Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 390

NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Redacted Version of the Declaration of Andrew Leibnitz and Exhibits Thereto, Filed in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Exhibits Thereto (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37)(Munn, Janet)

EXHIBIT 10

Case 1:07-cv-02103-LLS Document 284

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Subject to Protective Order – HIGHLY CONFIDENTIAL

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
__________________________________________
)
VIACOM INTERNATIONAL INC.,
)
COMEDY PARTNERS,
)
COUNTRY MUSIC TELEVISION, INC.,
)
PARAMOUNT PICTURES CORPORATION,
)
and BLACK ENTERTAINMENT TELEVISION )
LLC,
)
)
Plaintiffs,
)
v.
)
)
YOUTUBE INC., YOUTUBE, LLC, and
)
GOOGLE, INC.,
)
)
Defendants.
)
)
__________________________________________)

Case No. 1:07-cv-02103 (LLS)
(Related Case No. 1:07-cv-03582 (LLS)

VIACOM’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Stuart J. Baskin (No. SB-9936)
John Gueli (No. JG-8427)
Kirsten Nelson Cunha (No. KN-0283)
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

Paul M. Smith (No. PS-2362)
William M. Hohengarten (No. WH-5233)
Scott B. Wilkens (pro hac vice)
Matthew S. Hellman (pro hac vice)
JENNER & BLOCK LLP
1099 New York Avenue, NW
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Susan J. Kohlmann (No. SK-1855)
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs

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Subject to Protective Order – HIGHLY CONFIDENTIAL

D.

Defendants Have Also Failed to Show That They Have Satisfied Several
Other Preconditions of the DMCA Defense.

In addition to the foregoing DMCA requirements, which Viacom addressed in its own
summary judgment motion, Defendants have failed to establish as a matter of law that they meet
several other preconditions of the DMCA. Most notably, they have not carried their summary
judgment burden of establishing that (1) their implementation of a repeat infringer policy
satisfied the requirements of § 512(i), and (2) that their response to takedown notices satisfied
the requirements of § 512(c)(1)(C). Although Viacom did not move for summary judgment on
these issues, the burden is on Defendants to establish that they meet all of the preconditions of
the DMCA to qualify for the defense. Therefore, these issues are independent reasons why
Defendants’ motion for summary judgment on their DMCA defense must be denied.24
Defendants’ inadequate implementation of a repeat infringer policy and inadequate
response to takedown notices are also germane for an additional reason: they represent further
manifestations of Defendants’ intent to facilitate infringement when operating the YouTube site,
and therefore are relevant under Grokster and the knowledge and awareness prong of the

24

On top of these requirements, Defendants also essentially concede that for the period before
October 21, 2005, they did not meet the DMCA’s requirement that they register their designated
agent to receive takedown notices with the Copyright Office. Section 512(c)(2) provides: “The
limitations on liability established in this subsection apply to a service provider only if the
service provider has designated an agent to receive notifications of claimed infringement
described in paragraph (3), . . . by providing to the Copyright Office, substantially the following
information: (A) the name, address, phone number, and electronic mail address of the agent.”
17 U.S.C. § 512(c)(2) (emphasis added). Defendants provide no evidence that they complied
with this requirement before October 21, 2005. See Hurley Decl. ¶ 21 & Ex. 26. Moreover,
§ 512(c)(2) unambiguously provides that the safe harbor applies to a service provider “only if” it
registers its designated agent with the Copyright Office. Therefore, Defendants are not entitled
to the DMCA defense for the period before October 21, 2005. See Ellison v. Robertson, 357
F.3d 1072, 1077 (9th Cir. 2004) (denying service provider AOL’s motion for summary judgment
on DMCA defense in part because “AOL changed its contact e-mail address from
‘[e-mail]’ to ‘[e-mail]’ in the fall of 1999, but waited until April 2000
to register the change with the U.S. Copyright Office”).

45

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