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

Filing 164

STATEMENT of REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION for Partial Summary Judgment as to Veoh's Second Affirmative Defense 117 filed by Plaintiffs Songs of Universal, Inc., Universal-Polygram International Publishing, Inc., Rondor Music International, Inc., Universal Music - MGB NA LLC, Universal Music - Z Tunes LLC, Universal Music - MBG Music Publishing Ltd., Universal Music Corp.. (Ledahl, Brian)

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UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al Doc. 164 1 Steven A. Marenberg (101033) (smarenberg@irell.com) Elliot Brown (150802) (ebrown@irell.com) 2 Brian Ledahl (186579) (bledahl@irell.com) 3 Benjamin Glatstein (242034) (bglatstein@irell.com) IRELL & MANELLA LLP 4 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 5 Telephone: (310) 277-1010 6 Facsimile: (310) 203-7199 7 Attorneys for Plaintiffs 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-07-05744 AHM (AJWx) UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Filed Concurrently Herewith: 1. UMG's Reply In Support Of Motion For Partial Summary Judgment; 2. Declaration of Benjamin Glatstein Hon. A. Howard Matz Date: October 20, 2008 Time: 10:00 a.m. Courtroom: 14 13 UMG RECORDINGS, INC., et al., Plaintiffs, v. VEOH NETWORKS, INC., et al., Defendants. Dockets.Justia.com 1 Plaintiffs UMG Recordings, Inc., et al. (collectively, "UMG") respectfully 2 submit the following reply to defendant Veoh's Statement of Genuine Issues In 3 Support Of Veoh Networks, Inc.'s Opposition to UMG's Motion For Partial 4 Summary Judgment Re: Veoh's Second Affirmative Defense (17 U.S.C. 512). 5 I. 6 7 Uncontroverted Facts 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Veoh's Response UMG's Reply Background Facts on Veoh and Its Service 1. Veoh operates two UNDISPUTED. The fact is established. interrelated services, 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 UNDISPUTED. The fact is established. content can be viewed through Veoh's website or through its client software, and viewers can download full copies of available videos. 3. Veoh allows its DISPUTED to the extent The fact is established. that this assumes that Veoh's response does not viewers to use its service free of charge. Veoh's Veoh has earned any raise a question of fact revenues and profits come "profits." Veoh has yet to because Veoh does not from advertising displayed turn a profit, and Plaintiffs dispute that its revenues along with or next to present no evidence about and any future profits videos. any purported profits come from advertising earned by Veoh. displayed along with or next to videos. Facts Relating to Uploading Videos to Veoh 4. Some of Veoh's UNDISPUTED. The fact is established. content is uploaded by its users, either through Veoh's website or through VeohTV. 5. When a user UNDISPUTED. The fact is established. uploads a video through VeohTV, the user is asked to enter some information -1UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT STATEMENT OF UNCONTROVERTED FACTS 1941313 1 about the video--a title, a 2 description, a category (such as music or travel) 3 and "tags." This information is collectively 4 known as "metadata." 6. Veoh indexes each 5 video's metadata so it can 6 be searched for by others. 7. Video files come in 7 a variety of formats. Veoh attempts to accommodate 8 all the formats it can. When uploading a 9 8. video through Veoh's 10 website, a user must "state that [the user] ha[s] read 11 and agree[s] to Veoh Publisher Terms and 12 Conditions." Veoh's Publisher 13 9. Terms and Conditions 14 provide that users "grant Veoh a limited, non15 exclusive, worldwide, 16 revocable, sublicensable license to perform such 17 acts in connection with [their] Video Material and 18 Publisher Material as are 19 necessary to provide the Veoh Service. 20 Specifically, the foregoing license includes, without 21 limitation, and to the extent necessary to 22 provide the Veoh Service, 23 permission for Veoh, to: (i) publicly display, 24 publicly perform, transmit, distribute, copy, store, 25 reproduce and/or provide 26 [their] Video Material and Publisher Material on or 27 through the Veoh Service, either in its original form, 28 copy or in the form of an UNDISPUTED. UNDISPUTED. The fact is established. The fact is established. UNDISPUTED. The fact is established. UNDISPUTED. The fact is established. 1941313 -2- UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 encoded work; (ii) secure, 2 encode, reproduce, host, cache, route, reformat, 3 analyze and create algorithms based on [their] 4 Video Material and Publisher Material; (iii) 5 distribute, transmit, and/or 6 display [their] Video Material and Publisher 7 Material and encoded works via such 8 technologies as are 9 supported by Veoh from time to time; and (iv) 10 display advertisements in connection with any 11 display of [their] Video Material and Publisher 12 Material and encoded 13 works. For the avoidance of doubt, Veoh expressly 14 acknowledges and agrees that the Veoh Service does 15 not include taking title to 16 any Video Material and Publisher Material 17 supplied by [its users]." 10. When uploading a UNDISPUTED. 18 video through VeohTV, a user must check a box 19 stating that he or she 20 "ha[s] read, understand[s], and agree[s] to the Veoh 21 Terms of Use." 11. Veoh's Terms of UNDISPUTED. 22 Use provide that when a 23 user uploads a video, Veoh receives a "worldwide, 24 non-exclusive, royaltyfree, perpetual, 25 irrevocable, sublicensable and transferable license[,]" 26 which states that Veoh is 27 allowed "to use, reproduce, modify, 28 distribute, prepare -3- The fact is established. The fact is established. UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 derivative works of, 2 display, publish, perform and transmit" videos 3 uploaded by its users. 12. Veoh's Terms of UNDISPUTED. The fact is established. 4 Use provide that "If you are a publisher and wish to 5 upload video content to the 6 Veoh Service, then, in addition to this TOU 7 [Terms of Use], the Publisher Terms and 8 Conditions or the Veoh 9 Pro Publisher Terms & Conditions ... , as 10 applicable, will apply to you and are incorporated 11 by reference." 13. Veoh's search UNDISPUTED. The fact is established. 