The Football Association Premi v. Youtube, Inc.

Filing 428

AMICUS BRIEF, on behalf of Movant Computer & Communications Industry Association and NetCoalition, FILED. Service date 04/07/2011 by CM/ECF.[401947] [10-3342]

10-3270-cv
10-3342-cv
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________
VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY
MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and
BLACK ENTERTAINMENT TELEVISION, LLC,
Plaintiffs-Appellants,
v.
YOUTUBE, INC., YOUTUBE LLC, and GOOGLE, INC.,
Defendants-Appellees.
____________
(Additional Caption and Attorneys on Reverse)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
____________
BRIEF OF AMICI CURIAE COMPUTER & COMMUNICATIONS
INDUSTRY ASSOCIATION AND NETCOALITION IN SUPPORT OF
APPELLEES AND URGING AFFIRMANCE
___________

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 ROGERS &
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., and THE MUSIC FORCE, LLC,
Plaintiffs-Appellants,
and
ROBERT TUR, dba Los Angeles News Service, THE SCOTTISH
PREMIER LEAGUE LIMITED
Plaintiffs,
v.
YOUTUBE, INC., YOUTUBE LLC, and GOOGLE, INC.,
Defendants-Appellees
Markham C. Erickson
Holch & Erickson LLP and
Executive Director, NetCoalition
400 N. Capitol Street NW, Suite 585
Washington, DC 20001
[phone]
[e-mail]

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW,
Suite 800
Washington, D.C. 20036
[phone]
[e-mail]

Matthew Schruers
Vice President, Law & Policy
Computer & Communications
Industry Association
900 Seventeenth Street NW, 11th Floor
Washington, D.C. 20006
[phone]
[e-mail]
ii

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae state
that:
The Computer & Communications Industry Association (CCIA) represents
large, medium-sized, and small companies in the high technology products and
services sectors, including computer hardware and software, electronic commerce,
telecommunications and Internet products and services – companies that
collectively generate more than $250 billion in annual revenues. A complete list of
CCIA members is available at http://www.ccianet.org/members. No publicly held
corporation has an ownership stake of 10% or more in CCIA.
NetCoalition serves as the public policy voice for some of the world’s most
innovative Internet companies on legislative and administrative proposals affecting
the online realm. NetCoalition’s members include Amazon.com, Bloomberg LP,
eBay, IAC, Wikipedia, Yahoo!, and Google. No publicly held corporation has an
ownership stake of 10% or more in NetCoalition.

iii

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................. v
INTEREST OF AMICI .......................................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ................................... 2
ARGUMENT........................................................................................................... 6
I.

INTENTIONAL INDUCEMENT IS NOT A THEORY OF
SECONDARY COPYRIGHT LIABILITY SEPARATE FROM
CONTRIBUTORY INFRINGEMENT......................................................... 6

II. VIACOM MISSTATES THE STANDARD FOR INTENTIONAL
INDUCEMENT............................................................................................. 10
III. THE DMCA’S SAFE HARBORS APPLY TO ALL FORMS OF
INFRINGEMENT, INCLUDING INTENTIONAL INDUCEMENT ..... 14
IV. VIACOM SEEKS JUDICIAL CREATION OF A COPYRIGHT
REGIME THAT WOULD FRUSTRATE THE OBJECTIVES OF THE
COPYRIGHT LAWS ................................................................................... 17
A. THE COPYRIGHT ACT REFLECTS A DELIBERATE
BALANCE OF THE INTERESTS OF AUTHORS AND THE
PUBLIC ....................................................................................................... 17
B. TRADITIONAL CONTENT COMPANIES HAVE BEGUN TO
TAKE ADVANTAGE OF DIGITAL DISTRIBUTION
TECHNOLOGIES ..................................................................................... 21
C. THE INTERNET PROMOTES CREATIVITY.................................... 24
CONCLUSION ..................................................................................................... 28

iv

TABLE OF AUTHORITIES
Page
CASES
Arista Records LLC v. USENET.com, Inc.,
633 F.Supp.2d 124 (S.D.N.Y. 2009) ............................................................ 15
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001)........................................ 8
Bonito Boats v. Thunder Craft Boats, 489 U.S. 141 (1989) ................................... 17
CCC Information Serv. Inc. v. Maclean Hunter Market Reports, Inc.,
44 F.3d 61 (2d Cir. 1994) ............................................................................. 18
Columbia Pictures Industries v. Fung,
2009 U.S. Dist. LEXIS 122661 (C.D. Cal. 2009) ........................................ 15
Computer Associates Int’l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992) ......................................................................... 18
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ....................................................... 19
Gershwin Publishing Corp. v. Columbia Artists Management,
521 U.S. 844 (1997) ....................................................................................... 7
Kern River Gas Transmission Co. v. Coastal Corp.,
899 F.2d 1458 (5th Cir. 1990) ...................................................................... 18
MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 929 (2005).............................. passim
Network Automation v. Advanced Sys. Concepts, _ F.3d _,
2011 U.S. App. LEXIS 4488 (9th Cir. March 8, 2011) ................................. 4
Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007) .................. 9, 16, 27
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)........................ 15, 27
Perfect 10, Inc. v. Visa International Ass’n, 494 F.3d 788 (9th Cir. 2007).. 9, 11, 27
v

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ................................ 2
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ............. 5, 8, 17-18
White v. Samsung Electronics of America, Inc.,
989 F.2d 1512 (9th Cir. 1993) ...................................................................... 19
STATUTES AND REGULATIONS
17 U.S.C. § 1201..................................................................................................... 14
17 U.S.C. § 512(c), (d) ..................................................................................... 15, 16
17 U.S.C. § 512(i)................................................................................................... 14
17 U.S.C. § 512(l)................................................................................................... 17
35 U.S.C. § 271(b), (c) ............................................................................................. 7
OTHER SOURCES
Ed Christman, Apple Solidifies Lead Among U.S. Music Accounts, As Mobile
Merchants, Fade, BILLBOARD.BIZ, May 22, 2010,
http://www.billboard.biz/bbbiz/content_display/magazine/upfront/e3i12fe2557a93
82597671a522cc1cc901d ....................................................................................... 22
Secretary Hillary Clinton, Remarks on Internet Freedom, The Newseum,
Washington, D.C. (Jan. 21, 2010), available at
http://www.state.gov/secretary/rm/2010/01/135519.htm ......................................... 3
Flickr Blog, Sept. 19, 2010, http://blog.flickr.net/en/2010/09/19/5000000000/ .... 26
Government Accountability Office, Intellectual Property: Observation on Efforts
to Quantify the Economic Effects of Counterfeit and Pirated Goods; The Impact of
Innovation and the Role of IP Rights on U.S. Productivity, Competitiveness, Jobs,
Wages and Exports, GAO-10-423 (April 12, 2010)............................................... 21
Mark Hefflinger, Report: Netflix Streaming Rights May Cost $2 Billion through
2011, DIGITAL MEDIA WIRE, Oct. 28, 2010,
vi

