UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Filing 149

UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Doc. 149

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

Rebecca Calkins (SBN: 195593) Erin Ranahan (SBN: 235286) WINSTON & STRAWN LLP 333 South Grand Avenue, 38th Floor Los Angeles, CA 90071-1543 Telephone: [phone] Facsimile: 213-615-1750 Email: [e-mail] Email: [e-mail] Jennifer A. Golinveaux (SBN 203056) WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111 [phone] (Telephone) [phone] (Facsimile) Email: [e-mail] Michael S. Elkin (pro hac vice) Thomas P. Lane (pro hac vice) WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 [phone] (Telephone) [phone] (Facsimile) Email: [e-mail] Email: [e-mail] Attorneys for Defendant VEOH NETWORKS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UMG RECORDINGS, INC., et al. Plaintiffs, vs. VEOH NETWORKS, INC., et al. Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

Case No. CV 07 5744 ­ AHM (AJWx) STATEMENT OF GENUINE ISSUES IN SUPPORT OF VEOH NETWORKS, INC.'S OPPOSITION TO UMG'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: VEOH'S SECOND AFFIRMATIVE DEFENSE (17 U.S.C. § 512) Local Rule 56-2 Date: October 20, 2008 Time: 10:00 a.m. Ctrm: 14

VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

Though Veoh Networks, Inc. ("Veoh") does not consider it necessary for the facts below to be litigated before the Court is able to rule on Plaintiffs' motion, Veoh files this separate Statement of Genuine Issues in response to Plaintiffs' Statement of Uncontroverted Facts and Conclusions of Law. "UNDISPUTED" FACT VEOH'S RESPONSE Background Facts on Veoh and Its Services 1. Veoh operates two interrelated services, UNDISPUTED a web site (www.veoh.com) and a client software application (VeohTV). Through both services, viewers can freely access video content. 2. Veoh's video content can be viewed UNDISPUTED through Veoh's website or through its client software, and viewers can download full copies of available videos. 3. Veoh allows its viewers to use its DISPUTED to the extent that this service free of charge. Veoh's revenues and assumes that Veoh has earned any profits come from advertising displayed along "profits." Veoh has yet to turn a with or next to videos. profit, and Plaintiffs present no evidence about any purported profits earned by Veoh. Facts Relating to Uploading Videos to Veoh 4. Some of Veoh's content is uploaded by UNDISPUTED its users, either through Veoh's website or through VeohTV. 5. When a user uploads a video through UNDISPUTED VeohTV, the user is asked to enter some information about the video - a title, a description, a category (such as music or travel) and "tags." This information is collectively known as "metadata." 6. Veoh indexes each video's metadata so UNDISPUTED it can be searched for by others. 7. Video files come in a variety of formats. UNDISPUTED Veoh attempts to accommodate all the formats it can. 8. When uploading a video through UNDISPUTED 1
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3
1867036

