The Football Association Premi v. Youtube, Inc.

Filing 453

FRAP 28(j) LETTER, dated 12/27/2011, on behalf of -- Alley Music Corporation, Edward B. Marks Music Company, Freddy Bienstock Music Company, National Music Publishers' Association, Sin-Drome Records, Ltd., The Music Force LLC, The Music Force Media Group LLC, The Rodgers & Hammerstein Organization and Appellant Bourne Co., Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., Federation Francaise De Tennis, Murbo Music Publishing, Inc., Stage Three Music (US), Inc., The Football Association Premier League Limited and X-Ray Dog Music, Inc., RECEIVED. Service date 12/27/2011 by CM/ECF.[482666] [10-3342]

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

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

December 27, 2011
Via ECF
Catherine O’Hagan Wolfe, Clerk of Court
United States Court of Appeals for the Second Circuit
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007
Re:

The Football Ass’n Premier League et al. v. YouTube, Inc. et al., No. 10-3342

Dear Ms. Wolfe:
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 09-55902 (9th Cir. Dec. 20, 2011)
(“Veoh”) in fact confirms the error in granting YouTube a safe harbor on summary judgment on
the very different record here.
The class plaintiffs relied on not general awareness of the possibility of infringement but an
extensive showing of highly specific knowledge, disregard of bright red flags, and willful
blindness, as well as extraordinary internal emails referring to plaintiffs by name (and the wealth
to be obtained from using their works); studies of the popularity of plaintiffs’ works on YouTube;
and YouTube’s tracking of works known to be unlicensed, enabling it to pinpoint advertising to
plaintiffs’ works despite extensive knowledge of infringement, including from thousands of
takedown notices sent by plaintiffs. Compare Class Br. 9-23 with Veoh slip op. 21067, 21081,
21084-88 (UMG had not sent any takedown notices, and there was no evidence of willful
blindness).
Veoh did not confront anything like YouTube’s inadequate removal of plaintiffs’
copyrighted content known or believed infringing. Compare Veoh slip op. 21072, n.5 with Class
Reply 8-15.
The record here also shows extensive third-party communications affording the knowledge
held lacking in Veoh. Compare Veoh slip op. 21087-88 with Class Br. 14, 20-24 and Class Reply
9-11, 14-15. The Ninth Circuit did not suggest that defendants can disregard knowledge and
awareness of infringing activities until they receive a takedown notice or decline to use existing
tools to avoid repeat infringements of materials repeatedly subject to takedown notices – or that
they are relieved from doing so by 17 U.S.C. §512(m).

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 of Court
December 27, 2011
Page 2
The Ninth Circuit’s holding concerning benefit and control contradicts this Court’s cases
and the unambiguous statutory text and legislative history, and in any event the record here
reflects an extensive ability to control at upload and thereafter, through the use of tools already
used (although only to gain more eyeballs, not to assist in a joint effort to reduce infringement).
See Class Br. 20-24, Reply 24-31.
Finally, YouTube violates the “storage” limitation of §512(c) because its syndication
activities do not colorably fit within the safe harbor. Post-Hearing Br. 7-10.

Very truly yours,

Charles S. Sims