12 engines will "crawl" other 13 websites, such as YouTube.com, to 14 "surface" videos from other sites. 15 Uploading Videos Through VeohTV UNDISPUTED. The fact is established. 16 14. For files uploaded through VeohTV, the 17 client software provided by Veoh breaks the video 18 file into 256-kilobyte 19 pieces or "chunks," which are then sent to Veoh, and 20 saved on Veoh computers known as "content 21 servers." 15. Once Veoh receives UNDISPUTED. The fact is established. 22 the video file, it passes the 23 video through its "encoding pipeline," 24 converting the video from its original format into a 25 format known as Flash 7. The fact is established. 26 16. Videos which have UNDISPUTED. been transcoded by Veoh 27 into Flash 7 format are given a uniform frame rate 28 and size, predetermined by -4UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 Veoh and not adjustable 2 by the user. 17. Veoh automatically UNDISPUTED. The fact is established. generates a thumbnail 3 image which appears by 4 default on Veoh's website. However, a user can 5 upload a replacement 6 thumbnail image. 18. If the Veoh user UNDISPUTED. The fact is established. 7 who uploaded the video is a "Pro" user, Veoh will 8 also transcode the video 9 into two additional formats, known as Flash 8 10 (a newer version of the Flash player) and MPEG-4 11 (another video format that can, for example, play on 12 iPod devices). The fact is established. 13 19. For videos uploaded UNDISPUTED. through VeohTV by Pro 14 users, Veoh creates and retains four copies: the 15 256-kilobye "chunks" 16 copy, a Flash 7 copy, a Flash 8 copy, and an 17 MPEG-4 copy. 20. Veoh Pro UNDISPUTED. The fact is established. 18 membership is free. Uploading a Video Through Veoh's Website 19 21. When uploading a UNDISPUTED. The fact is established. video through Veoh's 20 website, the user is asked 21 to provide metadata about the video (i.e., a title, 22 description, and, 23 optionally, any category information and tags), 24 assents to Veoh's Publisher Terms and 25 Conditions, and then 26 selects a video file for upload. UNDISPUTED. The fact is established. 27 22. A copy of the original video file is sent 28 to Veoh's "web upload" -5UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 servers. 2 23. Veoh takes the original video file from its 3 "web upload" servers and passes it through its 4 encoding pipeline to create a 256-kilobyte "chunks" 5 copy and then a separate 6 Flash 7 copy of the video. 24. Veoh reformats 7 videos into 256-kilobyte "chunks" copies so that 8 Veoh can more easily 9 distribute permanent copies of the videos to 10 viewers. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNDISPUTED. The fact is established. DISPUTED with respect to Plaintiffs' use of the phrase "permanent." The copies of 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. The fact is established. Veoh does not dispute that the downloading it facilitates results in a copy sufficiently fixed to establish a prima facie showing of infringement under the Copyright Act. See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 716 (9th Cir. 2007) ("A photographic image is a work that is "`fixed' in a tangible medium of expression," for purposes of the Copyright Act, when embodied (i.e., stored) in a computer's server (or hard disk, or other storage device). The image stored in the computer is the `copy' of the work for purposes of copyright law.") (citation omitted); MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-18, 519 (9th Cir. 1993) ("[S]ince we find that the copy created in the RAM can be `perceived, reproduced, or otherwise communicated,' we hold that the loading of software into the RAM creates a copy under the Copyright Act." (quoting 17 U.S.C. 101)). 1941313 -6- UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 2 3 4 25. When a user UNDISPUTED. 5 uploads a video through 6 Veoh's website, Veoh reformats the video into a 7 predetermined dimension (320 x 240 pixels), video 8 format (Flash 7), and 9 frame rate (512 kilobits per second). UNDISPUTED. The fact is established. 10 26. There is an additional set of 11 preselected dimensions and formats for videos 12 uploaded by Pro users. UNDISPUTED. The fact is established. 13 27. The user who uploads a video cannot 14 determine the video's dimension, video format, 15 and frame rate. Searching for and Viewing a Video Through Veoh's Website 16 28. Veoh uses a method UNDISPUTED. The fact is established. 17 of "streaming" known as "progressive 18 downloading," meaning 19 that when a user "streams" a video, Veoh (or its 20 Content Deliver Network ("CDN") partner) actually 21 provides a full copy of the video in the viewer's 22 temporary computer 23 memory, or browser cache. 24 29. So long as the UNDISPUTED. The fact is established. viewer does not stop the 25 download, every time a 26 viewer streams a video on Veoh, the viewer will 27 necessarily have a complete copy of the video 28 file. -7- Because Veoh's response is limited to the colloquial, as opposed to legal, meaning of "permanent," its response does not raise a question of material fact. The fact is established. UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 30. The viewer can UNDISPUTED. The fact is established. direct her internet browser 2 to the website 3 www.veoh.com, and then type "50 Cent Candy 4 Shop" into the Veoh search box. 5 31. In response to a UNDISPUTED. The fact is established. 6 search query, Veoh searches the title, 7 description, and tag metadata associated with 8 videos uploaded to Veoh, 9 looking for videos responsive to the request. UNDISPUTED. The fact is established. 10 32. A search for "50 Cent Candy Shop" 11 returned a list of videos, including a video entitled 12 "50 Cent Featuring Olivia 13 Candy Shop." Searching for and Viewing Videos Through VeohTV 14 33. When a viewer UNDISPUTED. The fact is established. searches for videos 15 through VeohTV, Veoh 16 returns a list of the responsive videos 17 available on Veoh's website, as well as videos 18 available on other 19 websites, including Yahoo! Video. UNDISPUTED. The fact is established. 20 34. The videos located in the search are sorted by 21 tabs identifying the website from where the 22 video originated (e.g., one 23 tab for Veoh, another for Yahoo, etc.). 