The Football Association Premi v. Youtube, Inc.

Filing 390

FRAP 28(j) LETTER, dated 08/30/2011, on behalf of Appellant Bourne Co., Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., Federation Francaise De Tennis, Murbo Music Publishing, Inc., 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 and X-Ray Dog Music, Inc., RECEIVED. Service date 08/31/2011 by CM/ECF.[379846] [10-3342]

Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299

August 30, 2011
Via ECF

Charles S. Sims
Member of the Firm
d 212.969.3950
f 212.969.2900
[e-mail]
www.proskauer.com

Catherine O’Hagan Wolfe
Clerk, United States Court of Appeals for the Second Circuit
U.S. Courthouse
500 Pearl Street
New York, NY 10007
Re:

The Football Association et al. v. Youtube, Inc., No. 10-3342 cv

Dear Ms. Wolfe:
We write in response to the appellees' letter dated Friday August 26, bring to the Court's
attention Judge Pauley's recent decision in Capitol Records, Inc. v. MP3TUNES, LLC, No. 079931 (August 22, 2011). With respect to the scope of 17 U. S. C. § 512(c), Judge Pauley's
opinion in MP3Tunes simply follows Judge Stanton’s analysis in this case, which has been
addressed at length in the appellants' briefs and those of their supporting amici curiae. For all the
reasons set forth in those briefs, which need not be repeated here, Judge Stanton's analysis of 17
USC 512(c) is incorrect.
But insofar as it addressed the facts before it, the MP3Tunes ruling is instructive in other ways,
supporting reversal here, that appellees fail to mention.
Judge Pauley's decision rested in large part on the fact that there was "no evidence that MP3tunes
executives or employees had firsthand knowledge that [content on their site was] unauthorized. "
Slip Op. at 11. Here, by contrast, the record demonstrates knowledge on the part of YouTube and
Google executives about the infringing nature of the content on which the YouTube site
depended, and indeed that YouTube not only knew of such content, but positively sought to
attract and retain it. As Judge Stanton found, YouTube, 'welcomed' those infringements as a
means to attract users. SPA 9; Brief for Plaintiffs-Appellants filed December 3, 2010
("Appellants' Br. ") at 8-12.
In addition, Judge Pauley found it significant that the users of the MP3TUNES service did not
upload content there, but copied it from a wide variety of third party sites, and therefore lacked
knowledge that the content they were copying was infringing. Slip Op. at 10. By contrast, the
record in this case is replete with examples of users posting content to You Tube with
unmistakable notice that it was unauthorized and infringing. Appellants' Br. at 24.

Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, D.C.

Catherine O’Hagan Wolfe
Clerk, United States Court of Appeals for the Second Circuit
August 30, 2011
Page 2
Finally, Judge Pauley relied heavily on the absence of evidence that MP3tunes blinded itself to
infringing activity occurring on the site. Slip Op. at 11. You Tube, by contrast, created tracking
tools which identified infringing content, such as musical compositions for which appellees here
lacked any license, but nonetheless chose to exploit, rather than block that content, knowing full
well of its infringing nature. Appellants' Br. at 18-20.
In short, with respect to scope of § 512(c), the legal analysis in Capitol Records adds nothing,
but its assessment of the kinds of facts that would disentitle an internet service to the § 512(c)
defense shows why the decision below cannot stand.
Very truly yours,

Charles S. Sims
cc:

Counsel for Defendants-Appellees
David S. Stellings, Lieff, Cabreser, Heinmann & Stalling

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