http://www.dmwmedia.com/news/2010/10/28/report-netflix-streaming-rights-maycost-2-billion-through-2011.................................................................................... 23
H.R. Rep. 105-551 (Part II) .................................................................................... 16
IFPI publishes Digital Music Report 2010, Jan. 21, 2010,
http://www.ifpi.org/content/section_resources/dmr2010.html ............................... 22
Internet 2009 in numbers, Jan. 22, 2010,
http://royal.pingdom.com/2010/01/22/internet-2009-in-numbers/......................... 26
Internet 2010 in numbers, Jan. 12, 2011,
http://royal.pingdom.com/2011/01/12/internet-2010-in-numbers/........................... 4
Joe Karaganis, Media Piracy in Emerging Economies: Price, Market Structure and
Consumer Behavior, available at
http://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf
................................................................................................................................ 24
Mike Melanson, eBook Sales to Hit $1 Billion By Year’s End, $3 Billion by 2015,
READWRITEWEB, Nov. 8, 2010,
http://www.readwriteweb.com/archives/ebook_sales_to_hit_1_billion_by_years_e
nd_3_billio.php ....................................................................................................... 23
Claire Cain Miller, YouTube Ads Turn Videos into Revenue, N.Y. TIMES, Sep. 2,
2010, http://www.nytimes.com/2010/09/03/technology/03youtube.html. ............. 25
President Barack Obama Remarks at Town Hall Meeting with Future Chinese
Leaders, Museum of Science and Technology, Shanghai, China (Nov. 16, 2009),
available at http://www.whitehouse.gov/the-press-office/remarks-president-barackobama-town-hall-meeting-with-future-chinese-leaders............................................ 3
Don Reisinger, YouTube: 35 hours of video uploaded every minute, CNET NEWS,
Nov. 11, 2010, http://news.cnet.com/8301-13506_3-20022481-17.html?part=r ... 26
Christopher Rick, Online Video Pushes Microsoft Xbox Live Sales Over $1
Billion, REELSEO, July 8, 2010, http://www.reelseo.com/video-pushes-xbox-livesales/ ....................................................................................................................... 23
S. Rep. 105-190 ...................................................................................................... 16
vii

M.G. Siegler, Kindle Books Outselling Hardcover Books, ‘Tipping Point’ Reached,
Amazon Says, TECHCRUNCH, July 19, 2010,
http://techcrunch.com/2010/07/19/kindle-sales/..................................................... 23
Ethan Smith, Apple Finally Snares Beatles, WALL ST. JOURNAL, Nov. 16, 2010,
http://online.wsj.com/article/SB10001424052748703326204575617004052395816
.html ........................................................................................................................ 24
Michael D. Smith, Converting Pirates Without Cannibalizing Purchasers: The
Impact of Digital Distribution on Physical Sales and Internet Piracy (2010) ....... 23
Kevin Voigt, So you wanna be a YouTube star?, CNN, Sep. 24, 2010,
http://edition.cnn.com/2010/BUSINESS/09/24/youtube.hitmakers.dawson/......... 25
Wikipedia: About, http://en.wikipedia.org/wiki/Wikipedia:About ........................ 26
Jenna Wortham, From Viral Video to Billboard 100, N.Y. TIMES, Sep. 5, 2010,
http://www.nytimes.com/2010/09/06/business/media/06tune.html ....................... 25

viii

BRIEF OF AMICI CURIAE COMPUTER & COMMUNICATIONS
INDUSTRY ASSOCIATION AND NETCOALITION IN SUPPORT OF
APPELLEES AND URGING AFFIRMANCE
INTEREST OF AMICI
The Computer & Communications Industry Association (CCIA) represents
large, medium-sized, and small companies in the high technology products and
services sectors, including computer hardware and software, electronic commerce,
telecommunications and Internet products and services – companies that
collectively generate more than $250 billion in annual revenues. A complete list of
CCIA members is available at http://www.ccianet.org/members.
NetCoalition serves as the public policy voice for some of the world’s most
innovative Internet companies on legislative and administrative proposals affecting
the online realm. NetCoalition’s members include Amazon.com, Bloomberg LP,
eBay, IAC, Wikipedia, Yahoo!, and Google.1
Viacom contends that affirmance of the decision below would “radically
transform the functioning of the copyright systems and severely impair, if not
completely destroy, the value of many copyrighted creations.” Viacom Brief at 3.
1

Amici hereby state pursuant to Rule 29.1 of the Rules of this Court that
although Google is a member of both CCIA and NetCoalition, none of the parties
to either of these cases (i.e., Plaintiffs-Appellants or Respondents-Defendants) nor
their counsel authored this brief in whole or in part; nor did any party or any
party’s counsel contribute money intended to fund preparing or submitting the
brief; nor did anyone else other than Amici and their counsel contribute money that
was intended to fund preparing or submitting this brief.

Viacom has it exactly backwards; reversal of the decision below would radically
transform the functioning of the copyright system and severely impair, if not
completely destroy, the value of many of the services provided by CCIA and
NetCoalition members. Under the liability regime proposed by Viacom, many
Internet companies would no longer be able to provide a free and open platform for
user generated content. The potential cost of liability would force Internet
companies to charge for their currently free services, or monitor their users’
communications in search of potentially infringing material. Either approach
would harm CCIA and NetCoalition members, as well as their hundreds of
millions of regular users.
INTRODUCTION AND SUMMARY OF ARGUMENT
Justice Stevens in Reno v. American Civil Liberties Union, 521 U.S. 844,
850 (1997) wrote that “[t]he Internet is a unique and wholly new medium of
worldwide human communication.” He observed that “It is no exaggeration to
conclude that the content on the Internet is as diverse as human thought.” Id. at
852. From the user’s perspective, the Web is comparable “to both a vast library
including millions of readily available and indexed publications and a sprawling
mall offering goods and services.” Id. at 853. From the publishers’ point of view,
the Web “constitutes a vast platform from which to address and hear from a
worldwide audience of millions of readers, viewers, researchers, and buyers. Any