24 Downloading a Video Through Veoh 35. Veoh viewers can DISPUTED with respect The fact is established. 25 also download permanent to Plaintiffs' use of the Veoh does not dispute that copies of most videos phrase "permanent." The the downloading it 26 available through Veoh. copies of videos facilitates results in a copy 27 To download a video, the downloaded into the Veoh sufficiently fixed to user first downloads the player and VeohTV are establish a prima facie 28 free VeohTV software. not properly described as showing of infringement -8UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "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. UNDISPUTED. 23 36. Registration with Veoh is free. The user 24 need only provide an email address. 25 37. A viewer downloads UNDISPUTED. a video by clicking the 26 "Download Video" 27 Button. 38. When a viewer UNDISPUTED. 28 downloads a video, Veoh -9- under the Copyright Act. See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 716 (9th Cir. 2007) ("A photographic image is a work that is "`fixed' in a tangible medium of expression," for purposes of the Copyright Act, when embodied (i.e., stored) in a computer's server (or hard disk, or other storage device). The image stored in the computer is the `copy' of the work for purposes of copyright law.") (citation omitted); MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-18, 519 (9th Cir. 1993) ("[S]ince we find that the copy created in the RAM can be `perceived, reproduced, or otherwise communicated,' we hold that the loading of software into the RAM creates a copy under the Copyright Act." (quoting 17 U.S.C. 101)). Because Veoh's response is limited to the literal, as opposed to legal, meaning of "permanent," its response does not raise a question of material fact. The fact is established. The fact is established. The fact is established. UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 transfers the 256-kilobyte 2 "chunks" copy that it previously made of the 3 original video file. The VeohTV software 4 assembles these chunks together into a complete 5 copy of the original file on 6 the viewer's computer. 39. Veoh sometimes 7 uses its "peer-assisted delivery network" to 8 effectuate its viewers' 9 downloading of files. When a download is 10 "peer-assisted," some of the file a viewer seeks to 11 download is transferred from the computers of 12 other Veoh viewers who 13 have already downloaded the file being sought. 14 40. Even when the "peer-assisted" delivery 15 mechanism is employed, 16 Veoh itself (or its CDN) delivers roughly between 17 75% and 100% of the download. 18 41. When a peerassisted download 19 initiates, Veoh does not 20 inform its users that they are participating in the 21 peer-assisted distribution of the video. 22 42. When a viewer 23 wishes to download a video through VeohTV, 24 the viewer clicks the download icon. 25 43. Veoh delivers 26 videos to its users the same way for downloads 27 initiated on the web site as for downloads initiated 28 through the Veoh client UNDISPUTED. The fact is established. UNDISPUTED. The fact is established. UNDISPUTED. The fact is established. UNDISPUTED. The fact is established. UNDISPUTED. The fact is established. 1941313 - 10 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 software. Instances of Specific UMG Works Available Through Veoh 2 44. A video entitled "50 DISPUTED to the extent The fact is established. that Plaintiffs imply that Veoh does not dispute that 3 Cent Candy Shop" was available for streaming the copy of this purported the video in question was 4 and downloading on Veoh representative example of available for streaming and through VeohTV. The an infringing video is still and downloading through 5 video was referenced by available on Veoh. After Veoh and VeohTV. Plaintiffs filed this Whether or not this video 6 Veoh ID number v880111y58q2WGy. The motion, Veoh checked the is presently available, and 7 soundtrack to the video status of all five of these the circumstances contains the sound videos. Despite never surrounding its purported 8 recording for the work having received notice removal, are not facts "Candy Shop" by the artist from Plaintiffs that these material to this motion. 9 50 Cent. pr [sic] any videos were infringing (before the 10 filing of this motion), 11 Veoh had independently terminated access to each 12 of these videos back in 2007. Declaration of 13 Stacie Simons ("Simons 14 Decl."), at 6. Two of the videos were terminated in 15 response to DMCA notices Veoh received 16 from a trade organization called the Recording 17 Industry Association of 18 America. Id. The other three videos were also 19 independently terminated by Veoh. Id. 20 45. The video entitled DISPUTED to the extent The fact is established. 21 "50 Cent Candy Shop," that Plaintiffs imply that Veoh does not dispute that referenced by Veoh ID the copy of this purported the video in question was 22 number representative example of available for streaming v880111y58q2WGy, on an infringing video is still and downloading through 23 Veoh.com, had, at one available on Veoh. After Veoh and VeohTV, or that Plaintiffs filed this at one point the video had 24 point, been viewed 475 times and downloaded 61 motion, Veoh checked the been viewed 475 times 25 times, according to the status of all five of these and downloaded 61 times. statistics reported by videos. Despite never Whether or not this video 26 Veoh. having received notice is presently available, and from Plaintiffs that these the circumstances 27 pr [sic] any videos were surrounding its purported 28 infringing (before the removal, are not facts - 11 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 2 3 4 5 6 7 8 9 10 11 46. A video entitled "Fall out Boy dance 12 Dance" was available for 13 streaming and downloading on Veoh and 14 through VeohTV, referenced by Veoh ID 15 number 16 v898060DsyB38pB. The soundtrack to this video 17 contains the sound recording for the work 18 "Dance, Dance" by the artist Fall Out Boy. 19 20 21 22 23 24 25 26 27 28 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. 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 [sic] 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 material to this motion. The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. 