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

-2 -

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE Veoh's website, a user must "state that [the user] ha[s] read and agree[s] to Veoh Publisher Terms and Conditions." 9. Veoh's Publisher Terms and Conditions UNDISPUTED provide that users "grant Veoh a limited, nonexclusive, worldwide, revocable, sublicensable license to perform such acts in connection with [their] Video Material and Publisher Material as are necessary to provide the Veoh Service. Specifically, the foregoing license includes, without limitation, and to the extent necessary to provide the Veoh Service, permission for Veoh, to: (i) publicly display, publicly perform, transmit, distribute, copy, store, reproduce and/or provide [their] Video Material and Publisher Material on or through the Veoh Service, either in its original form, copy or in the form of an encoded work; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on [their] Video Material and Publisher Material; (iii) distribute, transmit, and/or display [their] Video Material and Publisher Material and encoded works via such technologies as are supported by Veoh from time to time; and (iv) display advertisements in connection with any display of [their] Video Material and Publisher Material and encoded works. For the avoidance of doubt, Veoh expressly acknowledges and agrees that the Veoh Service does not include taking title to any Video Material and Publisher Material supplied by [its users]." 10. When uploading a video through UNDISPUTED VeohTV, a user must check a box stating that he or she "ha[s] read, understand[ s], and agree[s] to the Veoh Terms of Use." 11. Veoh's Terms of Use provide that when UNDISPUTED a user uploads a video, Veoh receives a "worldwide, non- exclusive, royalty-free, 2
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE perpetual, irrevocable, sublicensable and transferable license[,]" which states that Veoh is allowed "to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform and transmit" videos uploaded by its users. 12. Veoh's Terms of Use provide that "If UNDISPUTED you are a publisher and wish to upload video content to the Veoh Service, then, in addition to this TOU [Terms of Use], the Publisher Terms and Conditions or the Veoh Pro Publisher Terms & Conditions..., as applicable, will apply to you and are incorporated by reference." 13. Veoh's search engines will "crawl" UNDISPUTED other websites, such as YouTube.com, to "surface" videos from other sites. Uploading Videos Through VeohTV 14. For files uploaded through VeohTV, the UNDISPUTED client software provided by Veoh breaks the video file into 256- kilobyte pieces or "chunks," which are then sent to Veoh, and saved on Veoh computers known as "content servers." 15. Once Veoh receives the video file, it UNDISPUTED passes the video through its "encoding pipeline," converting the video from its original format into a format known as Flash 7. 16. Videos which have been transcoded by UNDISPUTED Veoh into Flash 7 format are given a uniform frame rate and size, predetermined by Veoh and not adjustable by the user. 17. Veoh automatically generates a UNDISPUTED thumbnail image which appears by default on Veoh's website. However, a user can upload a replacement thumbnail image. 18. If the Veoh user who uploaded the UNDISPUTED video is a "Pro" user, Veoh will also transcode 3
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE the video into two additional formats, known as Flash 8 (a newer version of the Flash player) and MPEG-4 (another video format that can, for example, play on iPod devices). 19. For videos uploaded through VeohTV UNDISPUTED by Pro users, Veoh creates and retains four copies: the 256-kilobye "chunks" copy, a Flash 7 copy, a Flash 8 copy, and an MPEG-4 copy. 20. Veoh Pro membership is free. UNDISPUTED Uploading a Video Through Veoh's Website 21. When uploading a video through UNDISPUTED Veoh's website, the user is asked to provide metadata about the video (i.e., a title, description, and, optionally, any category information and tags), assents to Veoh's Publisher Terms and Conditions, and then selects a video file for upload. 22. A copy of the original video file is sent UNDISPUTED to Veoh's "web upload" servers. 23. Veoh takes the original video file from UNDISPUTED its "web upload" servers and passes it through its encoding pipeline to create a 256-kilobyte "chunks" copy and then a separate Flash 7 copy of the video. 24. Veoh reformats videos into 256- DISPUTED with respect to kilobyte "chunks" copies so that Veoh can Plaintiffs' use of the phrase more easily distribute permanent copies of the "permanent." The copies of videos to viewers. videos downloaded into the Veoh player and VeohTV are not properly described as "permanent" because Veoh retains the ability to terminate the user's access to copies of such videos through the Veoh player or VeohTV if, for instance, Veoh receives a DMCA notice so long as the file resides within the user's Veoh directory. Papa Decl. at ¶ 18. 4
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE 25. When a user uploads a video through UNDISPUTED Veoh's website, Veoh reformats the video into a predetermined dimension (320 x 240 pixels), video format (Flash 7), and frame rate (512 kilobits per second). 26. There is an additional set of preselected UNDISPUTED dimensions and formats for videos uploaded by Pro users. 27. The user who uploads a video cannot UNDISPUTED determine the video's dimension, video format, and frame rate. Searching for and Viewing a Video Through Veoh's Website 28. Veoh uses a method of "streaming" UNDISPUTED known as "progressive downloading," meaning that when a user "streams" a video, Veoh (or its Content Deliver Network ("CDN") partner) actually provides a full copy of the video in the viewer's temporary computer memory, or browser cache. 29. So long as the viewer does not stop the UNDISPUTED download, every time a viewer streams a video on Veoh, the viewer will necessarily have a complete copy of the video file. 30. The viewer can direct her internet UNDISPUTED browser to the website www.veoh.com, and then type "50 Cent Candy Shop" into the Veoh search box. 31. In response to a search query, Veoh UNDISPUTED searches the title, description, and tag metadata associated with videos uploaded to Veoh, looking for videos responsive to the request. 32. A search for "50 Cent Candy Shop" UNDISPUTED returned a list of videos, including a video entitled "50 Cent Featuring Olivia - Candy Shop." Searching for and Viewing Videos Through VeohTV 33. When a viewer searches for videos UNDISPUTED through VeohTV, Veoh returns a list of the 5
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE responsive videos available on Veoh's website, as well as videos available on other websites, including Yahoo! Video. 34. The videos located in the search are UNDISPUTED sorted by tabs identifying the website from where the video originated (e.g., one tab for Veoh, another for Yahoo, etc.). Downloading a Video Through Veoh 35. Veoh viewers can also download DISPUTED with respect to permanent copies of most videos available Plaintiffs' use of the phrase through Veoh. To download a video, the user "permanent." The copies of first downloads the free VeohTV software. videos downloaded into the Veoh player and VeohTV are not properly described as "permanent" because Veoh retains the ability to terminate the user's access to copies of such videos through the Veoh player or VeohTV if, for instance, Veoh receives a DMCA notice so long as the file resides within the user's Veoh directory. Papa Decl. at ¶ 18. 36. Registration with Veoh is free. The user UNDISPUTED need only provide an email address. 37. A viewer downloads a video by clicking UNDISPUTED the "Download Video" Button. 38. When a viewer downloads a video, UNDISPUTED Veoh transfers the 256-kilobyte "chunks" copy that it previously made of the original video file. The VeohTV software assembles these chunks together into a complete copy of the original file on the viewer's computer. 39. Veoh sometimes uses its "peer-assisted UNDISPUTED delivery network" to effectuate its viewers' downloading of files. When a download is "peer-assisted," some of the file a viewer seeks to download is transferred from the computers of other Veoh viewers who have already downloaded the file being sought. 6
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3
1867036 -

