The Football Association Premi v. Youtube, Inc.

Filing 381

FRAP 28(j) LETTER, dated 08/26/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 08/26/2011 by CM/ECF.[375655] [10-3342]

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August 26, 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. 103342

Dear Ms. Holmes and Ms. Gay:
Pursuant to FRAP 28(j), YouTube writes to notify the Court of the recent
decision in Capitol Records, Inc. v. MP3tunes, 07-cv-9931 (S.D.N.Y. Aug. 22, 2011)
(attached), which, with one narrow exception, held that an online service allowing
users to store music files in personal storage “lockers” was protected by the DMCA.
The court in MP3tunes made several rulings that confirm YouTube’s
approach to the DMCA safe harbors. First, it held that while service providers
“must take down the specific infringing material identified” in a takedown notice,
they “are not required to search for and take down other material that may infringe
the identified copyrighted work.” Slip op. 14. Thus, as discussed on pages 56-58 of
YouTube’s brief, the DMCA does not require service providers to respond to
takedown notices by conducting “a burdensome investigation in order to determine
whether songs in its users’ accounts were unauthorized copies.” Id. at 15-16.
Second, Judge Pauley—like Judge Stanton in this case—held that the
DMCA’s knowledge provisions “describe knowledge of specific and identifiable
infringements of particular items.” Id. at 16 (quoting Viacom v. YouTube, 718
F.Supp.2d 514, 523 (S.D.N.Y. 2010)). The MP3tunes court also agreed that “if
investigation is required to determine whether material is infringement, then those
facts and circumstances are not ‘red flags.’” Id. at 17. And it found that plaintiffs
could not make a “red flag” showing in part because their own online marketing
activities left defendants’ users and executives with “no way of knowing for sure

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Mayer Brown LLP
Deborah Holmes & Kimberly Gay
August 26, 2011
Page 2
whether free songs on the internet are unauthorized.” Id. Those rulings support
pages 29-34 and 44-53 of YouTube’s brief.
Finally, MP3tunes supports the understanding of the DMCA’s control-plusfinancial-benefit provisions set out at pages 58-61 and 74-75 of YouTube’s brief.
The court held that defendants lacked a financial benefit because “infringing and
non-infringing users of Sideload.com paid precisely the same or nothing at all, for
locker services.” MP3tunes, slip op. 19. And it ruled that MP3tunes did not have
the ability to control the infringing activity because it “does not participate” in
users’ decisions about what songs to store in their lockers. Id.
Respectfully submitted,
/s Andrew H. Schapiro
Andrew H. Schapiro
Counsel for YouTube