1941313 - 12 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 [sic] 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. 48. A video entitled DISPUTED to the extent "JUST A GIRL NO that Plaintiffs imply that DOUBT" was available the copy of this purported for streaming and representative example of downloading on Veoh.com an infringing video is still and through VeohTV, available on Veoh. After referenced by ID number Plaintiffs filed this v891742AsTQR5Rq. The motion, Veoh checked the soundtrack to this video status of all five of these contains the sound videos. Despite never recording for the work having received notice "Just a Girl" by the artist from Plaintiffs that these No Doubt. pr [sic] any videos were infringing (before the filing of this motion), 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. - 13 - The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV, or that at one point the video had been viewed 353 times and downloaded 73 times. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 2 3 4 5 6 7 8 9 10 49. The video entitled 11 "JUST A GIRL NO DOUBT" referenced by 12 Veoh ID number 13 v891742AsTQR5Rq, on Veoh.com had, at one 14 time, been viewed 157 times and downloaded 22 15 times, according to the 16 statistics reported by Veoh. 17 18 19 20 21 22 23 24 25 26 27 28 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. 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 [sic] 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. The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV, or that at one point the video had been viewed 157 times and downloaded 22 times. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. 1941313 - 14 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 50. A video entitled 2 "Bon jovi- its my life" was available for streaming 3 and downloading on Veoh.com and through 4 VeohTV, referenced by ID number 5 v8379297Fyddmxj. The 6 soundtrack to this video contains the musical 7 composition for the work "It's My Life" performed 8 by the artist Bon Jovi. 9 10 11 12 13 14 15 16 17 18 19 51. The video entitled 20 "Bon Jovi- its my life" referenced by Veoh ID 21 number v8379297Fyddmxj, on 22 Veoh.com had, at one 23 time, been viewed 664 times and downloaded 71 24 times, according to the statistics reported by 25 Veoh. 26 27 28 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 [sic] 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. 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 [sic] any videos were infringing (before the filing of this motion), Veoh had independently The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV, or that at one point the video had been viewed 664 times and downloaded 71 times. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. 1941313 - 15 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 52. A video entitled DISPUTED to the extent "Mary J. Blige Take me that Plaintiffs imply that as i am" was available for the copy of this purported streaming and representative example of downloading on Veoh.com an infringing video is still and through VeohTV, available on Veoh. After referenced by ID number Plaintiffs filed this v934573ncaPJKP6. The motion, Veoh checked the soundtrack to this video status of all five of these contains the musical videos. Despite never composition for the work having received notice "It's My Life" performed from Plaintiffs that these by the artist Bon Jovi. pr [sic] 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. 53. The video entitled DISPUTED to the extent - 16 - The fact is established. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. The fact is established. UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 "Mary J. Blige Take me 2 as i am" referenced by Veoh ID number 3 v934573ncaPJKP6, on Veoh.com had, at one 4 time, been viewed 116 times and downloaded 20 5 times, according to the 6 statistics reported by Veoh. 7 8 9 10 11 12 13 14 15 16 17 18 54. Veoh has not 19 obtained authorization 20 from UMG for its exploitation of these 21 works. 22 55. The American 23 Heritage Dictionary (Houghton Mifflin 1985) 24 defines "storage" as "[t]he act of storing goods." 25 "Store" means "1. To reserve or put away for 26 future use. 2. To fill, 27 supply, or stock. 3. To deposit or receive in a 28 storehouse or warehouse." 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 [sic] 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. UNDISPUTED. Veoh does not dispute that the video in question was available for streaming and downloading through Veoh and VeohTV, or that at one point the video had been viewed 116 times and downloaded 20 times. Whether or not this video is presently available, and the circumstances surrounding its purported removal, are not facts material to this motion. The fact is established. Other Facts UNDISPUTED. The fact is established. 1941313 - 17 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 56. The American UNDISPUTED. Heritage Dictionary 2 (Houghton Mifflin 1985) 3 defines "reside" as, "1. To live in a place for an 4 extended period of time. 2. To be inherently 5 present. 3. To be vested, 6 as a power or right." 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. CONCLUSIONS OF LAW1 UMG Conclusions of Law 57-58: The fact is established. 57. Pursuant to 17 U.S.C. 106, UMG has the exclusive rights to reproduce, distribute, and perform its copyrighted works, including by way of example the works "Candy Shop," by the artist 50 Cent, "Dance, Dance," by the artist Fall Out Boy, and "Just a Girl," by the artist No Doubt. 17 U.S.C. 106(1), (3) & (6). 58. Pursuant to 17 U.S.C. 106, UMG has the exclusive rights to reproduce, distribute, and perform its copyrighted works, including by way of example the works "It's My Life," by the artist Bon Jovi, and "Take Me As I Am," by the artist Mary J. Blige. 17 U.S.C. 106(1), (3) & (4). Veoh Response to UMG's 57-58: Veoh has also not been provided sufficient discovery2 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 Veoh's Statement of Genuine Issues in Support of Its Opposition to UMG's Motion for Summary Judgment does not rebut UMG's Conclusions of Law on a paragraph-by-paragraph basis. For the convenience of the Court, UMG has attempted to group its original Conclusions of Law, Veoh's Response to UMG's Conclusions of Law, and UMG's Reply In Support Of its Conclusions of Law, consistent with Veoh's Opposition. 