Winston & Strawn LLP

5

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE 40. Even when the "peer-assisted" delivery UNDISPUTED mechanism is employed, Veoh itself (or its CDN) delivers roughly between 75% and 100% of the download. 41. When a peer-assisted download UNDISPUTED initiates, Veoh does not inform its users that they are participating in the peer-assisted distribution of the video. 42. When a viewer wishes to download a UNDISPUTED video through VeohTV, the viewer clicks the download icon. 43. Veoh delivers videos to its users the UNDISPUTED same way for downloads initiated on the web site as for downloads initiated through the Veoh client software. Instances of Specific UMG Works Available Through Veoh 44. A video entitled "50 Cent - Candy DISPUTED to the extent that Shop" was available for streaming and Plaintiffs imply that the copy of purported representative downloading on Veoh and through VeohTV. this The video was referenced by Veoh ID number example of an infringing video is v880111y58q2WGy. The soundtrack to the still available on Veoh. After video contains the sound recording for the Plaintiffs filed this motion, Veoh checked the status of all five of work "Candy Shop" by the artist 50 Cent. these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Declaration of Stacie Simons ("Simons Decl."), at ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id. 7
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

"UNDISPUTED" FACT 45. The video entitled "50 Cent - Candy Shop," referenced by Veoh ID number v880111y58q2WGy, on Veoh.com, had, at one point, been viewed 475 times and downloaded 61 times, according to the statistics reported by Veoh.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
LA:224064.3
1867036

46. A video entitled "Fall out Boy - dance Dance" was available for streaming and downloading on Veoh and through VeohTV, referenced by Veoh ID number v898060DsyB38pB. The soundtrack to this video contains the sound recording for the work "Dance, Dance" by the artist Fall Out Boy.