2

person or organization with a computer connected to the Internet can ‘publish’
information.” Id.
In the thirteen years since Justice Stevens wrote his opinion in Reno v.
ACLU, the Internet has become even more central to the lives of Americans and
people around the world.2 Thus, even more care must be taken to avoid application
of the law in a manner that endangers this essential platform for commerce and
communications.3 As the Ninth Circuit stated just last month, “[w]e must be

2

When visiting China in 2009, President Obama said that access to information
was a universal right. He added,
“I am a big believer in technology and I’m a big believer in openness
when it comes to the free flow of information. I think that the more freely
information flows, the stronger the society becomes, because then citizens
of countries around the work can hold their own governments accountable.
They can begin to think for themselves. That generates new ideas. It
encourages creativity. And so I’ve always been a strong supporter of open
Internet use….I can tell you that in the United States, the fact that we
have…unrestricted Internet access is a source of strength, and I think it
should be encouraged.”
President Barack Obama Remarks at Town Hall Meeting with Future Chinese
Leaders, Museum of Science and Technology, Shanghai, China (Nov. 16, 2009),
available at http://www.whitehouse.gov/the-press-office/remarks-president-barackobama-town-hall-meeting-with-future-chinese-leaders. Last year, Secretary of
State Hillary Clinton said: “We will promote new tools of communication, so
people are empowered to connect with one another – and, in repressive societies,
to do so with security. We will support a free and open Internet, so individuals
have the information to make up their own minds.” Secretary Hillary Clinton,
Remarks on Internet Freedom, The Newseum, Washington, D.C. (Jan. 21, 2010),
available at http://www.state.gov/secretary/rm/2010/01/135519.htm.
3
There are over 1.97 billion Internet users worldwide, with over 262 million
Internet users in North America. More than 10 trillion non-spam emails were sent
in 2010. At the end of 2010, there were over 255 million websites, and 88.8 million
3

acutely aware of excessive rigidity when applying the law in the Internet context;
emerging technologies require a flexible approach.” Network Automation v.
Advanced Sys. Concepts, _ F.3d _, 2011 U.S. App. LEXIS 4488 (9th Cir. March 8,
2011).
The positions advocated by Viacom in this case would do exactly that. It
advances secondary liability theories that would treat virtually all providers of
digital technology products and services as infringers. Viacom also offers an
interpretation of the Digital Millennium Copyright Act (DMCA) so narrow that it
would provide little shelter against liability, contrary to the intent of Congress.
This brief focuses on aspects of the case relating to intentional inducement, a
dimension of secondary liability addressed at length by the Supreme Court in
MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). First, the brief argues
that intentional inducement is not a new form of secondary copyright infringement
liability distinct from contributory infringement. Rather, the Supreme Court in
Grokster redefined contributory infringement as intentionally inducing
infringement.
Second, the brief demonstrates that Viacom distorts the Grokster Court’s
finely-tuned test for determining whether a distributor of a technology product or
service has intentionally induced infringement. Viacom ignores the Supreme
.com domain names. Internet 2010 in numbers, Jan. 12, 2011,
http://royal.pingdom.com/2011/01/12/internet-2010-in-numbers/.
4

Court’s careful calibration of the inducement doctrine to ensure that it “does
nothing to compromise legitimate commerce or discourage innovation having a
lawful promise.” Id. at 937.
Third, the brief shows that the safe harbors of the DMCA apply to all forms
of copyright liability. Contrary to Viacom’s suggestion, intentional inducement is
not categorically ineligible for the safe harbor’s protections.
Finally, the brief contends that Viacom attempts to upset the balance
Congress and the courts have established in our intellectually property (IP) laws.
The Supreme Court has observed that the IP laws strike a “difficult balance
between the interests of authors and inventors in the control and exploitation of
their writings and discoveries on the one hand, and society’s competing interest in
the free flow of ideas, information, and commerce on the other….” Sony Corp. v.
Universal City Studios, Inc., 464 U.S. 417, 429 (1984). While the Internet has
posed challenges to traditional distributors of copyrighted works, it has also
presented a wide range of new opportunities for the creation and distribution of
creative works.

5

ARGUMENT
I. INTENTIONAL INDUCEMENT IS NOT A THEORY OF SECONDARY
COPYRIGHT LIABILITY SEPARATE FROM CONTRIBUTORY
INFRINGEMENT.
From the beginning of this case, Viacom has argued that intentional
inducement is a species of secondary copyright liability distinct from contributory
infringement and vicarious liability. In its complaint filed on March 13, 2007,
Viacom included three counts relating to secondary liability: Count IV –
Inducement of Copyright Infringement; Count V – Contributory Copyright
Infringement; and Count VI – Vicarious Copyright Infringement. Viacom
continues to take this position on appeal, asserting that “Grokster liability is
predicated on the intentional facilitation of infringement.” Viacom Brief at 57.
Contrary to Viacom’s assertion, intentional inducement is not a theory of
secondary copyright liability distinct from contributory infringement. Rather, the
Supreme Court in MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005),
held that “[o]ne infringes contributorily by intentionally inducing or encouraging
direct infringement.” In other words, intentional inducement is the basis of
contributory infringement liability. To be sure, in the Patent Act active
inducement and contributory infringement are separate causes of action codified at

6

35 U.S.C. §§ 271(b) and 271(c).4 But in the judicially created secondary copyright
liability framework, intentional inducement is the same as contributory
infringement.
The Grokster Court merged contributory infringement with intentional
inducement by defining contributory infringement as intentional inducement.
Previously, a contributory infringer was “one who, with knowledge of the
infringing activity, induces, causes or materially contributes to the infringing
conduct of another.” Gershwin Publishing Corp. v. Columbia Artists
Management, 443 F.2d 1159, 1162 (2d Cir. 1971)(emphasis supplied). The
Grokster Court replaced the knowledge prong of the contributory infringement test
with intent, and thus created a new formulation: “[o]ne infringes contributorily by
intentionally inducing or encouraging direct infringement.” Grokster, 545 U.S. at
930 (emphasis supplied).
This formulation is narrower than the Gershwin formulation, in that the
Gershwin formulation appeared to impose liability on a person who engaged in an
activity that he knew contributed to infringement, even if that was not his intent.
This is precisely the situation the Supreme Court addressed in Sony Corp. v.
4