2 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. 1941313 1 - 18 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 reproduce, distribute, and perform its copyrighted works" under 17 U.S.C. 106 2 require a factually premature leap. 3 4 UMG's Reply to Veoh's Response to UMG's 57-58 Veoh's response attempts to avoid the actual factual conclusion. Veoh argues 5 only about proof of ownership and does not dispute the conclusion that for its own 6 copyrighted works, UMG has the exclusive rights to reproduce, distribute, and 7 publicly perform those works. Veoh does not dispute that certificates of copyright 8 registration are prima facie evidence of copyright ownership. See, e.g., Perfect 10, 9 Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1166-67 (C.D. Cal. 2002); 10 Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F. Supp. 1171, 1174 (N.D. Tex. 11 1997); Manufacturers Techs., Inc. v. Cams, Inc., 706 F. Supp. 984, 991 (D. Conn. 12 1989). See also 17 U.S.C. 410(c) ("the certificate of a registration made before or 13 within five years after first publication of the work shall constitute prima facie 14 evidence of the validity of the copyright and of the facts stated in the certificate.") 15 (emphasis added). Veoh also does not dispute that UMG has produced the relevant 16 copyright registrations. UMG's motion does not ask the Court to resolve issues of 17 ownership or infringement. Instead, UMG identifies acts which give rise to Veoh's 18 infringement liability and seeks a determination that such acts are not subject to 19 Section 512(c)'s limitation on liability. Veoh's response has nothing to do with the 20 issue presented in this motion or in UMG's Conclusions of Law. 21 22 UMG Conclusions of Law 59: 59. The download and upload of copyrighted music constitutes direct 23 infringement of copyright. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 24 1013-14 (9th Cir. 2001). 25 26 Veoh Response to UMG's 59: With respect to Paragraph 59, Veoh disputes that the upload or download of 27 files by its users is a direct (or indirect) infringement by Veoh. As Veoh has not 28 engaged in any volitional conduct with respect to the alleged infringements, Veoh - 19 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 cannot be liable for direct infringement as a result of the actions of Veoh's users. 2 See CoStar Group, Inc. v. Loopnet, Inc., 373 F.3d 554, 555-557 (4th Cir. 2004); The 3 Cartoon Network LP, LLP v. CSC Holdings, Inc., 536 F3d 121 (2d Cir., Aug. 4, 4 2008); Religious Technology Center v. Netcom On-line Communications Service, 5 Inc., 907 F.Supp. 1361 (ND Cal. 1995); Field v. Google, Inc., 412 F. Supp 2d. 1106 6 (D. Nev. 2006). In addition, Plaintiffs overstate the holding in A & M Records v. 7 Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ("Napster") as holding that "the 8 download and upload of copyrighted music constitutes direct infringement of 9 copyright." While that court noted that Napster users who "upload file names to the 10 search index for others to copy violate plaintiffs' distribution rights" . . . and 11 "Napster users who download files containing copyrighted music violate plaintiffs' 12 reproduction rights," the court explicitly stated that "the district court's conclusion 13 that plaintiffs have presented a prima facie case of direct infringement by Napster 14 users is not presently appealed by Napster." Id. at 1013-1014. Napster instead 15 sought to resolve whether the fair use affirmative defense required overturning the 16 preliminary injunction against Napster. Id. The court also stated that "absent any 17 specific information which identifies infringing activity, a computer system operator 18 cannot be liable for contributory infringement merely because the structure of the 19 system allows for the exchange of copyrighted material." Id. at 1021. 20 Moreover, in a very recent decision, Capitol Records Inc., et al. v. Thomas, 21 Civil File No. 06-1497 (MJD/RLE) (D.C. Minn. 2008), the court vacated a 22 judgment and granted a new trial for the defendant, who had been found liable for 23 infringement for making available recordings owned by the plaintiffs' (including 24 Plaintiff UMG Recordings, Inc.), on a peer-to-peer file sharing network. Declaration 25 of Jennifer Golinveaux, 7 and Exh. F. After "reviewing the Copyright Act itself, 26 the legislative history, binding Supreme Court and Eighth Circuit precedent, and an 27 extensive body of case law examining the Copyright Act," the court held that merely 28 - 20 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 making a work available to the public does not constitute a distribution. Id. at pp. 2 13-40. 3 4 UMG Reply to Veoh's Response to UMG's 59 UMG's Conclusion of Law 59 stated that the uploading and downloading of 5 copyrighted works constitutes copyright infringement. Veoh's response is 6 inapposite for two reasons. First, Veoh contests its own liability for direct 7 infringement, which is neither the subject of this conclusion, nor is it a ruling sought 8 by this motion. This motion seeks only an adjudication of whether Veoh's actions 9 which give rise to its infringement liability are eligible for protection under Section 10 512(c) of the DMCA. Veoh's attempt to dispute this conclusion of law has no 11 bearing on that central question. 12 Second, even if relevant, Veoh's arguments about its purported non13 infringement are legally unsound. Moreover, even with respect to the question of 14 infringement liability, Veoh only contests the premise that Veoh engages in direct 15 infringement, not that the conduct at issue is not infringement of any kind (such as 16 vicarious or contributory infringement). 