VEOH'S RESPONSE DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh

Winston & Strawn LLP

VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ

6

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

"UNDISPUTED" FACT

47. The video entitled "Fall out Boy - dance Dance" referenced by Veoh ID number v898060DsyB38pB, on Veoh.com, had, at one time, been viewed 353 times and had been downloaded 73 times, according to the statistics reported by Veoh.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
LA:224064.3

48. A video entitled "JUST A GIRL NO DOUBT" was available for streaming and downloading on Veoh.com and through VeohTV, referenced by ID number v891742AsTQR5Rq. The soundtrack to this video contains the sound recording for the work "Just a Girl" by the artist No Doubt.

VEOH'S RESPONSE received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing

Winston & Strawn LLP

VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

"UNDISPUTED" FACT

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

49. The video entitled "JUST A GIRL NO DOUBT" referenced by Veoh ID number v891742AsTQR5Rq, on Veoh.com had, at one time, been viewed 157 times and downloaded 22 times, according to the statistics reported by Veoh.

50. A video entitled "Bon jovi- its my life" was available for streaming and downloading on Veoh.com and through VeohTV, referenced by ID number v8379297Fyddmxj. The soundtrack to this video contains the 10
LA:224064.3

VEOH'S RESPONSE of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After

VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"UNDISPUTED" FACT VEOH'S RESPONSE musical composition for the work "It's My Plaintiffs filed this motion, Veoh Life" performed by the artist Bon Jovi. checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id 51. The video entitled "Bon Jovi- its my DISPUTED to the extent that life" referenced by Veoh ID number Plaintiffs imply that the copy of purported representative v8379297Fyddmxj, on Veoh.com had, at one this time, been viewed 664 times and downloaded example of an infringing video is 71 times, according to the statistics reported still available on Veoh. After Plaintiffs filed this motion, Veoh by Veoh. checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., at ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by 11
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

"UNDISPUTED" FACT 52. A video entitled "Mary J. Blige - Take me as i am" was available for streaming and downloading on Veoh.com and through VeohTV, referenced by ID number v934573ncaPJKP6. The soundtrack to this video contains the musical composition for the work "It's My Life" performed by the artist Bon Jovi.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
LA:224064.3

53. The video entitled "Mary J. Blige Take me as I am" referenced by Veoh ID number v934573ncaPJKP6, on Veoh.com had, at one time, been viewed 116 times and downloaded 20 times, according to the statistics reported by Veoh.

VEOH'S RESPONSE Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id DISPUTED to the extent that Plaintiffs imply that the copy of this purported representative example of an infringing video is still available on Veoh. After Plaintiffs filed this motion, Veoh checked the status of all five of these videos. Despite never having received notice from Plaintiffs that these pr any videos were infringing (before the filing of this motion), Veoh had independently terminated access to each of these videos back in 2007. Simons Decl., ¶ 6. Two of the videos were terminated in

Winston & Strawn LLP

VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

VEOH'S RESPONSE response to DMCA notices Veoh received from a trade organization called the Recording Industry Association of America. Id. The other three videos were also independently terminated by Veoh. Id. 54. Veoh has not obtained authorization UNDISPUTED from UMG for its exploitation of these works. Other Facts 55. The American Heritage Dictionary UNDISPUTED (Houghton Mifflin 1985) defines "storage" as "[t]tle act of storing goods." "Store" means "1. To reserve or put away for future use. 2. To fill, supply, or stock. 3. To deposit or receive in a storehouse or warehouse." 56. The American Heritage Dictionary UNDISPUTED (Houghton Mifflin 1985) defines "reside" as, "1. To live in a place for an extended period of time. 2. To be inherently present. 3. To be vested, as a power or right." I. VEOH'S CONTENTIONS REGARDING PLAINTIFFS' "CONCLUSIONS OF LAW" As discussed in detail in Veoh's Opposition, Veoh disputes Plaintiffs' "conclusions of law" set forth in paragraphs 59-60 and 65-68, which find no support in the plain language of Section 512(c), the legislative history or any cases that have ever interpreted Section 512(c) of the DMCA. In fact, under the same circumstances, contrary legal conclusions have already been reached, as Veoh was found eligible for and entitled to Section 512(c) safe harbor in Io Group, Inc. v. Veoh Networks, Inc., 2008 U.S. Dist. LEXIS, 65915, No. 06-3926, slip op. at 20 (N.D. Cal. Aug. 27, 2008), ("Io Group, Inc.").