35 U.S.C. § 271(b) provides that “[w]hoever actively induces infringement of a
patent shall be liable as an infringer.” 35 U.S.C. § 271(c) provides that “[w]hoever
offers to sell…a component of a patented machine… knowing the same to be
especially made or especially adapted for use in an infringement of such patent,
and not a staple article of commerce … suitable for substantial noninfringing use,
shall be liable as a contributory infringer.”
7

Universal City Studios, 464 U.S. 417 (1984). Sony continued to distribute the
Betamax device even though it knew that some users were likely to employ it to
infringe. To avoid imposing liability on Sony, the Supreme Court imported the
staple article of commerce doctrine from section 271(c) of the Patent Act, and
declared that the sale of copying equipment did not constitute contributory
copyright infringement so long as the equipment was “merely … capable of
substantial noninfringing uses.” Sony, 464 U.S. at 442.
Lower courts viewed Sony as an exception to contributory infringement as
formulated in Gershwin, but had difficulty in applying Sony and Gershwin in a
consistent manner to Internet-related products and services. Compare, e.g., A&M
Records v. Napster, 239 F.3d 1004 (9th Cir. 2001), with MGM Studios Inc. v.
Grokster, Ltd., 380 F.3d 1154 (9th Cir. 2004), rev’d, 545 U.S. 913 (2005). The
Supreme Court in Grokster resolved the confusion by clarifying that contributory
infringement requires a showing of intent to encourage infringement, rather than
mere knowledge of the infringing activity. The Grokster Court explained how
Sony fit into this reformulation of contributory infringement: “Sony barred
secondarily liability based on presuming or imputing intent to cause infringement
solely from the design or distribution of a product capable of substantial lawful
use, which the distributor knows is in fact used for infringement.” Grokster, 545
U.S. at 933. Thus, although Sony knew that the Betamax could be used for

8

infringing purposes, the Sony rule “limits imputing culpable intent as a matter of
law from the characteristics or uses of a distributed product.” Id. at 934. Since
“[t]here was no evidence that Sony had expressed an object of bringing about
taping in violation of copyright or had taken active steps to increase its profits from
unlawful taping,” id. at 931, and since such an unlawful objective could not be
presumed, Sony was not liable for contributory infringement.
In contrast, it appears that Grokster did intend for users to employ their
software to infringe. And the Grokster Court explained that “nothing in Sony
requires courts to ignore evidence of intent if there is such evidence….” Id. at 934.
If the evidence at trial demonstrates that the defendants intended to encourage
infringement, they can be found liable for infringement – even if their products are
capable of substantial noninfringing uses.
This case is this court’s first opportunity since Grokster to consider the
standards for secondary copyright liability. This court should clarify the
relationship between contributory infringement and intentional inducement. 5
Even if this court is disinclined to find that Grokster narrowed Gershwin by
5

The need for clarification cannot be overstated. Within a five month period,
two different panels of the Ninth Circuit articulated different tests for contributory
infringement in different cases involving the same plaintiff. Compare Perfect 10,
Inc. v. Amazon.com, 508 F.3d 1146, 1170 (9th Cir. 2007) with Perfect 10, Inc. v.
Visa International Service Ass’n, 494 F.3d 788, 795 (9th Cir. 2007).

9

replacing the knowledge requirement with an intent requirement, there should be
no question that intentional inducement is not a separate cause of action from
contributory infringement.
II. VIACOM MISSTATES THE STANDARD FOR INTENTIONAL
INDUCEMENT.
Regardless of whether intentional inducement is a subset of contributory
infringement or identical to it, the Supreme Court in Grokster provided a very clear
standard for evaluating the liability of the provider of technology products or
services: “one who distributes a device with the object of promoting its use to
infringe copyright, as shown by clear expression or other affirmative steps taken to
foster infringement, is liable for the resulting acts of infringement by third parties.”
Grokster, 545 U.S. at 919. Rather than quote this holding, which appears in the
second sentence of the opinion, Viacom instead paraphrases dicta from deep in the
opinion. Viacom Brief at 57.
This paraphrase is no accident. Viacom obviously seeks to avoid the
Grokster Court’s requirement that the defendant’s objective of promoting a
technology’s use to infringe copyright must be “shown by clear expression or other
affirmative acts.” Id. The Supreme Court stressed that the intent to encourage
infringement must be blatant: “[i]f liability for inducing infringement is ultimately
found, it will not be on the basis of presuming or imputing fault, but from inferring
10

a patently illegal objective from statements and actions showing what that
objective was.” Grokster, 545 U.S. at 941. Similarly, the Court insisted on
“unequivocal indications of unlawful purpose.” Id. at 938. The Court emphasized
that “mere knowledge of infringing potential or of actual infringing uses would not
be enough here to subject a distributor to liability. Nor would ordinary acts
incident to product distribution, such as offering technical support or product
updates, support liability in themselves.” Id. at 937. Interpreting Grokster, the
Ninth Circuit found that “to establish inducement liability, it is crucial to establish
that the distributors ‘communicated an inducing message to their users….’”
Perfect 10, Inc., v. Visa International Service Ass’n, 494 F.3d 788, 801 (9th Cir.
2007)(citing Grokster, 545 U.S. at 937).6 In this case, unlike in Grokster, there are
6

The language of the opinion suggests that liability should attach only if the
defendant had the specific intent to cause infringement: “the object of promoting
its use to infringe,” Grokster, 545 U.S. at 919, “their principal object was use of
their software to download copyrighted works,” id. at 926, “an actual purpose to
cause infringing use,” id. at 934, “statements or actions directed to promoting
infringement,” id. at 935, “active steps taken to encourage direct infringement,
such as advertising an infringing use or instructing how to engage in an infringing
use, show an affirmative intent that the product be used to infringe,” id. at 936,
“purposeful, culpable expression and conduct,” id. at 937, “active steps were taken
with the purpose of bringing about infringing acts,” id. at 938, “acted with a
purpose to cause copyright violations,” id., “unequivocal indications of unlawful
purpose,” id., “a principal, if not exclusive, intent on the part of each to bring
about infringement,” id. at 939, “intentional facilitation of their users’
infringement,” id., “unlawful objective,” id., “the distributor intended and
encouraged the product to be used to infringe,” id. at 940, n.13, “a purpose to cause
and profit from third-party acts of copyright infringement,” id. at 941, and
“patently illegal objective.” Id.
11

