The Football Association Premi v. Youtube, Inc.

Filing 457

LETTER, 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 01/12/2012 by CM/ECF.[495429] [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

January 12, 2012
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:
Wolk v. Kodak Imaging Network, Inc., 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012)
(“Photobucket”), cited by YouTube, highlights why no safe harbor is available here.
There was no evidence that Photobucket knew or was aware of infringing activity, apart
from 15 DMCA takedown notices, 11 of which were defective. By contrast, the record here is
rife with specific knowledge concerning the presence of plaintiffs’ works on YouTube, including
internal emails discussing quantification of infringements, specific plaintiffs’ works, discussions
about the need or appropriateness for licenses, valuation of infringing premium content (again,
with references to specific plaintiffs’ works), and whether YouTube’s “tracking systems” should
be set to ignore what was plainly unlicensed and infringing content. Class Br. 9-23. YouTube’s
knowledge that it was infringing specific plaintiff works, afforded by both the above sources and
repeated takedown notices for plaintiffs’ songs and specific sports programming known to
require licenses that YouTube lacked (e.g., French Open games, FA Premier League matches),
differs from the Photobucket record like day from night.
Although the Photobucket pro se plaintiff conceded early in the litigation that automated
filtering would be impractical to protect her works from infringement, YouTube selectively
deployed automated filtering to protect the content of its licensors or to target advertising, while
denying such protection to plaintiffs. Class Br. 22-24; Reply 10-11. Content known to be
plaintiffs’ was easily recognizable (and in fact recognized) by YouTube upon upload. YouTube
cannot actively benefit from such systems for the purpose of identifying and monetizing content,
including for pinpoint advertising, and then claim that it lacks knowledge or facts from which
continuing infringement is evident.
Also unlike Photobucket, the record here contains extensive evidence of pervasive control
over the infringing activities on the YouTube site and pointed admissions by YouTube and

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
January 12, 2012
Page 2
Google executives (and their advisors) concerning the value of those infringements to the growth
and success of YouTube, and direct financial benefit. Class Br. 8-13.
For all of these reasons, Photobucket reinforces why, on the extensive factual record before
the Court, the safe harbor is out of reach, and certainly not established on summary judgment.
Very truly yours,

Charles S. Sims