17 Veoh itself reproduces, streams, and offers works for download. Thus, Veoh 18 is a direct infringer. See 17 U.S.C. 106(1), (3), (4), & (6); see also, e.g., MAI 19 Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-18 (9th Cir. 1993) ("since 20 we find that the copy created in the RAM can be `perceived, reproduced, or 21 otherwise communicated,' we hold that the loading of software into the RAM 22 creates a copy under the Copyright Act"); Princeton University Press v. Michigan 23 Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (reproduction of course 24 packets by photocopy store proprietor constitutes direct infringement); 2 Paul 25 Goldstein, GOLDSTEIN ON COPYRIGHT, 7.5.1 (2008) ("The crux of the distribution 26 right lies in the transfer, not the receipt, of a copy or phonorecord."); Melville B. 27 Nimmer & David Nimmer, NIMMER ON COPYRIGHT, 8.11[A] (2003) ("The 28 copyright owner thus has the exclusive right publicly to sell, give away, rent or lend - 21 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 any material embodiment of his work.") (citations omitted); Perfect 10, Inc. v. 2 Amazon.com, Inc., 487 F.3d 701, 718-19 (9th Cir. 2007) (A website "distributes 3 copies of the images by transmitting the photographic image electronically to the 4 user's computer."); Allen v. Academic Games League of America, Inc., 89 F.3d 614, 5 616-17 (9th Cir. 1996) ("The Copyright Act of 1976 confers upon copyright holders 6 the exclusive right to perform and authorize others to perform their copyrighted 7 works publicly"); Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 8 154, 158-59 (3d Cir. 1984) ("the transmission of a performance to members of the 9 public, even in private settings such as hotel rooms ... constitutes a public 10 performance"); On Command Video Corp. v. Columbia Pictures Indust., 777 F. 11 Supp. 787 (N.D. Cal. 1991) (finding infringement for videos transmitted to hotel 12 rooms because "whether the number of hotel guests viewing [a transmission] is one 13 or one hundred, and whether these guests view the transmission simultaneously or 14 sequentially, the transmission is still a public performance..."); In re Napster, Inc. 15 Copyright Litigation, 377 F. Supp. 2d 796 (N.D. Cal. 2005) ("These sources clearly 16 imply that a copyright owner seeking to establish that his or her copyrighted work 17 was distributed in violation of section 106(3) must prove that the accused infringer 18 either (1) actually disseminated one or more copies of the work to members of the 19 public or (2) offered to distribute copies of that work for purposes of further 20 distribution, public performance, or public display."). Veoh's reference to Capitol 21 Records v. Thomas is also inapposite. That case involved an individual who had 22 shared copyrighted music on a peer-to-peer network, and addressed whether making 23 files available alone constituted distribution. That holding, however, is irrelevant to 24 Veoh which does not dispute that it has actually publicly performed and distributed 25 UMG's copyrighted works hundreds of times. See SUF 45, 47, 49, 51, & 53. 26 Moreover, Veoh only disputes that it is a direct infringer. Veoh does not 27 dispute that its users are direct infringers. Thus, while UMG disagrees that Veoh is 28 not a direct infringer, even if Veoh were correct, it would still be liable for vicarious - 22 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 infringement, contributory infringement, or inducement of infringement. See, e.g., 2 Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); UMG 3 Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408 (N.D. Cal. 2004). 4 5 7 8 UMG Conclusion of Law 60 The streaming of copyrighted sound recordings over the Internet requires a Veoh Response to UMG's Conclusion of Law 60: In Paragraph 60, Plaintiffs cite footnote 7 in Bonneville Intern. Corp. v. 6 license. Bonneville Intern. Corp. v. Peters, 347 F.3d 485, 489 n.7 (3d Cir. 2003). 9 Peters, 347 F.3d 485, 489 n.7 (3d Cir. 2003) ("Bonneville") as standing for the 10 proposition that "streaming sound recordings over the internet requires a license." 11 But in Bonneville, the requirements at issue involved internet streaming of AM/FM 12 broadcast signals, and the licensing requirements set forth by Plaintiffs involve 13 "interactive, ondemand" services. Id. at 489, n. 7, 499-500.3 The entities at issue in 14 Bonneville, internet radio webcasters, intentionally select and play certain 15 copyrighted songs. Veoh's users do grant Veoh a license to stream videos uploaded 16 by users, and Veoh removes infringing works when it has notice of such 17 infringement. 18 19 UMG Reply to Veoh's Response to UMG's Conclusion of Law 60: Veoh's response concedes that a license is necessary to stream videos through 20 its service: "Veoh's users do grant Veoh a license to stream videos uploaded by 21 users[.]" Indeed, this is precisely why Veoh's Terms of Use require a user to "grant 22 Veoh a limited, non-exclusive, worldwide, revocable, sublicensable license" which 23 includes the right to "publicly display, publicly perform, transmit, distribute, copy, 24 store, reproduce and/or provide [their] Video Material and Publisher Material on or 25 through the Veoh Service, either in its original form, copy or in the form of an 26 The court in Bonneville stated that: subject matter of the 27 case, Internet streaming, should also be confused"[t]hethe use of the Internet present not with to exchange digital copies of entire songs through centralized or distributed peer-to28 peer file exchange mechanisms like Napster and KaZaA . . ." Id. at 489, n. 8. 1941313 3 - 23 - UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1 encoded work." UMG SUF 9 ("UNDISPUTED" by Veoh). UMG agrees that 2 such a license is necessary. The problem is that Veoh has not obtained licenses 3 from the copyright owners; the licenses from Veoh users cannot excuse its 4 infringement of UMG's copyrights because the users providing the "licenses" had 5 no rights to license in the underlying works. 6 Veoh's assertion that the Bonneville case relates only to the streaming of 7 "AM/FM broadcast signals" is incorrect. Rather, with respect to "streaming" the 8 very act undertaken by Veoh with thousands of UMG's copyrighted works 9 Bonneville explained that anyone with a "computer, a reasonably speedy internet 10 connection," and the ability to transcode copyrighted songs into the proper format 11 "could webcast sound recordings through streaming." Bonneville, 347 F.3d at 489. 12 The court explained that "AM/FM webcasting" was merely one species of this 13 public performance. Veoh engages in other forms of "webcasting" by streaming 14 videos. 