no unequivocal indications of unlawful purpose or communication of an inducing
message to users.
Viacom also selectively quotes phrases from Grokster, thereby missing the
qualifications and nuance in the Supreme Court’s opinion. With respect to a
company not taking affirmative steps such as filtering to prevent infringement, the
Court said, “[o]f course, in the absence of other evidence of intent, a court would
be unable to find contributory infringement liability merely based on a failure to
take affirmative steps to prevent infringement, if the device was otherwise capable
of substantial noninfringing uses. Such a holding would tread too closely to the
Sony safe harbor.” Grokster, 545 U.S. at 939 n.12.
Similarly, with respect to the defendants’ adopting an advertising-based
business model that could benefit from traffic stimulated by infringing material,
the Court stated that “[t]his evidence alone would not justify an inference of
unlawful intent….” Id. at 940. The Court also described a business model that
could benefit from infringement as evidence of intent that is only a “complement to
the direct evidence of unlawful objective.” Id. at 939. In this case, there is no
direct evidence of unlawful objective. At most, the evidence shows YouTube’s
owners’ awareness of infringing activity and the possibility that it might benefit
them by increasing the market value of YouTube. This awareness does not
constitute “clear expression or other affirmative acts taken to foster infringement.”

12

Viacom misleadingly suggests that noninfringing uses have no relevance to
inducement liability. Viacom Brief at 60 (“the existence of such substantial
noninfringing uses is not a defense to intentional facilitation of copyright
infringement”)(emphasis in original). To the contrary, the Grokster Court stated,
“where an article is good for nothing else but infringement, there is no
legitimate public interest in its unlicensed availability, and there is no
injustice in presuming or imputing an intent to infringe. Conversely,
the doctrine absolves the equivocal conduct of selling an item with
substantial lawful as well as unlawful uses, and limits liability to
instances of more acute fault that the mere understanding that some of
one’s products will be misused. It leaves breathing room for
innovation and a vigorous commerce.”
Grokster, 545 U.S. at 932-33 (internal citations and quotation marks omitted).7
The Grokster Court states that the inducement rule “premises liability on
purposeful, culpable expression and conduct, and thus does nothing to compromise
7

Viacom repeatedly quotes a statement by a YouTube employee that “probably
75-80% of our views came from copyrighted material.” E.g., Viacom Brief at 10,
60. This is a meaningless statement. In fact, virtually 100% of the views were of
copyrighted material, given that copyright comes into existence at the instant of
fixation, and few of the videos were in the public domain. When a user uploads
material she created, she is uploading copyrighted material. When Viacom’s
contractors secretly uploaded Viacom’s own content to YouTube under assumed
names, this too was copyrighted material. Even if the employee meant that 75% of
the views came from material uploaded without the authorization of the copyright
owner, there is no way she or anyone else could assess with any accuracy whether
those uploads likely infringed copyright. This is because so many of the videos
arguably fall within the fair use privilege. Many videos on YouTube are short
clips from news broadcasts or political satires such as the Daily Show or the
Colbert Report. Others are “mash-ups” that are clearly transformative. In this
respect, YouTube differs from services such as Napster or Grokster, where a
plausible fair use argument applied to very little of the material unauthorized by
the copyright owner.
13

legitimate commerce or discourage innovation having a lawful promise.” Id. at
937. The vital role YouTube plays today in political, cultural, and social discourse,
in addition to the substantial revenue it generates for copyright owners,
demonstrates that it was “innovation having a lawful promise” at the time the
alleged infringement at issue in this case occurred.
III. THE DMCA’S SAFE HARBORS APPLY TO ALL FORMS OF
INFRINGEMENT, INCLUDING INTENTIONAL INDUCEMENT.
When Congress enacted the DMCA in 1998, it established the framework
for copyright enforcement in the Internet environment. The framework has two
basic elements. First, in Title I, Congress implemented the provisions of the World
Intellectual Property Organization Internet Treaties regarding the circumvention of
technical protection measures. 17 U.S.C. § 1201. Second, in Title II, Congress
fashioned limitations on copyright liability for Internet service providers that
created incentives for the services providers to work cooperatively with copyright
owners. To qualify for the safe harbors, a service provider had to adopt and
reasonably implement “a policy that provides for the termination in appropriate
circumstances of the subscribers and account holders of the service provider’s
system or network who are repeat infringers….” 17 U.S.C. § 512(i)(1)(A).
Additionally, providers of hosting and search services had to comply with the
statute’s notice and takedown regime. Upon receiving a compliant notice of
14

claimed infringement from the copyright owner, the service provider had to
“respond[] expeditiously to remove, or disable access to, the material that is
claimed to be infringing….” 17 U.S.C. § 512(c)(1)(C), (d)(3).
The notice and takedown regime carefully balances the interests of copyright
owners and service providers. In essence, it provides copyright owners with
automatic injunctive relief stopping alleged infringement without stepping into
court. At the same time, it shelters service providers from liability for infringing
activity initiated by millions of third parties. Although both copyright owners and
service providers share responsibility under the DMCA for enforcing copyrights,
the “DMCA notification procedures place the burden of policing copyright
infringement – identifying the potentially infringing material and adequately
documenting infringement – squarely on the owners of copyright.” Perfect 10, Inc.
v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).
Viacom attempts to upset the DMCA’s balance by suggesting that the safe
harbors per se cannot apply to intentional inducement. See Viacom Brief at 30.
Dicta in two district court decisions could be read as indicating that intentional
inducement is categorically excluded from the safe harbors’ protections. Arista
Records LLC v. USENET.com, Inc., 633 F.Supp.2d 124 (S.D.N.Y. 2009),
Columbia Pictures Industries, v. Fung, 2009 U.S. Dist. LEXIS 122661 (C.D. Cal.
2009). These courts, and Viacom, are incorrect. The DMCA provides that “[a]