"UNDISPUTED" FACT

13
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

Veoh has also not been provided sufficient discovery1 regarding Plaintiffs' purported rights to the works listed in Paragraphs 44-53, and thus the Conclusions of Law set forth in paragraphs 57 and 58 about UMG's purported "exclusive rights to reproduce, distribute, and perform its copyrighted works" under 17 U.S.C. § 106 require a factually premature leap. With respect to Paragraph 59, Veoh disputes that the upload or download of files by its users is a direct (or indirect) infringement by Veoh. As Veoh has not engaged in any volitional conduct with respect to the alleged infringements, Veoh cannot be liable for direct infringement as a result of the actions of Veoh's users. See CoStar Group, Inc. v. Loopnet, Inc., 373 F.3d 554, 555-557 (4th Cir. 2004); The Cartoon Network LP, LLP v. CSC Holdings, Inc. 536 F3d 121 (2d Cir., Aug. 4, 2008); Religious Technology Center v. Netcom On-line Communications Service, Inc., 907 F.Supp. 1361 (ND Cal. 1995); Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 2006). In addition, Plaintiffs overstate the holding in A & M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ("Napster") as holding that "the download and upload of copyrighted music constitutes direct infringement of copyright." While that court noted that Napster users who "upload file names to the search index for others to copy violate plaintiffs' distribution rights" . . . and "Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights," the court explicitly stated that "the district court's conclusion that plaintiffs have presented a prima facie case of direct infringement by Napster users is not presently appealed by Napster." Id. at 1013-1014. Napster instead sought to resolve whether the fair use affirmative defense required overturning the preliminary injunction against Napster. Id. The court also stated that "absent any specific information which identifies Plaintiffs have failed to even provide a list of allegedly infringing videos. They have also taken the position that their discovery with respect to copyright ownership should be limited to copyright registrations--despite numerous reasons for requiring more extensive discovery. Such is currently an ongoing and unresolved discovery dispute between the parties. See Veoh's Summary of Discovery Orders in MySpace/Grouper Actions Relevant to Current Discovery Disputes, Docket No. 110, pp. 1-8. 14
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3 1

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material." Id. at 1021. Moreover, in a very recent decision, Capitol Records Inc., et al. v. Thomas, Civil File No. 06-1497 (MJD/RLE) (D.C. Minn. 2008), the court vacated a judgment and granted a new trial for the defendant, who had been found liable for infringement for making available recordings owned by the plaintiffs' (including Plaintiff UMG Recordings, Inc.), on a peer-to-peer file sharing network. Declaration of Jennifer Golinveaux, ¶ 7 and Exh. F. After "reviewing the Copyright Act itself, the legislative history, binding Supreme Court and Eighth Circuit precedent, and an extensive body of case law examining the Copyright Act," the court held that merely making a work available to the public does not constitute a distribution. Id. at pp. 13-40. In Paragraph 60, Plaintiffs cite footnote 7 in Bonneville Intern. Corp. v. Peters, 347 F.3d 485, 489 n.7 (3d Cir. 2003) ("Bonneville") as standing for the proposition that "streaming sound recordings over the internet requires a license." But in Bonneville, the requirements at issue involved internet streaming of AM/FM broadcast signals, and the licensing requirements set forth by Plaintiffs involve "interactive, ondemand" services. Id. at 489, n. 7, 499-500.2 The entities at issue in Bonneville, internet radio webcasters, intentionally select and play certain copyrighted songs. Veoh's users do grant Veoh a license to stream videos uploaded by users, and Veoh removes infringing works when it has notice of such infringement Paragraphs 65 and 66 set forth legal conclusions far beyond the issue of Veoh's eligibility for safe harbor protection, and instead ask this Court to reach premature legal conclusions that Veoh "engages in infringing activities." Veoh specifically disputes that any of the actions described in paragraphs 65 and 66 constitute either
2

