4

disputes these material facts with admissible evidence (rather than rhetoric),
that is a matter for trial; there is no statutory justification for rendering these
facts categorically irrelevant, as the district court did and as YouTube argues
this court should do on this appeal.
Although YouTube conclusorily asserts that its and the district court’s
interpretation is not so narrow that it makes §512(c)(1)(A) entirely
duplicative of the notice and takedown requirement of §512(c)(1)(C) (YT
Br. 34-35), YouTube does not provide a single example of disqualifying
knowledge or awareness other than a DMCA-qualifying takedown notice.
Indeed, YouTube’s amici dispense with even the pretense that anything
other than a takedown notice should amount to disqualifying knowledge.
See, e.g., Brief of MP3tunes, at 25 (“the only possible way to police
copyright infringement on the Internet is to leave it to the copyright owner to
monitor for infringement of their works by using the take-down procedures
enacted […] in the DMCA.”); Brief of Intellectual Property and Internet
Law Professors, at 25 (“[i]t is the copyright holder, and only the copyright
holder” who has information that any particular video is infringing).
Seizing on §512(c)(3)(B)(i), YouTube warns that disqualifying
knowledge other than that provided by a valid takedown notice (whatever it

5

might be) cannot come from the copyright holder (YT Br. 35 n.9).1 Yet at
the same time, YouTube insists that there can be no disqualifying knowledge
where “circumstances leave uncertain” any hypothetical questions about the
licensing or fair use of any individual clip, questions that “[c]ontent owners
are best equipped to determine….” YT Br. 33-34, 39. Acceptance of this
approach would necessarily leave §512(c)(1)(A) with no function at all.
YouTube further argues that anything other than item-specific
knowledge, meaning “knowledge of specific and identifiable infringements
of particular individual items” (YT Br. 29), would be inconsistent with the
requirement in §512(c)(1)(A)(iii) to act expeditiously to remove the
infringing material once there is knowledge or awareness of it. YT Br. 30.
But there is no inconsistency. Although §512(c)(1)(A) does not require
YouTube to do something it cannot do, or make YouTube liable for
something it does not know about, it does not authorize YouTube to ignore
all knowledge other than that coming from item- and location-specific
notices. For example, if YouTube knows that Premier League clips are
1

Section 512(c)(3)(B)(i) says only that a failed “notification from a copyright owner” under §512(c)(3)(A) cannot be converted into disqualifying
knowledge or awareness under §512(c)(1)(A). It does not say, as YouTube
claims, that no “information from a copyright holder” can ever be considered in applying the knowledge or awareness provisions of
§512(c)(1)(A). YT Br. 35 n.9. Moreover, even when YouTube’s users
notified it of infringements, YouTube’s policy was to ignore them. IIIA239;
IIIA313; VA180; IA283 ¶¶117-118.
6

unauthorized (it does – IIIA167 ¶22; IIIA239; IIIA251-252) and can locate
those clips (it readily can – IIIA256, IIIA247) YouTube must use that
demonstrated knowledge and ability to prevent those clips from being
uploaded or further exploited if it wants the protection of the safe harbor.
Nothing in the statute absolves YouTube of this responsibility simply
because it cannot find all of the infringements, or because it might inadvertently block a non-infringing clip in the process of removing thousands of
infringing ones. YouTube already blocks lawful speech on its site in a variety of ways (infra, note 12). Though it might make YouTube less profitable,
requiring that YouTube take the same action to remove obviously infringing
professional sports and music content in order to invoke safe harbor protection, as prescribed in the statute, would not imperil YouTube’s functioning,
or that of the Internet generally.
YouTube’s argument that the “red flag” provision of §512(c)(1)(A)(ii)
does not apply when a service provider has only “generalized information
that unspecified infringement is occurring somewhere” (YT Br. 34) is a
straw man. Section 512(c)(1)(A)(ii) withholds immunity when, as here, the
service provider is “aware of facts or circumstances from which infringing
activity is apparent.” When it is apparent to a provider like YouTube that
certain clips are infringing (for example, serial uploads of a pirated French
7

Open match (IIIA318; IIIA385-386, ¶57)) and the provider is in fact
targeting and tracking such clips (IIIA295; IIIA298), it must do what it can
to take them down if it wants the safe harbor’s protections. Opening Br. 3637. This does not require YouTube to conduct an “investigation” into facts
and circumstances (YT Br. 34). It only requires acting on infringements that
are “apparent to a reasonable person” (H.R. Rep. 105-551(II) (1998) at 53)
and that, as the undisputed facts show, YouTube has a demonstrated ability
to locate. Opening Br. 15-16, 20-24.
Nothing in the Senate report on which YouTube relies (see YT Br. 32
n.8), or in the two House reports, suggests that YouTube is excused from
acting until it has perfectly accurate item- and location-specific knowledge.
In fact, the one example in the reports of red flag knowledge is plainly not
limited to perfectly accurate, or item- or location-specific, knowledge. See
H.R. Rep. 105-551(II) at 58 (explaining that red flag knowledge will exist in
a case where entire websites are “obviously infringing,” because the
websites use descriptions that “make their illegal purpose obvious”).
B.

YouTube has specific knowledge or awareness of
infringements, and made deliberate decisions not to act on
that knowledge

The record below, which YouTube now attempts to paper over,
evidences far more than “generalized awareness.” For example, YouTube

8

ran searches for Premier League content on its website in order to evaluate
the content in deciding whether to bid for a license, but kept the content on
the site when it decided not to make the bid. IIIA167, ¶22. YouTube located,
and targeted advertisements to, clips of French Open (“Roland Garros”)
match footage and users’ searches for that footage (IIIA295; IIIA298;
IIIA320), even after learning that match footage was unauthorized to be on
YouTube (IIIA416, ¶142). YouTube’s users told it that they “do not own”
videos of class plaintiffs’ works, and identified “millions” of infringing clips
of Premier League matches, which YouTube left up. IIIA313; IIIA239;
IIIA162 ¶17; IIIA388 ¶64. And YouTube’s music “tracking” system was
designed specifically to identify songs owned by class plaintiffs and to
discourage YouTube’s content partners, who had no license to exploit those
songs, from removing them. Opening Br. 16-20. This goes far beyond
“generalized awareness” – it constitutes culpable conduct that Congress
excluded from any safe harbor.
Notwithstanding YouTube’s assertion (YT Br. 56) that its policy of
tracking plaintiffs’ specific songs simply shows its “lack of knowledge,”
YouTube’s knowledge that it required both recording and publishing
licenses in order to exploit music content on its site is confirmed, among
other things, by the facts that it secured nationwide publishing licenses
9