15

service provider shall not be liable for monetary relief … for infringement of
copyright,” 17 U.S.C. §§ 512(c) and (d), provided that it meets certain conditions.
The plain language of the statute does not exclude certain forms of copyright
liability from its scope; it provides protection from all forms of copyright
infringement liability. Likewise, the DMCA’s legislative history explains that the
safe harbors “protect qualifying service providers from liability for all monetary
relief for direct, vicarious, and contributory infringement.” H.R. Rep. 105-551
(Part II), at 50; S. Rep. 105-190, at 19-20. The Ninth Circuit has also held that
“the limitations on liability contained in 17 U.S.C. § 512 protect secondary
infringers as well as direct infringers.” Perfect 10, Inc., v. Amazon.com, 508 F.3d
1146, 1175 (9th Cir. 2007).
Without question, in a particular case the facts that prove inducement may
also disqualify the service provider from a safe harbor under sections 512(c)(1)(A)
and (B) or 512(d)(1)(A) and (B). Nonetheless, nothing in the statue or its
legislative history even remotely hints that inducement – or any other forms of
liability -- is categorically ineligible for protection. Determining DMCA eligibility
requires courts to interpret and apply the statutory requirements, which are
different from the elements of the judicially created principles of secondary
liability. Whether a defendant qualifies for a DMCA safe harbor is a different

16

inquiry from whether the defendant is liable for inducement.8 The two questions
should not be conflated.
IV. VIACOM SEEKS JUDICIAL CREATION OF A COPYRIGHT
REGIME THAT WOULD FRUSTRATE THE OBJECTIVES OF THE
COPYRIGHT LAWS.
A. THE COPYRIGHT ACT REFLECTS A DELIBERATE BALANCE
OF THE INTERESTS OF AUTHORS AND THE PUBLIC.
Our IP laws are based on the balancing of the interests of authors and
inventors on the one hand with the interests of the public on the other. Quoting
Thomas Jefferson, the Supreme Court in Bonito Boats v. Thunder Craft Boats
recognized that “federal patent law has been about the difficult business ‘of
drawing a line between things which are worth to the public the embarrassment of
an exclusive patent, and those which are not.’” Bonito Boats, Inc., v. Thunder Craft
Boats, Inc., 489 U.S. 141, 148 (1989) (quoting 13 Writings of Thomas Jefferson
335 (Memorial ed. 1904)). The Court observed that “[t]he Patent Clause itself
reflects a balance between the need to encourage innovation and the avoidance of
monopolies which stifle competition without any concomitant advance in the
‘Progress of Science and useful Arts.’” Id. at 146. The Supreme Court stated in
Sony v. Universal City Studios that

8

See, e.g., 17 U.S.C. § 512(l)(a service provider’s failure to qualify for a DMCA
safe harbor “shall not bear adversely upon consideration of a defense by the service
provider that the service provider’s conduct is not infringing.”)
17

it is Congress that has been assigned the task of defining the scope of
the limited monopoly that should be granted to authors or inventors in
order to give the public appropriate access to their work product ….
[T]his task involves a difficult balance between the interests of
authors and inventors in the control and exploitation of their writings
and discoveries on the one hand, and society’s competing interest in
the free flow of ideas, information, and commerce on the other ….
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). This court in
Computer Associates Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992),
recognized that “the copyright law seeks to establish a delicate equilibrium. On
the one hand, it affords protection to authors as an incentive to create, and, on the
other hand, it must appropriately limit the extent of that protection so as to avoid
the effects of monopolistic stagnation.” See also CCC Information Serv. Inc. v.
Maclean Hunter Market Reports, Inc. 44 F.3d 61, 69 (2d Cir. 1994). Likewise, the
Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing
concerns of providing incentive to authors to create and of fostering competition in
such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d
1458, 1463 (5th Cir. 1990).
More recently, the Supreme Court has addressed balancing the interests of
the entertainment and technology industries. In Grokster, the Supreme Court
recognized that the administration of copyright law required “a sound balance
between the respective values of supporting creative pursuits through copyright
protection and promoting innovation in new communication technologies.”

18

Grokster, 545 U.S. at 928. The Court noted that “[t]he more artistic protection is
favored, the more technological innovation may be discouraged; the administration
of copyright law is an exercise in managing the trade-off.” Id.
Understanding the importance of maintaining balance between the various
interests served by the intellectual property laws, the Chief Judge of the U.S. Court
of Appeals for the Ninth Circuit, Alex Kozinski, has recognized that
Overprotecting intellectual property is as harmful as underprotecting
it. Creativity is impossible without a rich public domain. Nothing
today, likely nothing since we tamed fire, is genuinely new: Culture,
like science and technology, grows by accretion, each creator building
on the works of those who came before. Overprotection stifles the
very creative force it’s supposed to nurture.
White v. Samsung Electronics of America, Inc., 989 F.2d 1512, 1513 (9th
Cir.)(Kozinski, J., dissenting), cert. denied, 113 S. Ct. 2443 (1993). Chief Judge
Kozinski concluded that “[t]his is why intellectual property law is full of careful
balances between what’s set aside for the owner and what’s left in the public
domain for the rest of us.” Id. at 1516.
The Supreme Court’s intellectual property cases typically concern
substantive rights rather than enforcement procedures. But in Fogerty v. Fantasy,
Inc., 510 U.S. 517, 527 (1994), the Court explained the importance of maintaining
a level litigation playing field so that defendants would be encouraged to assert
meritorious defenses:

19

Because copyright law ultimately serves the purpose of enriching the
general public through access to creative works, it is peculiarly
important that the boundaries of copyright law be demarcated as
clearly as possible. To that end, defendants who seek to advance a
variety of meritorious copyright defenses should be encouraged to
litigate them to the same extent that plaintiffs are encouraged to
litigate meritorious claims of infringement …. [A] successful defense
of a copyright infringement action may further the policies of the
Copyright Act every bit as much as a successful prosecution of an
infringement claim by the holder of a copyright.
Viacom seeks to tilt the copyright laws in the direction of the entertainment
industry. Under its expansive interpretation of Grokster, virtually every
technology company would be liable for intentional inducement because it profits
from the distribution of a technology that it knows some users employ for
infringing purposes. And under Viacom’s narrow interpretation of the DMCA, the
safe harbor would apply only to the first takedown notice. After that, the service
provider would have a general awareness of facts of circumstances from which
infringing activity is apparent.

Viacom’s approach would obstruct “innovation in

new communications technologies,” Grokster, 545 U.S. at 928, to the detriment of
the public.