15 Veoh also suggests, in a footnote, that Bonneville exonerated its public 16 performance because it was not similar to the activities undertaken by the infamous 17 file-sharing programs Napster and KaZaA. However, Veoh misleadingly quotes 18 from Bonneville. Bonneville actually explained: 19 20 21 22 23 24 "The 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. The legal issues surrounding file exchange of songs involve the established exclusive right to reproduction of a sound recording." 25 Id. at 489, n. 8 (emphasis added). In this case, Veoh both engages in public 26 performance, like a radio webcaster (i.e., by streaming on-demand videos) and, like 27 Napster and KaZaA, enables its users to download permanent copies of UMG's 28 copyrighted works, thereby engaging in distribution as well. Veoh engages in both - 24 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 types of infringement. Thus, Veoh (and its users) violate UMG's exclusive rights to 2 reproduction, distribution, and public performance. 17 U.S.C. 106(1), (3), (4) & 3 (6). 4 5 UMG Conclusions of Law 65-66 65. Where Veoh reproduces, distributes, and performs copyrighted works 6 through a system that (i) makes multiple copies of the copyrighted works, (ii) 7 transcodes those works into various formats, (iii) prepares the works for distribution 8 by creating an additional 256-kilobyte "chunks" copy, (iv) reformats the works into 9 pre-selected dimensions, (v) indexes metadata associated with the works so that the 10 general public can find (and then view and make permanent copies of) the works, 11 (vi) facilitates and encourages the general public to stream the works, (vii) facilitates 12 and encourages the general public to download the works, and (viii) profits from the 13 streaming and downloading of copyrighted works through the placement of 14 advertising, Veoh engages in infringing activities other than "storage" of material 15 that "resides" on Veoh's system, as contemplated by 17 U.S.C. 512(c). 16 66. Where Veoh (i) makes multiple copies of the copyrighted works, 17 (ii) transcodes those works into various formats, (iii) prepares the works for 18 distribution by creating an additional 256-kilobyte "chunks" copy, (iv) reformats the 19 works into pre-selected dimensions, (v) indexes metadata associated with the works 20 so that the general public can find (and then view and make permanent copies of) 21 the works, (vi) facilitates and encourages the general public to stream the works, 22 (vii) facilitates and encourages the general public to download the works, and (viii) 23 profits from the streaming and downloading of copyrighted works through the 24 placement of advertising, Veoh engages in infringing activities other than storage 25 "at the direction of a user," as contemplated by 17 U.S.C. 512(c). 26 27 Veoh Opposition to UMG Conclusions of Law 65-66 Paragraphs 65 and 66 set forth legal conclusions far beyond the issue of 28 Veoh's eligibility for safe harbor protection, and instead ask this Court to reach - 25 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 premature legal conclusions that Veoh "engages in infringing activities." Veoh 2 specifically disputes that any of the actions described in paragraphs 65 and 66 3 constitute either direct or indirect infringement by Veoh even apart from Veoh's 4 eligibility for Section 512(c) safe harbor. In addition, none of these actions make 5 Veoh ineligible for Section 512(c) safe harbor as set forth in Section III of Veoh's 6 Opposition to Plaintiffs' Motion for Partial Summary Judgment. Plaintiffs also add 7 to this paragraph subsections (vi) and (vii) that assume that Veoh "facilitates and 8 encourages" infringing activities, despite the fact that none of the supposed facts to 9 support these legal conclusions were listed in Plaintiffs' Statement of 10 Uncontroverted Facts, and are instead wholly contradicted by the record and Veoh's 11 strong policies against infringement. (Opp., Passim). As Veoh has not engaged in 12 any volitional conduct with respect to the alleged infringements, Veoh cannot be 13 liable for direct infringement as a result of the actions of Veoh's users. See CoStar 14 Group, Inc. v. Loopnet, Inc., 373 F.3d 554, 555-557 (4th Cir. 2004); The Cartoon 15 Network LP, LLP v. CSC Holdings, Inc. 536 F3d 121 (2d Cir., Aug. 4, 2008); 16 Religious Technology Center v. Netcom On-line Communications Service, Inc., 907 17 F.Supp. 1361 (ND Cal. 1995); Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 18 2006). 19 Veoh has also already been found to fall squarely within the protections of the 20 Section 512(c) safe harbor. Io Group, Inc., supra at 20. In reaching its decision, the 21 court in Io Group Inc. found Veoh's automated technological features that permit 22 access to videos did not remove Veoh from the safe harbor, and found Veoh to be a 23 model citizen under the DMCA. Id. at 31 ("[f]ar from encouraging infringement, 24 Veoh has a strong DMCA policy, takes active steps to limit incidents of 25 infringement on its website and works diligently to keep unauthorized works off its 26 website"); see also, The Cartoon Network LP, LLP v. CSC Holdings, Inc. --F3d--, 27 Nos. 07-1480-cv(L), 07-1511-cv(CON) 2008 WL 2952614 at *9 (2d Cir., Aug. 4, 28 2008) (the court found "significant," in reversing a finding of infringement against - 26 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 the defendant, that the defendant was not "volitionally" involved in making 2 infringing copies, as any such copies would be made by the defendant's users 3 through automated functions.) 