outside the United States, for example, from GEMA in Germany and MCPSPRS in the United Kingdom (see IIIA182 ¶31), and from the major U.S.
publishers. IVA180 ¶9. However, to save money, time and effort within the
United States, YouTube deliberately ignored independent music publishers,
choosing instead to identify and track their songs without paying for the
rights. Opening Br. 17-18; IIIA379-380 ¶43 Tab 36; IIIA514.
This is not mere “lack of knowledge,” but deliberate conduct meant to
profit from content whose infringing nature was “apparent” to YouTube.
YouTube cynically suggests that because its system did not “tell YouTube
who owns the relevant composition rights,” it did not have actionable
knowledge. YT Br. 55. But YouTube does not have to know who the owner
is to know that it is using the material – professional, commercial music
uploaded by individual Internet users – without the owner’s permission. See,
e.g., IIIA356 Tab 189 (“good news is that fingerprinting works… bad
news… top 1000 music videos is probably 700-800 copyrighted.”).
YouTube asserts that its tracking policy did not discourage major
record labels from removing unauthorized content. YT Br. 55 n.20. Not so.
The very goal of YouTube’s identification technology was “to encourage
content partners to leave more of their content on the site” so YouTube
could “generate significant ad revenue based on that content.” IIIA403-404
10

¶96 Tab 195. YouTube set up its tracking system precisely so that the
default was “track,” not “block,” thus leaving the content uploaded even
when it was evident that neither YouTube nor the label had a publishing
license. Opening. Br. 19. YouTube’s tracking system did not “protect[]
publishers’ interests,” as YouTube outrageously claims (YT Br. 55), but
only YouTube’s interest in continuing to attract audiences using highly
popular but unlicensed content. IIIA225; IIIA258; IIA160 (“we’ll leave
music videos”); IIIA227 (“we don’t have clear licenses from them (publisher
issue)”).
YouTube further asserts (YT Br. 56) that there is no evidence that
plaintiffs’ individual “clips-in-suit” were tracked. But the evidence shows
that class plaintiffs’ works-in-suit were not only tracked – YouTube went so
far as to run song-specific advertisements against certain clips of plaintiffs’
musical works. See, e.g., IIIA326-347 (screenshots of infringements of class
plaintiffs’ works-in-suit with YouTube links to the specific song on iTunes
or Amazon.com). Additionally, since Audible Magic’s databases contained
fingerprints representing “the songs available for purchase in North
America,” YouTube’s identification technologies necessarily could identify
any commercial recordings of plaintiffs’ songs. IIIA401-402, ¶95, Tab 267.

11

As discussed in the next section, the point is not that YouTube must
adopt any specific filtering strategy or technology, but that it cannot ignore
content identification that results from its own use of these technologies for
profit-making purposes. The selective use of such technology has been held
in other cases to constitute evidence of a deliberate intent to foster infringement, precisely what YouTube was doing here. Arista Records LLC v. Lime
Grp. LLC, 715 F. Supp. 2d 481, 514 (S.D.N.Y. 2010) (“selective filtering
further demonstrates [defendant’s] knowledge of infringement-mitigating
technologies and the company’s intentional decision not to employ any such
technologies in a way that meaningfully deters [defendant’s] users’
infringing activities”). In any event, none of this could have been properly
resolved against plaintiffs on summary judgment.
C.

The knowledge provisions of § 512(c)(1)(A) do not
immunize YouTube’s willful blindness to infringements of
class plaintiffs’ works

YouTube’s assertion (YT Br. 39) that the treatment of willful
blindness as knowledge is an “extra-statutory” rule parts company with the
basic principle that “[w]illful blindness is knowledge, in copyright law.” In
re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (emphasis
added). Section 512(c)(1)(A) reflects that principle, denying a safe harbor
when infringements are “readily apparent to a reasonable person.” H.R. Rep.

12

105-551(II) at 53. Thus a service provider “would not qualify for the safe
harbor if it had turned a blind eye to ‘red flags’ of obvious infringement.” Id.
at 58; Aimster, 334 F.3d at 655 (DMCA safe harbors precluded where
defendant deliberately “disabled itself from doing anything to prevent
infringement”). This does not mean that YouTube must “review every
video” or conduct an “open-ended investigation” into each clip on its site
(YT Br. 37, 38), but it does mean that YouTube cannot set up systems that
identify infringing videos and then deliberately ignore the results in favor of
continued exploitation of those properties (Opening Br. 34-36).
After arguing that willful blindness has no place in a DMCA
knowledge inquiry, YouTube proposes that “willful blindness requires proof
that a service provider ‘purposefully contrived’ to ignore a very significant
risk that specific material was infringing.” YT Br. 45 (citing Tiffany (NJ)
Inc. v. eBay, Inc., 576 F. Supp. 2d 463, 515 (S.D.N.Y. 2008), aff’d, 600 F.3d
93 (2d Cir. 2010) cert. denied, 131 S. Ct. 647 (2010)). Yet that is exactly
what this record shows: YouTube knew that there was a massive amount of
copyright infringement on its site (Opening Br. 8-13), specifically including
infringements of class plaintiffs’ works (id. 13-18); YouTube used tools to
identify this content (id. 20-24), including class plaintiffs’ content (id.), and
run ads against it or track it so it would continue to draw viewers (id. 19;
13