20

B. TRADITIONAL CONTENT COMPANIES HAVE BEGUN TO TAKE
ADVANTAGE OF DIGITAL DISTRIBUTION TECHNOLOGIES.
Without question, the availability of infringing content on the Internet has
resulted in some copyright owners losing some sales.9 Nonetheless, numerous
9

It is difficult to quantify the impact of this infringement. See Government
Accountability Office, Intellectual Property: Observation on Efforts to Quantify
the Economic Effects of Counterfeit and Pirated Goods; The Impact of Innovation
and the Role of IP Rights on U.S. Productivity, Competitiveness, Jobs, Wages and
Exports, GAO-10-423 (April 12, 2010) at 1. The GAO asserted that the lack of
data is the primary challenge for quantifying the impact of infringement. The
GAO report quoted a 2008 OECD study that found that “available information on
the scope and magnitude of counterfeiting and piracy provides only a crude
indication of how widespread they may be….” Id. at 16. The OECD study further
stated that “data have not been systematically collected or evaluated and, in many
cases, assessments ‘rely excessively on fragmentary and anecdotal information;
where data are lacking, unsubstantiated opinions are often treated as facts.’” Id.
The GAO observed that the U.S. government has relied upon rightsholder statistics
on infringement, but “industry associations do not always disclose their proprietary
data sources and methods, making it difficult to verify their estimates.” Id.
The GAO report stated that in the absence of real data on infringement, methods
for calculating estimates of economic losses involve assumptions that have a
significant impact on the resulting estimate. Two key assumptions are the rate at
which a consumer is willing to switch from an infringing good to a genuine
product (substitution rate); and value of the infringing good. The GAO suggested
that assuming a one-to-one substitution rate at the manufacturer’s suggest retail
price could lead to lead to a dramatic overstatement of economic loss. The GAO
noted that some copyright industry studies made precisely this problematic
assumption. Id. at 21. In other instances, the studies failed altogether to reveal
their assumptions. Id. The GAO stated that “[u]nless the assumptions about
substitution rates and valuations of counterfeit goods are transparently explained,
experts observed that it is difficult, if not impossible, to assess the reasonableness
of the resulting estimate.” Id. at 18.
The GAO report concluded that “it is difficult, if not impossible, to quantify the
net effect of counterfeiting and piracy on the economy as a whole.” Id. at 16. The
GAO also stated that the “net effect” of infringement on the economy “cannot be
determined with any certainty.” Id. at 18.
21

industries have developed business strategies that have had the effect of reducing
the demand for infringing products. Software companies, for example, have
licensed computer manufacturers to preload software on their computers prior to
consumer purchase. Video game companies offer multi-player game platforms
accessible only to authorized users. Some entertainment companies license their
content for online distribution at low or no cost. These strategies succeed when
they are designed and implemented by industry participants with a deep
understanding of the relevant products, technology delivery platforms, and
consumers.
Examples of successful business models for the digital distribution of
content include:
• iTunes is now the largest music retailer in the United States, accounting for
more than 25% of overall music sales.10 There are over 400 legitimate
online music services, with a total revenue of $4.2 billion.11
• Amazon now sells more ebooks for the Kindle than hardcover books.12
eBook sales in the U.S. are expected to rise from a current $1 billion to $3
billion in 2015.13
10

Ed Christman, Apple Solidifies Lead Among U.S. Music Accounts, As Mobile
Merchants, Fade, BILLBOARD.BIZ, May 22, 2010,
http://www.billboard.biz/bbbiz/content_display/magazine/upfront/e3i12fe2557a93
82597671a522cc1cc901d.
11
IFPI publishes Digital Music Report 2010, Jan. 21, 2010,
http://www.ifpi.org/content/section_resources/dmr2010.html.
22

• Netflix is expected to pay rightsholders over $2 billion for streaming rights
through 2011.14
• X-Box Live generated over $1 billion in the last fiscal year, with revenues
driven by sales of films and television shows.15
Studies show that the vast majority of consumers desire legal sources of online
content. They turn to infringing content when convenient and affordable legitimate
content is not available.16

12

M.G. Siegler, Kindle Books Outselling Hardcover Books. ‘Tipping Point’
Reached, Amazon Says, TECHCRUNCH, July 19, 2010,
http://techcrunch.com/2010/07/19/kindle-sales/.
13
Mike Melanson, eBook Sales to Hit $1 Billion By Year’s End, $3 Billion by
2015, READWRITEWEB, Nov. 8, 2010,
http://www.readwriteweb.com/archives/ebook_sales_to_hit_1_billion_by_years_e
nd_3_billio.php.
14
Mark Hefflinger, Report: Netflix Streaming Rights May Cost $2 Billion
through 2011, DIGITAL MEDIA WIRE, Oct. 28, 2010,
http://www.dmwmedia.com/news/2010/10/28/report-netflix-streaming-rights-maycost-2-billion-through-2011.
15
Christopher Rick, Online Video Pushes Microsoft Xbox Live Sales Over $1
Billion, REELSEO, July 8, 2010, http://www.reelseo.com/video-pushes-xbox-livesales/.
16
Michael D. Smith, Converting Pirates Without Cannibalizing Purchasers: The
Impact of Digital Distribution on Physical Sales and Internet Piracy (2010). In
this context, it is worth noting that the holders of the copyrights in the Beatles
catalog have just authorized the sale of Beatles music on the iTunes store – seven
years after the iTunes store began operating. Ethan Smith, Apple Finally Snares
Beatles, WALL ST. JOURNAL, Nov. 16, 2010,
http://online.wsj.com/article/SB10001424052748703326204575617004052395816
.html. Inexpensive legitimate distribution models are also essential to reducing
infringement in the developing world. “The key question for media access and the
legalization of media markets … has less to do with enforcement than with
23

C. THE INTERNET PROMOTES CREATIVITY.
As difficult as it is to measure the economic impact of online infringement,
it is even more difficult to measure the effect of the Internet on the overall state of
creative activity. Even if online infringement has led to lost revenue for some
entertainment companies, and that lost revenue has in turn resulted in less
investment in new creative activity by those companies, this negative impact must
be weighed against the many positive effects the Internet has had on creative
activity.
As discussed above, services such as iTunes, Kindle, Netflix and YouTube
enable existing entertainment companies to distribute their content with significant
compensation, either from license fees or advertising revenues. These companies
also have learned how to use services such as YouTube, Facebook, MySpace, and
Twitter to promote their products. Indeed, discovery in this case revealed that

fostering competition at the low end of media markets – the mass market that has
been created through and largely left to piracy.” Joe Karaganis, Media Piracy in
Emerging Economies: Price, Market Structure and Consumer Behavior 5,
available at
http://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf.
Karaganis explains that a critical feature of this competition “is neither strong
enforcement nor the innovative use of digital distribution, but rather the presence
of firms in national markets that actively compete on price and services for local
audiences.” Id. at 4. Karaganis adds that local firms are much more likely than
multinational firms “to aggressively compete for audiences on price and service –
the domestic market is their market.” Id.