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

The court in Bonneville also stated that: "[t]he subject matter of the present case, Internet streaming, should not be confused with the use of the Internet to exchange digital copies of entire songs through centralized or distributed peer-to-peer file exchange mechanisms like Napster and KaZaA . . ." Id. at 489, n. 8. 15
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ

LA:224064.3

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

direct or indirect infringement by Veoh even apart from Veoh's eligibility for Section 512(c) safe harbor. In addition, none of these actions make Veoh ineligible for Section 512(c) safe harbor as set forth in Section III of Veoh's Opposition to Plaintiffs' Motion for Partial Summary Judgment. Plaintiffs also add to this paragraph subsections (vi) and (vii) that assume that Veoh "facilitates and encourages" infringing activities, despite the fact that none of the supposed facts to support these legal conclusions were listed in Plaintiffs' Statement of Uncontroverted Facts, and are instead wholly contradicted by the record and Veoh's strong policies against infringement. (Opp., Passim). As Veoh has not engaged in any volitional conduct with respect to the alleged infringements, Veoh cannot be liable for direct infringement as a result of the actions of Veoh's users. See CoStar Group, Inc. v. Loopnet, Inc., 373 F.3d 554, 555-557 (4th Cir. 2004); The Cartoon Network LP, LLP v. CSC Holdings, Inc. 536 F3d 121 (2d Cir., Aug. 4, 2008); Religious Technology Center v. Netcom On-line Communications Service, Inc., 907 F.Supp. 1361 (ND Cal. 1995); Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 2006). Veoh has also already been found to fall squarely within the protections of the Section 512(c) safe harbor. Io Group, Inc., supra at 20. In reaching its decision, the court in Io Group Inc. found Veoh's automated technological features that permit access to videos did not remove Veoh from the safe harbor, and found Veoh to be a model citizen under the DMCA. Id. at 31 ("[f]ar from encouraging infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website"); see also, The Cartoon Network LP, LLP v. CSC Holdings, Inc. --F3d--, Nos. 07-1480cv(L), 07-1511-cv(CON) 2008 WL 2952614 at *9 (2d Cir., Aug. 4, 2008) (the court found "significant," in reversing a finding of infringement against the defendant, that the defendant was not "volitionally" involved in making infringing copies, as any such copies would be made by the defendant's users through automated functions.) In Paragraphs 67 and 68, Plaintiffs set forth another flawed legal conclusion 16
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

1 2 3 4 5 6 7 8 9 10
101 California Street San Francisco, CA 94111-5894

already rejected in Io Group, Inc.--that Veoh's Section 512(c) protections should not extend to the automated functions that facilitate user access to content uploaded by Veoh's users. (See Opp. pp. 6-8). The only cases cited by Plaintiffs (Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008) and Atlantic Recording Corp. v. XM Satellite Radio, Inc., 2007 WL 136186 (S.D.N.Y. Jan. 19, 2007) (See Opp. pp. 24-25)) do not involve the DMCA and are irrelevant to Veoh's eligibility for Section 512(c) safe harbor.

DATED: September 29, 2008

WINSTON & STRAWN LLP By: /s/ Erin R. Ranahan Rebecca Lawlor Calkins Erin Ranahan 333 S. Grand Avenue Los Angeles, California 900711543 [phone] (Telephone) [phone] (Facsimile) Jennifer A. Golinveaux 101 California Street San Francisco, California 94111-5894 [phone] (Telephone) [phone] (Facsimile) Michael S. Elkin Thomas P. Lane 200 Park Avenue New York, New York 101664193 [phone] (Telephone) [phone] (Facsimile) Attorneys for Defendant

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Winston & Strawn LLP

17
VEOH'S STATEMENT OF GENUINE ISSUES IN SUPPORT OF OPP TO MSJ
LA:224064.3