IIIA295; IIIA298; IIIA320; IIIA251; IIIA326-347); but YouTube refused to
make these tools available to plaintiffs unless they agreed to license their
content to YouTube (Opening Br. 22). Far from presenting a theoretical
question about “the way [YouTube] deployed” its technology (YT Br. 42,
43), the record reveals YouTube’s deliberate decision to continue
identifying, tracking and exploiting clips on its site in spite of its knowledge
of infringements, and preventing content owners from using that information
to remove the infringements.
The extent to which YouTube now disputes these material facts (YT
Br. 40-44, 70-73) only highlights how improper it was to grant summary
judgment to YouTube. Nor does defendants’ feeble claim (id. 71) that there
are no direct written communications from YouTube establishing that it
withheld these tools from plaintiffs justify the result below. First, the record
shows such written statements. IIIA492; IIA673-674. Second, YouTube’s
culpable conduct was also undertaken in oral communications, and is documented by admissible testimony (IIIA399-400 ¶94 Tab 124; IIA649-650;
IIIA379-380 ¶43 Tab 36), and YouTube’s own internal communications
(Opening Br. 22).
The record also contradicts YouTube’s claim that it developed “Claim
Your Content” or its later “Content ID” tools in order to “help” copyright
14

owners. YT Br. 43; 73. It developed and launched those tools because it
wanted to identify videos for content-specific advertisements. Opening Br.
20-21. That is why YouTube refused to let plaintiffs use the tools unless
they agreed to license their content or give up other valuable rights.
YouTube’s further claim that plaintiffs “weren’t using Audible
Magic” to protect their content at that time (YT Br. 71) is an odd and irrelevant assertion. YouTube refused to let plaintiffs use the tool on YouTube’s
website. Opening Br. 22; IIIA399-400 ¶94. Although Audible Magic already
had a database that could identify the commercial recordings of plaintiffs’
songs (IIIA401-402 ¶95 Tab 267), and was equipped to fingerprint YouTube
clips that were subject to plaintiffs’ takedown notices in order to prevent repostings of the same content (IA817-818), YouTube would turn on that
feature only for partners willing to license their content (id.; IIIA401 Tab
182).
D.

The knowledge provisions of § 512(c)(1)(A) do not
immunize YouTube’s inducement of infringement of class
plaintiffs’ works

Effectively abandoning the lower court’s indefensible holding that
inducement considerations are entirely foreign to a DMCA safe harbor
analysis, YouTube instead primarily argues that the record evidence cannot
support a finding of inducement liability here. But disputes over defendants’

15

intent, or the extent to which their efforts resulted in acts of infringement,
are not issues for the court to resolve on summary judgment.2
YouTube’s claim that “no court has ever held a DMCA-compliant
service liable for inducement” (YT Br. 82) misses the point, since a party
that induces infringement cannot qualify for safe harbor treatment:
“inducement liability and the Digital Millennium Copyright Act safe harbors
are inherently contradictory.” Columbia Pictures Indus., Inc. v. Fung, 2009
WL 6355911, at *18 (C.D. Cal. Dec. 21, 2009) (appeal pending, argument
scheduled for May 6, 2011). As Judge Posner held in Aimster, 334 F.3d at
655, the common element of the safe harbors “is that the service provider
must do what it can reasonably be asked to do to prevent the use of its
service by ‘repeat infringers.’ 17 U.S.C. § 512(i)(1)(A).” That is why the
legislative history cautions that the title containing the safe harbors
“preserves strong incentives for service providers and copyright owners to
cooperate to detect and deal with copyright infringement that takes place in
the digital networked environment.” H.R. Rep. 105-551(II) at 49.

2

The court below did not, as YouTube claims, hold that YouTube’s
welcoming of infringement was “the most” a jury could find. YT Br. 85;
SPA 9. And YouTube’s complaint that the court did not point to any
evidence in drawing this conclusion is telling – the decision below should be
overturned in part because the court chose to ignore almost the entirety of
the evidentiary record presented by plaintiffs. Opening Br. 24-26.
16

The point is not that Grokster “altered” the DMCA safe harbor (YT
Br. 35), but that the safe harbor was never meant to immunize websites like
YouTube acting with deliberate unlawful purpose to induce infringements, a
basis of liability that pre-dates Grokster. See MGM Studios Inc. v. Grokster,
Ltd., 545 U.S. 913, 936 (2005). Grokster makes clear that an “item-specific”
knowledge requirement is incompatible with inducement liability. Id. at 934
(no showing of “knowledge of specific unlawful uses”). YouTube’s and the
district court’s construction of the statute upsets the careful balance
Congress struck and would necessarily turn the safe harbor into a pirate’s
cove for willful inducers, so long as they respond to takedown notices.
Opening Br. 37-38. YouTube’s contention that “computer system operators”
are subject to a “specific knowledge” standard even for inducement liability
(YT Br. 36 n.10) is also contradicted by the holding that Grokster, which
merely distributed software, was liable based on its “unlawful objective,”
despite the absence of evidence of “knowledge of specific unlawful uses.”
Grokster, 545 U.S. at 940, 934.
Defendants argue at length, on the facts, that there was no proof of
explicit message to users overtly encouraging them to infringe. YT Br. 8687. But the law focuses on unlawful purpose (along with acts clearly
promoting it, addressed below), not messages per se:
17

Whether the messages were communicated is not to the point
on this record. The function of the message in the theory of
inducement is to prove by a defendant’s own statements that his
unlawful purpose disqualifies him from claiming protection
(and incidentally to point to actual violators likely to be found
among those who hear or read the message). Proving that a
message was sent out, then, is the preeminent but not exclusive
way of showing that active steps were taken with the purpose
of bringing about infringing acts, and of showing that
infringing acts took place by using the device distributed.
Grokster, 545 U.S. at 938 (emphasis added). YouTube’s unlawful objective
and purposeful conduct aimed at promoting its site as a place to upload and
access high-value copyright infringing content is amply evidenced. See
Grokster, 545 U.S. at 937-38; Opening Br. 8-13, 20-24, 43.
Defendants now quarrel over the meaning of their incriminating
internal discussions about building YouTube’s audience through infringement (compare Opening Br. 8-13 with YT Br. 11-15).3 But they do so
fruitlessly, since they can only dispute, not expunge, the evidence of the
steps they took to ensure that users would upload and access infringing
content on their site. YouTube:
3

For example, YouTube claims that a document shows co-founders Chen
and Karim encouraging each other to remove infringing TV shows and
movies. YT Br. 12. But the document makes plain that Chen and Karim
wish to remove “whole movies” and “entire TV shows,” because such
lengthy clips are not popular. In the same document, they decide to keep
“music videos” and “sports” clips on the site (which they also know are
infringing), precisely because those are popular. IIA159-160; see also
IIIA385 ¶57 Tab 282.
18