24

Viacom employees uploaded clips on to YouTube from their personal accounts in
order to create an artificial “buzz” for Viacom products. Performers such as Justin
Bieber have leveraged their YouTube videos into successful careers with major
record labels. In fact, hundreds of YouTube partners are now making over
$100,000, and numerous artists have used YouTube to launch successful careers.17
Additionally, Internet services enable authors and artists to “disintermediate”
the traditional publishers and record labels and directly reach their fans. The
creators receive compensation from license fees, advertising revenue, or live
performances promoted via these services. By cutting out the publishers and
record labels, the creators are able to keep a larger share of the revenue. Likewise,
thousands of individual programmers develop “apps” that are sold through the
iTunes store or other websites.
Further, the Internet provides a means for the creation and distribution of
vast amounts of content where the creators do not seek financial reward. The free

17

See Claire Cain Miller, YouTube Ads Turn Videos into Revenue, N.Y. TIMES,
Sep. 2, 2010, http://www.nytimes.com/2010/09/03/technology/03youtube.html.
Twenty-two year old Shane Dawson is estimated to make $295,000 a year solely
off of YouTube revenues from his comedy videos. Kevin Voigt, So you wanna be
a YouTube star?, CNN, Sep. 24, 2010,
http://edition.cnn.com/2010/BUSINESS/09/24/youtube.hitmakers.dawson/. The hit
song by the Gregory Brothers, “Bed Intruder Song” went from being a YouTube
sensation to a Billboard 100 charting single. Jenna Wortham, From Viral Video to
Billboard 100, N.Y. TIMES, Sep. 5, 2010,
http://www.nytimes.com/2010/09/06/business/media/06tune.html.
25

online encyclopedia, Wikipedia, is primarily written collaboratively by anonymous
volunteers. It has more than 91,000 active contributors working on more than
17,000,000 articles in over 270 languages. English Wikipedia contains 3,478,986
articles with 22,232,894 pages.18 Flickr hosts 5 billion photographs.19 Over 125
million bloggers comment on politics, food, travel, and a host of other topics,
ranging from the esoteric to the trivial.20 Thirty-five hours of video are uploaded
to YouTube every minute.21 If the four major networks (ABC, NBC, CBS, and
Fox) had aired new content twenty fours a day and seven days a week from the
moment of their founding until now, they would not have broadcast as much
content as YouTube has in the past six months alone.
The entertainment companies have a dismissive attitude towards usergenerated content, suggesting that it is far more frivolous and of lower quality than
the material created by the commercial entertainment companies. Without
question, much user generated content is frivolous and of low quality. But so is
18

Wikipedia: About, http://en.wikipedia.org/wiki/Wikipedia:About. Wikipedia
attracts 78 million visitors a month. Id.
19
Flickr blog, Sept. 19, 2010, http://blog.flickr.net/en/2010/09/19/5000000000/.
30 billion photographs are uploaded to Facebook annually. Internet 2009 in
numbers, Jan. 22, 2010, http://royal.pingdom.com/2010/01/22/internet-2009-innumbers/.
20
Id.
21
Don Reisinger, YouTube: 35 hours of video uploaded every minute, CNET
NEWS, Nov. 11, 2010, http://news.cnet.com/8301-13506_3-2002248117.html?part=r. YouTube serves 1 billion videos a day. Internet 2009 in numbers,
supra.

26

much of the content distributed by entertainment companies. It is hard to argue
that songs with misogynistic lyrics or reality television programming on Viacom’s
MTV Networks have more redeeming social value than the Jib-Jab remixes, the
Obama Girl videos, Randy Pausch’s Last Lecture or the Wikipedia articles we all
consult. One of the rightsholders that has most aggressively attacked alleged
online infringement is Perfect 10, a publisher specializing in images of naked
women who have not been surgically altered.22
This court should not interpret the copyright law in a manner that assists one
set of copyright holders at the expense of another, much larger set of copyright
holders because of a misimpression that the works distributed by the first set of
copyright holders have greater artistic or social merit than the works created by the
second set of copyright holders. Yet that would be the result if this court adopts
the liability regime advocated by Viacom. Many Internet companies would no
longer be able to provide a free and open platform for user generated content
because of the potential cost of liability. Instead, Internet companies would have
to charge for their services or monitor their users’ content for infringing material.
Either approach would frustrate both of the values identified by the Grokster

22

See, e.g., Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007);
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007); Perfect 10,
Inc. v. Visa International Service Ass’n, 494 F.3d 788 (9th Cir. 2007).
27

Court: “supporting creative pursuits through copyright protection” and “promoting
innovation in new communication technologies.” Grokster, 545 U.S. at 928.
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
affirmed.
Respectfully submitted,

Counsel for Amici Curiae
Markham C. Erickson
Holch & Erickson LLP and
Executive Director, NetCoalition
400 N. Capitol Street NW, Suite 585
Washington, DC 20001
[phone]
[e-mail]

Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW, Suite 800
Washington, D.C. 20036
[phone]
[e-mail]

Matthew Schruers
Vice President, Law & Policy
Computer & Communications
Industry Association
900 Seventeenth Street NW, 11th Floor
Washington, D.C. 20006
[phone]
[e-mail]

April 7, 2011

28

CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B) because it contains 6,693 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the types style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word in 14
point Times New Roman.

Counsel for Amici Curiae
Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW, Suite 800
Washington, D.C. 20036
[phone]
[e-mail]

April 7, 2011

29

CERTIFICATE OF SERVICE
I hereby certify, pursuant to FRAP 25(d)(2), that on this 7th day of April,
2011, a true and correct copy of the foregoing Brief of Amici Curiae Computer &
Communications Industry Association and NetCoalition in Support of Appellees
and Urging Affirmance was timely filed in accordance with FRAP 25(a)(2)(B) and
served on all counsel of record in this appeal via CM/ECF pursuant to Second
Circuit Rule 25.1(h).

Counsel for Amici Curiae
Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW, Suite 800
Washington, D.C. 20036
[phone]
[e-mail]

April 7, 2011