4 5 UMG Reply In Support Of Conclusion of Law 65-66 UMG is not presently seeking an adjudication of Veoh's direct or indirect 6 infringement. The only question before the Court is, assuming that Veoh's 7 reproduction, public performance, and distribution of UMG's copyrighted works is 8 direct or indirect infringement, is that infringement "by reason of" Veoh's "storage" 9 of those copyrighted works? The cases cited by Veoh including Cartoon Network, 10 Netcom, and CoStar purported to decide issues only relating to direct 11 infringement, not to the DMCA. Thus, these cases do not address whether Veoh's 12 infringement is by reason of "storage at the direction of a user." 13 Though again the Court need not decide the issue, Veoh is also incorrect that 14 UMG has not provided facts relating to Veoh's facilitation and encouragement of 15 infringement. As described in UMG's Opening Memorandum, Veoh's business 16 model revolves around its and its users' infringement of UMG's copyrighted works 17 through a system designed and operated by Veoh. While the issue of Veoh's 18 secondary liability is not presently before the Court, the undisputed facts show that 19 Veoh facilitates and encourages extensive infringement of copyrights. Moreover, as 20 noted in UMG's Reply Memorandum, Veoh does not have a "strong" policy against 21 infringement indeed, it only installed and ran filtering software in June 2008, 22 despite that fact that its peer websites began using filtering software as early as 23 November 2006. Moreover, the mere existence of a policy is insufficient if, as in 24 this case, that policy is a paper tiger. See, e.g., In re Aimster Copyright Litig., 334 25 F.3d 643, 655 (7th Cir. 2003) (explaining that to enact a sufficient repeat infringer 26 policy under Section 512, "the service provider must do what it can reasonably be 27 asked to do to prevent the use of its service by `repeat infringers'"). 28 - 27 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 Finally, for the reasons discussed extensively in UMG's Opening 2 Memorandum and Reply Memorandum, the Io Group decision neither addressed 3 this issue nor is its analysis legally tenable. 4 5 UMG Conclusions of Law 67-68 67. The "storage" of material for some of Veoh's operations does not 6 immunize its other infringing conduct. See, e.g., Fair Housing Council of San 7 Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). 8 The limitation on liability under 512(c) applies only to "storage," not to all other 9 activities subsequent to or additional to storage. 10 68. Veoh's infringement liability does not arise by reason of "storage at the 11 direction of a user" as set forth in 17 U.S.C. 512(c). Thus, Veoh's actions are not 12 subject to the limitation on liability found in section 512(c). 13 14 Veoh Opposition to UMG Conclusions of Law 67-68 In Paragraphs 67 and 68, Plaintiffs set forth another flawed legal conclusion 15 already rejected in Io Group, Inc.--that Veoh's Section 512(c) protections should 16 not extend to the automated functions that facilitate user access to content uploaded 17 by Veoh's users. (See Opp. pp. 6-8). The only cases cited by Plaintiffs (Fair 18 Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th 19 Cir. 2008) and Atlantic Recording Corp. v. XM Satellite Radio, Inc., 2007 WL 20 136186 (S.D.N.Y. Jan. 19, 2007) (See Opp. pp. 24-25)) do not involve the DMCA 21 and are irrelevant to Veoh's eligibility for Section 512(c) safe harbor. 22 23 UMG Reply In Support Of UMG Conclusions of Law 67-68 Veoh asserts that the Fair Housing Council and Atlantic Recording cases are 24 "irrelevant" because they "do not involve the DMCA." But UMG cited these cases 25 as examples of the well-established (and common sense) principle that a statutory 26 safe harbor or immunity for certain activities cannot be relied upon to establish 27 blanket immunity for all activities engaged in by a company. See, e.g., Fair 28 Housing Counsel, 521 F.3d at 1162-63 ("a website may be immune from liability - 28 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 for some of the content it displays to the public but subject to liability for other 2 content"); Atlantic Recording, 2007 WL 136186, *6 ("XM is not being sued in its 3 capacity as a DARD [digital audio recording device] distributor; therefore XM is not 4 immunized from this suit under the protection offered by the AHRA [Audio Home 5 Recording Act]."). 6 The DMCA is similar. It provides a limitation on liability only for certain 7 precisely-defined acts. Even if Veoh engages in "storage" with respect to certain 8 copyrighted works, its infringement liability in this case is not by reason of that 9 storage, but instead by reason of its reproduction, public performance, and 10 distribution of copyrighted works and the DMCA is therefore inapplicable to 11 Veoh. The Ninth Circuit expressly rejects Veoh's view. See Perfect 10, Inc. v. 12 CCBill LLC, 488 F.3d 1102, 1116-17 (9th Cir. 2007) (recognizing that the "by 13 reason of" language used in the DMCA limits the reach of the "safe harbor" 14 protections to the specifically listed conduct such that other "functions would 15 remain outside of the safe harbor"). 16 Rather than address this principle and the clear limitation of the statute to 17 "storage," Veoh repeats its assertion that Section 512(c) of the DMCA excuses 18 "automated functions that facilitate user access to content uploaded by Veoh's 19 users." Nothing in the plain text of the statute supports Veoh's assertion the 20 touchstone of the DMCA is "storage" not "access." Moreover, even if the statute 21 covered infringement "by reason of giving access" again, not what the plain text 22 of the statute says Veoh's own actions go far beyond what is necessary to allow 23 users to "access" videos. Veoh could give access to a copyrighted work by acting as 24 a storage facility. If it did so, Veoh would not need to create multiple copies of 25 copyrighted works. Similarly, it would not need to publicly perform copyrighted 26 works through streaming to any member of the public, not just the user who 27 uploaded the video. Finally, and most clearly, even if all "access" were excused by 28 the DMCA, that does not explain how Veoh could distribute permanent copies of - 29 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT 1941313 1 copyrighted works to the public. A download is a means to create and retain a 2 complete copy of the work distribution. This kind of conduct (along with all of 3 the other commercially-focused reformatting, progressive-download streaming, and 4 reproduction that Veoh performs) goes far beyond anything that would be required 5 merely to provide "access" as Veoh suggests. 6 7 8 Dated: October 10, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 30 UMG'S REPLY STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT IRELL & MANELLA LLP Steven A. Marenberg Elliot Brown Brian Ledahl Benjamin Glatstein By: /s Brian Ledahl Brian Ledahl Attorneys for Plaintiffs 1941313

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