•
quantified the value of so-called “premium” unlicensed content
on YouTube (IIIA225; IIIA251; IIA211-214; IIIA366-367 ¶25 Tab
41; IIIA356 ¶6 Tab 189);
•
deliberately decided to “keep” infringing sports and music clips
on the site (IIA159; IIA160; IIIA150-151 ¶5 Tab 61; IA338);
•
refused to provide content identification tools to plaintiffs
absent a license for plaintiffs’ content (documents cited at Opening
Br. 22);
•
knew that users would be encouraged to upload infringements
by seeing other infringements on the site (IIIA239; IA283, ¶¶117-118;
IA334, ¶¶334-335; IIIA313; IIIA381, ¶ 49);
•
identified unlicensed content for business reasons but did not
remove it (IIIA256; IIIA295; IIIA298; IIIA320);
•
structured content identification tools to encourage “partners”
to “track” rather than remove specific unlicensed songs (documents
cited at Opening Br.18-20); and
•
knew that the 10-minute limit on clips would not prevent
infringing activity (IIA183; IIIA318).4

4

Defendants’ self-serving litany of steps taken to purportedly stop
infringement is belied by internal communications recognizing those
measures were half-hearted and ineffective. See, e.g., IIA183 (“[a]lthough
the new 10-minute length restriction serves well to reinforce the official line
[…] it probably won’t cut down the actual amount of illegal content
uploaded”); IIIA403-404 ¶96 Tab 195 (“Goal” of CYC is to “enable
YouTube to generate significant ad revenue”); IIA159 (“we can presumably
claim that we don’t know who owns the rights to that video and by
uploading, the user is claiming they own that video. [W]e’re protected by the
DMCA for that. We’ll take it down if we get a ‘cease and desist’”); see also
IIIA385-386 ¶57. The 10-minute clip limit also does nothing to prevent
infringing short-form content including class plaintiffs’ popular musical
works and sports highlight clips.
19

These material facts, merely disputed by YouTube, demonstrate knowledge
and intent constituting inducement as well as disqualification from the
protections of §512(c).
Nor does the extent of allegedly non-infringing material have any
bearing on defendants’ infringement-inducing activities or disqualifying
knowledge. See Grokster, 545 U.S. at 934 (evidence of substantial noninfringing use no bar to inducement culpability). In any event, YouTube –
which has the burden of proof on its affirmative safe harbor defense (and on
its summary judgment motion) – never cites to (and never offers) any
quantification of the amount of non-infringing material on its site or what
proportion of views such material attracts. Instead, YouTube cites only a few
dozen self-selected clips and channels (YT Br. 88-89), numbers which pale
in comparison to: 1) defendants’ own contemporaneous estimates that
unlicensed professional content served as the primary draw for its audience
(supra 19; Opening Br. 8-13; IIA47; IA857; IA537); and 2) the thousands of
clips-in-suit specifically identified in this case (IIIA410, ¶116; YT Br. 92).5

5

Defendants deride the characterization of YouTube as a “pirate site” (YT
Br. 11), but high level Google executives used that characterization at the
time of the acquisition. See, e.g., IA540 (pre-acquisition email from Google
vice-president David Eun to Google CEO Eric Schmidt stating, “a large part
of [YouTube’s] traffic is from pirated content”).
20

E.

Class plaintiffs did not engage in licensing sufficient to
deprive YouTube of disqualifying knowledge

YouTube argues that the fact that certain class plaintiffs may have
licensed certain works for use on YouTube renders it impossible for
YouTube ever to have disqualifying knowledge or awareness. This is not the
law. Opening Br. 39-41.
The argument is also factually baseless. YouTube attempts to paint
class plaintiffs with the same brush as the Viacom plaintiffs. However, in
contrast to YouTube’s accusations against Viacom, class plaintiffs did not
covertly post their own works to YouTube or engage in “stealth” marketing
of their works; class plaintiffs did not “leave up” infringing clips on
YouTube’s website; and class plaintiffs never authorized any of their clipsin-suit to be on YouTube. YT Br. 44-48, 50-53; IIIA414 ¶¶136-144.
YouTube cites evidence that a few of the hundreds of works-in-suit in this
case were licensed to be on YouTube, and complains that “[p]laintiffs did
not inform YouTube of the details of their licensing and coownership
arrangements.” YT Br. 49. But YouTube ignores the evidence that it
rebuffed plaintiffs when they tried to do just that (IIIA379-380 ¶43 Tab 36
(Cherry Lane “was summarily told that YouTube had no interest in Cherry
Lane given its small market share”)), and refused to let plaintiffs use the
tools that it was already using to identify plaintiffs’ specific works (Opening
21

Br. 22). 6 Class plaintiffs’ sports footage is not licensed for use on YouTube.
IIIA414 ¶136. Moreover, when class plaintiffs’ musical works were licensed
to appear on YouTube, it was as part of a specifically identifiable online
promotion or advertisement, unlike the vast majority of music infringements,
which are recognizable songs played as a soundtrack to user-generated
content, and which could not reasonably be assumed to be licensed. IIIA414
¶136-144.
Although YouTube claims that the music publisher plaintiffs had
“difficulties” determining if specific clips were licensed (YT Br. 69), the
documents that YouTube cites mainly show that plaintiffs sometimes
checked their licensing databases.7 There is no evidence that plaintiffs had
6

YouTube also tries to make hay of the fact that a small number of music
works-in-suit had co-owners. YT Br. 49, 69. Although U.S. law permits
unilateral licensing by one co-owner within the United States in certain
circumstances, that is not the law in most other countries, where “the
consent of all of the joint owners is required in order to validate a license.”
See Nimmer on Copyright §17.07[B]; see also Patry on Copyright §24:7.
Thus, any co-owner wishing to license a work for appearance on YouTube –
which automatically makes videos available worldwide – would need to
obtain the consent of one of the class plaintiff music publishers. Absent such
consent, the work would not be properly licensed to appear on YouTube.
7

YouTube’s citation to evidence that one class plaintiff hired a musicologist
is a red herring. YT Br. 69. In those cases the issue was whether one musical
work was an improper “sound-alike” of another; it had nothing to do with
whether the plaintiff’s works were licensed to be on YouTube. And, it has
nothing to do with YouTube’s responsibility to remove obvious infringements, including those it was already identifying with ease. IIIA420-421
¶159; supra 9-12.
22

trouble identifying the clips-in-suit as infringements. And out of the
thousands and thousands of class plaintiffs’ takedown requests identified in
this case, YouTube points to evidence that only one was mistakenly issued.8
More fundamentally, YouTube knew that massive infringement was
occurring on its website, was able to (and did) identify clips of class
plaintiffs’ specific works, and knew these clips were unauthorized – either
because YouTube was told they were unauthorized by users and copyright
owners (see, e.g., IIIA381-382 ¶49; IIIA416 ¶142; IIIA399-400 ¶94 Tab
124), YouTube declined to secure a license to authorize specific works to be
on its site (see, e.g., IIIA379-380 ¶43 Tab 36; IIIA167 ¶22), or because it
was blatantly obvious that YouTube’s individual uploaders did not pay for a
license to freely share class plaintiffs’ professional content (see, e.g.,
IIIA313; IIIA318). In this context, YouTube was obligated to remove the
obvious infringements, or at the very least not hide the output of its
identification tools from plaintiffs, if it wanted safe harbor protection.

8

YouTube claims that “various” takedown notices were sent for clips that
were authorized. YT Br. 69. In fact, only one was. In the other two cases
YouTube cites, the plaintiff decided to authorize the clips to remain on the
site, despite the fact that they were posted without a proper license. Id.;
IIIA419 ¶¶153-155.
23

III.

YouTube Directly Benefitted From And Had Disqualifying
Control Over Infringements Of Class Plaintiffs’ Works
YouTube’s argument with respect to the benefit and control prong of

§512(c)(1)(B) (YT Br. 58-77) is also wrong on the law and wrong on the
facts. As the structure of §512(c)(1)(B) indicates, a financial benefit directly
attributable to infringing activity is the principal disqualifier in this provision, conditioned on the proviso that even those who enjoy directly attributable financial benefits will retain the safe harbor if they lack the right and
ability to control the infringing activity. The arguments of various amici, and
the holdings of various federal courts in California – that Congress could not
have meant to close the safe harbor to service providers merely because they
have some right and ability to control infringement – misreads the statute. A
service provider’s right and ability to control is not independently disqualifying. Only when the service provider is receiving a direct financial benefit
from the infringing activity, “in a case in which the service provider has the
right and ability to control such activity,” will the service provider be
excluded. See generally S. Rep. 105-190, at 44. That is the case here.
A.

YouTube directly benefitted from infringements

Even the Ninth Circuit cases that defendants favor elsewhere in their
brief hold that “direct financial benefit” in §512(c)(1)(B) should be assessed
in light of its common law meaning. Opening Br. 53-54. YouTube’s own
24

internal communications admit that it draws users to its site through the
presence of infringing material, including class plaintiffs’ material. Opening
Br. 8-20. There is no genuine dispute that YouTube enjoys a direct financial
benefit from the infringing activities at issue. Opening Br. 54.
Arguing against these holdings, YouTube relies heavily on a statement from the House and Senate reports that, “a one-time set-up fee and flat,
periodic payments for service from a person engaging in infringing activities” would not meet the financial benefit test under §512(c)(1)(B). YT Br.
74-75. YouTube asserts that this shows that Congress meant to “reject” the
common-law “draw” test. Id. But that statement from the House and Senate
reports was meant to provide examples of direct financial benefit, not an
exclusive list, and it is not inconsistent with the common law. The examples
it provides simply do not address cases where service providers rely on
infringements to “enhance the attractiveness” of their service, which was the
basis for finding common law direct financial benefit in the Fonovisa case
that YouTube cites. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263
(9th Cir. 1996). Likewise, they do not address businesses like YouTube,
which receive no payments from infringing uploaders or viewers, but instead
rely on infringing content to draw an audience that they can then sell to
advertisers.
25

YouTube further distorts the legislative history by omitting the
sentence that immediately follows the passage that it quotes (YT Br. 74-75):
“[512(c)(1)(B)] would however, include any such fees where the value of
the service lies in providing access to infringing material.” H.R. Rep. 10555(II) at 54 (emphasis added). That was the case in Fonovisa, and is the case
here. The value of YouTube’s service from the outset was deliberately built
on providing popular infringing material. That material garnered YouTube’s
audience, generated the advertising revenues, and ultimately accounted for
the $1.65 billion that Google paid for YouTube in 2006. Opening Br. 8-13.
That YouTube may have run advertisements against some noninfringing content (as well as against infringements of plaintiffs’ high-value,
audience-attracting content) does not automatically entitle it to a safe harbor,
especially where a jury could find that YouTube deliberately relied on
infringements as an essential draw for its audience. These facts go well
beyond the common law test, which lacks an intent requirement, and
pursuant to which “there is no requirement that the draw be ‘substantial’.”
Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004) (citation omitted).
YouTube’s assertion that as long as it has a “legitimate business
model” it survives the direct financial benefit test (YT Br. 76) simply
assumes a conclusion, and ignores all of the evidence that YouTube’s model
26

was precisely to capitalize on and directly benefit from high-value,
unlicensed content from plaintiffs and comparable copyright owners.
YouTube’s additional assertions that it only ran advertisements on “watch
pages” “claimed” by its content partners, and that most of its revenue came
from its home page and pages showing the results of users’ searches for
videos, are also immaterial. YT Br. 76. YouTube’s own studies show that
users were primarily searching for unlicensed premium content – including
class plaintiffs’ unauthorized content.9 IIIA366-367 ¶25. YouTube even ran
advertisements directly targeted to users’ searches for class plaintiffs’
specific content, and on watch pages with infringing videos of class
plaintiffs’ content. IIIA241- 247, 295-306; 320; 326-347. Holding YouTube
liable on these specific facts would not mean that all advertising-supported
user-generated content sites are automatically excluded from the safe harbor,
as YouTube and its amici claim. YT Br. 77. It would mean only that they are
excluded if they behave like YouTube – deliberately relying on
infringements to draw their audiences and generate their advertising
revenues.

9

YouTube’s studies also showed that content-specific advertising targeted to
users’ searches for premium videos was more lucrative than other
advertisements. See Opening Br. 20 n.2.
27

B.

YouTube can and does control infringements

Defendants’ contention (YT Br. 58) that plaintiffs failed to carry their
burden of proof as to YouTube’s control over the infringing activities at
issue is meritless. Like any other affirmative defense, the burden of
establishing a §512(c) defense is on the defendant who is profiting from the
infringing material, not the plaintiff whose work has been copied and
distributed by the defendant. Opening Br. 28-29; see also Nimmer on
Copyright §12.11[F] (“the defendant bears the burden of proof as to all
affirmative defenses”) and §12B.06[A] (referring to the “four affirmative
defenses” in §§512(a), (b), (c) and (d)). Here, Google has not even attempted
to shoulder its burden to prove beyond genuine dispute that it lacked the
“right and ability to control” the infringing activity taking place with respect
to plaintiffs’ copyrighted works. For this reason alone, summary judgment
for YouTube was error.
YouTube never proposes a standard for the “control” disqualifier,
resting content simply to attack various points plaintiffs make.10 But no

10

YouTube off-handedly suggests that “control” must be limited to
situations where YouTube has authority over the individuals who are
uploading infringements, for example, through a principal/agent
relationship. YT Br. 60. YouTube relies entirely on a definition of control, in
an outdated edition of Black’s Law Dictionary (6th ed. 1990), as “the ability
to exercise a restraining or directing influence over something.” Id.
(emphasis added). But the statute tells us what this “something” is – it is the
28

decision (other than the one below) has ever held that knowledge is an
element of the “control” standard. Likewise, the phrase “infringing activity”
is frequently used to refer to infringement generally, without item- or
location-specificity.11 The lower court’s inexplicable conclusion that the
“right and ability to control” “infringing activity” requires proof of item- and
location-specific knowledge is not only inconsistent with the plain meaning
of the statute, but would also render superfluous the knowledge or awareness
prong of the safe harbor. Opening Br. 46-47, 49-50.
Section 512(c)(1)(B) could hardly be clearer, and is plainly drawn
directly from this Court’s influential decision in Gershwin Publishing Corp.
v. Columbia Artists Management Inc., 443 F.2d 1159, 1162-63 (1971).
Gershwin held Columbia Artists Management responsible for infringement
occurring at a community concert in Port Washington at which its artists
performed, since it “was in a position to police the infringing conduct…
and… derived substantial financial benefit from the actions of the primary

“infringing activity” on YouTube’s website from which YouTube is directly
benefitting, not the persons doing the uploading or viewing. §512(c)(1)(B).
11

See, e.g., MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 939 (2005)
(“this evidence of unlawful objective is given added significance by MGM’s
showing that neither company attempted to develop filtering tools or other
mechanisms to diminish the infringing activity”); Arista Records LLC v.
Doe, 604 F.3d 110, 122 (2d Cir. 2010) (referring to “infringing activity”
broadly, not with item-specificity).
29

infringers.” Congress’s similar decision to deny a safe harbor to those who
“receive a financial benefit directly attributable to the infringing activity” so
long as the defendant “has the right and ability to control” the infringing
activity – a standard of liability that was persuasive to a distinguished panel
including Judge Friendly – is hardly irrational, or deserving of the wholesale
distortion it has received in various cases from California.
YouTube’s main objection is that the DMCA safe harbor could not
have been intended to restate vicarious liability principles. YT Br. 58-59.
But that is exactly the intent reflected in the House report that accompanied
the first version of the legislation, which contained an almost identical
control and benefit provision: “[t]he ‘right and ability to control’ language in
Subparagraph (B) codifies the second element of vicarious liability.” H.R.
Rep. 105-551(I) at 23. There is nothing inconsistent in Congress creating a
statutory “safe harbor” by reference to then-existing common law standards,
while letting the common law continue to evolve on its own.
In any event, defendants’ observation that “regardless of how the
DMCA’s control test is applied,” it “at a minimum requires that the service
provider have the practical ability to have prevented the alleged infringing
activity at issue” raises no disagreement from class plaintiffs. YouTube in
fact has that practical ability. Compare YT Br. 61 with Opening Br. 50-53.
30

As class plaintiffs demonstrated in their Opening Brief (at 51-52),
YouTube’s conduct goes well beyond the “something more” standard
promoted by the district court cases on which YouTube relies.
C.

A properly instructed jury could find disqualifying control

Having held that “right and ability to control” matters only as to
specific individual clips for which YouTube had 100%-certain knowledge
from a takedown notice, the district court failed to address the evidence
plaintiffs submitted to prove the requisite right and ability to control.
Construing “control” to have its plain, unambiguous meaning,
YouTube’s attempt to deny its right and ability to control is perplexing,
particularly on summary judgment. YouTube’s own Community Guidelines,
which advise of YouTube’s right and ability to restrict a wide range of
lawful but disfavored content, refute any notion that YouTube lacks “the
right and ability to control” as used in § 512(c)(1)(B).12 YouTube has at least

12

See www.youtube.com/t/community_guidelines (Dkt No. 178, at p. 30),
which assert YouTube’s right and ability to control videos containing a wide
range of content, including “pornography or sexually explicit content” and
“bad stuff like animal abuse, drug abuse, under-age drinking and smoking…
gross-out videos of accidents, dead bodies, or similar things intended to
shock or disgust… speech which attacks or demeans a group based on race
or ethnic origin, religion, disability, gender, age, veteran status, and sexual
orientation… predatory behavior… invading privacy, revealing other
people’s personal information,” and “large amounts of untargeted, unwanted
or repetitive content, including comments and private messages… We
Enforce These Guidelines… YouTube staff review flagged videos 24 hours
31

that same “ability” to control video of Premier League matches, French
Open tournament play, or recordings of Rodgers and Hammerstein
productions, all of which were (and despite numerous takedown notices still
are) broadly available on YouTube, through multiple uploads.13 In fact,
YouTube did control such videos when it suited its business purposes.
Opening Br. 15 (explaining how YouTube removed infringing content in
advance of license negotiations).
YouTube’s opposition to this line of argument (YT Br. 39, 63-69) –
insisting that it cannot know for certain that any given video it could flag
would be infringing (or not fair use or otherwise licensed), even with respect
to organizations like the plaintiffs that have patiently and with great
forbearance submitted many thousands of DMCA-compliant notices – is an
excuse masquerading as a rebuttal. The statute does not refer to the “right
and ability to perfectly control.” Nothing in the DMCA says that Google and

a day, seven days a week to determine whether they violate our Community
Guidelines. When they do, we remove them.” (Emphasis added.)
13

For example, entering “South Pacific Lincoln Center” on the YouTube
search box on April 26 resulted in the entire production in 12 eponymously
identified parts. Entering “Roland Garros 2010 final” produced that match in
14 parts, and numerous other versions as well. Entering “premier league
highlights 2010” produced official footage of numerous games, which
YouTube has repeatedly been told is either subject to the Premiere League’s
copyright or otherwise in violation of the Premier League’s rights. IIIA388
¶64 Tab 188; IIIA410 ¶116; Opening Br. 14-15.
32

YouTube, which have chosen to exercise control so as to avert the perceived
harms from categories of videos they apparently judge are undesirable
(supra, note 12), could not, or should not, exercise that same kind of control
in the service of averting enormous harm to copyright owners.
To the contrary, the legislative history underlying §512(c) repeatedly
emphasizes the balance struck by the statute: protection for service providers
while “preserv[ing] strong incentives for service providers and copyright
owners to cooperate to detect and deal with copyright infringement ….”
H.R. Rep. 105-551(II) at 49. The record makes plain – and certainly permits
a jury to find – that YouTube has resolutely refused, other than by
compliance with takedown notices, to “eliminate or at least reduce
substantially the infringing uses.” In re Aimster Copyright Litig., 334 F.3d
643, 653 (7th Cir. 2003) (holding that copyright law imposes precisely that
duty on service providers). Nor can anyone have the slightest doubt that
Google’s abilities to use its algorithms and software to identify likely
infringement of materials owned by the plaintiffs (and similar entities in the
putative class) are extraordinary and more than adequate to eliminate a huge
amount of infringement on which YouTube is capitalizing. See generally
Opening Br. 8-24.

33

Notwithstanding the above, YouTube has no response to plaintiffs’
showing that even on the standard of the district court cases on which
YouTube relies, which insist upon “something more” than the control
standard under the common law, a jury could find control. Compare
Opening Br. 50-53 with YT Br. 60-61. Nor has it explained why, having
used content identification tools to find Premier League and Fédération
Française de Tennis content in order to run ads against it (IIIA241- 247,
295-300; 320), and to track and run ads against plaintiff music publishers’
content (IIIA326-347), YouTube should not be expected to use the same
tools to remove what it has repeatedly been told is infringing content, when:
1) having already been removed subject to takedown notices, the same
content pops up at different URLs, like whack-a-mole, thus giving YouTube
“some antecedent awareness of the individual materials or activities alleged
to be infringing” (YT Br. 60; see also IIIA388 ¶64 Tab 188); and 2)
YouTube is deliberately and directly profiting from this infringing material
(supra, 24-27).
IV.

YouTube’s Knowledge, Control And Deliberate Actions Are Not
Rendered Irrelevant By Section 512(m)
Citing 17 U.S.C. §512(m), YouTube and some of its amici argue that

the inquiry into whether YouTube willfully blinded itself to infringement
and infringing activity on its site, or had the right and ability to control that
34

infringement or infringing activity, cannot take into account knowledge it
had from the monitoring it did undertake, or its decision not to employ
monitoring tools it used for revenue-maximizing purposes for infringementreducing ones. YT Br. 38-39, 62. That argument misreads §512(m) in
multiple respects.
Section 512(m), as its title suggests, was intended to ensure
“Protection of Privacy,” not to address what constitutes or is pertinent to a
service provider’s red flag knowledge, or right and ability to control.14 A
proper construction of § 512(m) should take that into account. Nimmer on
Copyright, §12B.09[B] at n. 33; United States v. Fuller, 627 F.3d 499, 505
n.2 (2d Cir. 2010) (“the title of a section of a statute… may nevertheless be
useful in guiding our interpretation.”). Section 512(m) was aimed at
ensuring that safe harbors would not require service providers to invade the
privacy of college students and other users by “seeking facts indicating
[their] infringing activity.” Stretching it to say that the facts detailed in our
opening brief at 20-24, and supra at 19, do not preclude the safe harbor is
stretching §512(m) several bridges too far. Here, those facts demonstrated
that YouTube used tools to find and measure infringements for profit14

What is now §512(m) is essentially identical to the provision addressed in
all the pertinent House and Senate Reports, and has carried that same title
from the first of those reports. See H.R. Rep. No. 105-551 Part I, at 36; H.R.
Rep. 105-551 Part 2, at 17; S. Rep. 105-190, at 55.
35

maximizing or license-negotiation purposes but declined to use those same
tools for infringement reduction purposes. YouTube already:
• searches for plaintiffs’ content on its site in order to gain
leverage in license negotiations, then leaves plaintiffs’ content
on the site when it declines to bid for the license (IIIA251-252,
256; IIIA167 ¶22);
• locates and runs advertisements directly targeted to plaintiffs’
content (IIIA241- 247, 295-300; 320); and
• tracks plaintiffs’ specific songs with the deliberate policy to
keep them on the site and attract views (IIIA403 ¶96; IIIA326347).
There is no privacy-protection purpose imaginable in disregarding
monitoring that YouTube is already undertaking (or of the kind that it is
already undertaking). Nothing in §512(m) requires or permits that YouTube
be allowed to have it both ways.
V.

YouTube Is Ineligible For The §512(c) Safe Harbor At The
Threshold
A.

YouTube’s actions reach well past “storage at the direction
of a user”

Predicting dire consequences if the district court’s ruling is
overturned, YouTube asserts that class plaintiffs are wrong to make the
“radical” argument that §512(c) protects only “passive providers of storage”
and not those that provide access to stored content uploaded by users. YT
Br. 79. But class plaintiffs do not make that argument. Compare YT Br. 77,

36

79 with Opening Br. 56-58. Class plaintiffs argue that YouTube’s actions
went well beyond both passive storage and the provision of access to
plaintiffs’ copyrighted works on its website. Id.
For example, YouTube asserts that its provision of videos to mobile
phones is merely one way of “facilitating access” to user-stored materials.
YT Br. 81 n.34. But YouTube’s actions went beyond that. YouTube
syndicated its inventory of videos to other media platforms (for a fee)
without any direction from the users who were ostensibly “storing” them on
YouTube. IIIA500; IA331-332 ¶¶324-330.
YouTube’s claim (YT Br. 80) that its “related videos” function is also
merely an aspect of “facilitating access” turns “facilitating access” into a
meaningless phrase. YouTube’s related videos feature (IA334 ¶¶334-335)
promotes videos to viewers that those viewers otherwise would not have
watched – and specifically promotes infringements of class plaintiffs’ works.
For example, when a viewer watches a video containing a musical work
owned by class plaintiffs, YouTube suggests other videos for the viewer to
watch that contain the exact same infringing material. IIIA320-346. This is
content promotion, not “access” to stored content.
More fundamentally, YouTube’s “related videos” function highlights
the fact that many of the actions in this case for which YouTube may be held
37

liable arise from its deliberate efforts to capitalize on class plaintiffs’
infringing content. Supra, 19; Opening Br. 43. These deliberate acts, not
directed by users, go well beyond the storage-related functions that §512(c)
was designed to protect. YouTube’s liability here arises not only from its
technical functions – including converting videos into new formats and
streaming them on request to its viewers (YT Br. 80) – but from increasingly
acting like a television broadcaster, and inducing third party uploaders and
viewers to engage in infringing activity involving high-value infringing
content, so as to maximize viewer eyeballs and hence advertising revenue.
B.

YouTube did not reasonably implement its infringement
policy

By denying its content identification tools to class plaintiffs, YouTube
deliberately prevented them from locating infringements on its website, and
accordingly cannot be held to have “reasonably implemented” a repeat
infringer policy. Opening Br. 55-56. YouTube professes to be perplexed by
this argument. YT Br. 28. But the courts have been very clear: “a repeat
infringer policy is not implemented under §512(i)(1)(A) if the service
provider prevents copyright holders from providing DMCA-compliant
notifications.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1110 (9th Cir.
2007); see also In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir.
2003) (the common element of the safe harbors “is that the service provider
38

must do what it can reasonably be asked to do to prevent the use of its
service by ‘repeat infringers’”) (emphasis added). Here, YouTube not only
failed to do what it reasonably could have, but also deliberately chose to
prevent class plaintiffs from removing their infringements by denying them
the very tools that YouTube was using to track and exploit those
infringements. This behavior excludes YouTube from the safe harbor. Any
disputes about these facts are for a jury to decide at trial, not a court on
summary judgment.
CONCLUSION
For the reasons above and in our opening brief, the judgment below
should be reversed.

April 28, 2011
Respectfully submitted,

/s/ Charles S. Sims
Charles S. Sims
William M. Hart
Noah Siskind Gitterman
Elizabeth A. Figueira
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Telephone: [phone]
Lead Counsel of Record for
Plaintiffs-Appellants
39

Max W. Berger
John C. Browne
BERNSTEIN LITOWITZ
BERGER & GROSSMANN LLP
1285 Avenue of the Americas
New York, NY 10019
Telephone: [phone]
Email: [e-mail]
Attorneys For The Football
Association Premier League
Limited, Bourne Co., Murbo
Music Publishing, Inc., Cherry
Lane Music Publishing Company,
Inc., X-Ray Dog Music, Inc., and
Fédération Française de Tennis
Louis M. Solomon
Hal S. Shaftel
CADWALADER,
WICKERSHAM & TAFT, LLP
One World Financial Center
New York, NY 10281
Telephone: [phone]
[e-mail]
Attorneys For The Football
Association Premier League
Limited
David S. Stellings
Annika K. Martin
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10017-2024
Tel. [phone]
Fax. [phone]
Attorneys for the National Music
Publishers’ Association, Rodgers
& Hammerstein Organization,
40

Stage Three Music (US), Inc.,
Edward B. Marks Music
Company, Freddy Bienstock
Music Company d/b/a Bienstock
Publishing Company, and Alley
Music Corporation

Daniel Girard
Christina Connolly Sharp
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, CA 94108
-andDavid Garrison
BARRETT JOHNSTON &
PARSLEY
217 Second Avenue North
Nashville, TN 37201
-andKevin Doherty
BURR & FORMAN LLP
700 Two American Center
3102 West End Avenue
Nashville, TN 37203
Attorneys for Cal IV
Entertainment LLC
Christopher Lovell
Christopher M. McGrath
LOVELL STEWART
HALEBIAN LLP
61 Broadway, Suite 501
New York, New York 10110
Telephone: [phone]
Facsimile: [phone]
-andJeffrey L. Graubart
LAW OFFICES OF JEFFREY L.
GRAUBART
41

350 West Colorado Boulevard
Suite 200
Pasadena, California 91105-1855
Telephone: [phone]
Facsimile: [phone]
-andSteve D’Onofrio
5335 Wisconsin Avenue, N.W.
Suite 950
Washington, D.C. 20015
Telephone: [phone]
Facsimile: [phone]
Attorneys for The Music Force
Media Group LLC, The Music
Force LLC, and Sin-Drome
Records, Ltd.

42

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B), and with this court’s April 19, 2011 order granting plaintiffsappellants’ motion for leave to file an oversized reply brief of 9,000 words,
because this brief contains 8,736 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
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
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2003 in 14-point Times New Roman.

April 28, 2011
/s/ Charles S. Sims
Charles S. Sims
Lead Counsel of Record for PlaintiffsAppellants

CERTIFICATE OF SERVICE & CM/ECF FILING
10-3342

The Football Association v. YouTube, Inc.

I hereby certify that I caused the foregoing Reply Brief for PlaintiffsAppellants to be served on all counsel via Electronic Mail generated by the Court’s
electronic filing system (CM/ECF) with a Notice of Docket Activity pursuant to
Local Appellate Rule 25.1:
Susan J. Kohlmann
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
[phone]
Stuart J. Baskin
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022
[phone]

Andrew H. Schapiro
A. John P. Mancini
Brian M. Willen
MAYER BROWN LLP
1675 Broadway
New York, NY 10019
[phone]

David H. Kramer
Michael H. Rubin
Bart E. Volkmer
WILSON SONSINI GOODRICH
Theodore B. Olson
& ROSATI P.C.
Matthew D. McGill
650 Page Mill Road
GIBSON, DUNN & CRUTCHER LLP Palo Alto, CA 94304
1050 Connecticut Avenue, NW
[phone]
Washington, DC 20036
[phone]
Attorneys for Defendants-Appellees
Attorneys for Plaintiffs-Appellants
(10-3270)
I certify that an electronic copy was uploaded to the Court’s electronic filing
system. Six hard copies of the foregoing Reply Brief for Plaintiffs-Appellants were
sent to the Clerk’s Office By Hand Delivery to:
Clerk of Court
United States Court of Appeals, Second Circuit
United States Courthouse
rd
500 Pearl Street, 3 floor
New York, New York 10007
[phone]
on this 28th day of April 2011.
Notary Public:
/s/ Nadia R. Oswald-Hamid

/s/ Samantha Collins

Sworn to me this

SAMANTHA COLLINS
Record Press, Inc.
229 West 36th Street, 8th Floor
New York, New York 10018
[phone]

April 28, 2011
NADIA R. OSWALD HAMID
Notary Public, State of New York
No. 01OS6101366
Qualified in Kings County
Commission Expires November 10, 2011