Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
420
NOTICE by Hotfile Corp., Anton Titov of Filing PUBLICLY FILED REDACTED Version of the Declaration of Janel Thamkul Filed In Support of Memoranda In Support of Motions for Summary Judgment (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)(Munn, Janet)
EXHIBIT 1
http://ugcprinciples.com/
User Generated Content Principles
Principles for User Generated Content
Foster Innovation. Encourage Creativity. Thwart Infringe
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Translated
Principles
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The following companies
support these principles:
CRACKLE
Doilymotion
sevenload
Leading commercial copyright owners ("Copyright Owners") and services
providing user-uploaded and user-generated audio and video content ("UGC
Services") have collaborated to establish these Principles to foster an online
environment that promotes the promises and benefits of UGC Services and
protects the rights of Copyright Owners. In this context, UGC Services are
services such as Soapbox on MSN Video, MySpace, Dailymotion and Veoh.com,
and not other technologies such as browsers, applets, email, or search services.
While we may differ in our interpretation of relevant laws, we do not mean to
resolve those differences in these Principles, which are not intended to be and
should not be construed as a concession or waiver with respect to any legal or
policy position or as creating any legally binding rights or obligations. We
recognize that no system for deterring infringement is or will be perfect. But,
given the development of new content identification and filtering technologies,
we are united in the belief that the Principles set out below, taken as a whole,
strike a balance that, on a going-forward basis, will result in a more robust,
content-rich online experience for all.
In coming together around these Principles, Copyright Owners and UGC Services
recognize that they share several important objectives: (1) the elimination of
infringing content on UGC Services, (2) the encouragement of uploads of wholly
original and authorized user-generated audio and video content, (3) the
accommodation of fair use of copyrighted content on UGC SerVices, and (4) the
protection of legitimate interests of user privacy. We believe that adhering to
these Principles will help UGC Services and Copyright Owners achieve those
objectives.
1. UGC Services should include in relevant and conspicuous places on their
services information that promotes respect for intellectual property rights
and discourages users from uploading infringing content.
2. During the upload process, UGC Services should prominently inform
users that they may not upload infringing content and that, by uploading
content, they affirm that such uploading complies with the UGC Service's
terms of use. The terms of use for UGC Services should prohibit
infringing uploads.
3. UGC Services should use effective content identification technology
("Identification Technology") with the goal of eliminating from their
services all infringing user-uploaded audio and video content for which
Copyright Owners have provided Reference Material (as described
below). To that end and to the extent they have not already done so, by
the end of 2007, UGC Services should fully implement commercially
reasonable Identification Technology that is highly effective, in relation to
other technologies commercially available at the time of implementation,
in achieving the goal of eliminating infringing content. UGC Services
should enhance or update the Identification Technology as commercially
reasonable technology that makes a meaningful difference in achieving
the goal becomes available.
SONY
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User Generated Content Principles
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a. If a Copyright Owner has provided: (1) the reference data for
content required to establish a match with user-uploaded content,
(2) instructions regarding how matches should be treated, and (3)
representations made in good faith that it possesses the appropriate
rights regarding the content (collectively, "Reference Material"),
then the UGC Service should apply the Identification Technology to
that content to implement the Filtering Process described below.
UGC Services should ensure that reasonable specifications, as well
as any tools and/or technical support, for the delivery of Reference
Material are made available to Copyright Owners. If a Copyright
Owner does not include in the Reference Material instructions
regarding how matches should be treated, the UGC Service should
block content that matches the reference data.
b. The Identification Technology should use Reference Material to
identify user-uploaded audio and video content that matches the
reference data and should permit Copyright Owners to indicate how
matches should be treated.
c. If the Copyright Owner indicates in the applicable Reference
Material that it wishes to block user-uploaded content that matches
the reference data, the UGC Service should use the Identification
Technology to block such matching content before that content
would otherwise be made available on its service ("Filtering
Process"). The Copyright Owner may indicate in the applicable
Reference Material that it wishes to exercise an alternative to
blocking (such as allowing the content to be uploaded, licensing use
of the content or other options), in which case, the UGC Service
may follow those instructions or block the content, in its discretion.
d. Copyright Owners and UGC Services should cooperate to ensure
that the Identification Technology is implemented in a manner that
effectively balances legitimate interests in (1) blocking infringing
user-uploaded content, (2) allowing wholly original and authorized
uploads, and (3) accommodating fair use.
e. UGC Services should use the Identification Technology to block
user-uploaded content that matches Reference Material regardless
of whether the UGC Service has any licensing or other business
relationship with the Copyright Owners who have provided such
Reference Material (except that UGC Services may require that
Copyright Owners enter into agreements with respect to the
specifications for delivery of Reference Material that are
commercially reasonable and that facilitate the provision of
Reference Material by Copyright Owners and promote the goal of
the elimination of infringing content). If a Copyright Owner
authorizes specific users to upload content that would otherwise
match Reference Material submitted by the Copyright Owner, the
Copyright Owner should provide to the UGC Service a list of such
users (a so-called white list).
f. UGC Services may, at their option, utilize manual (human) review of
all user-uploaded audio and video content in lieu of, or in addition
to, use of Identification Technology, if feasible and if such review is
as effective as Identification Technology in achieving the goal of
eliminating infringing content. If a UGC Service utilizes such manual
review, it should do so without regard to whether it has any
licensing or other business relationship with the Copyright Owners.
Copyright Owners and UGC Services should cooperate to ensure
that such manual review is implemented in a manner that
effectively balances legitimate interests in (1) blocking infringing
user-uploaded content, (2) allowing wholly original and authorized
uploads, and (3) accommodating fair use.
g. Copyright Owners should provide Reference Material only with
respect to content for which they believe in good faith that they
have the appropriate rights to do 50, and should update rights
information as reasonable to keep it accurate. The inclusion of
reference data for content by, or at the direction of, a Copyright
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User Generated Content Principles
Owner shall be deemed to be an implicit representation made in
good faith that such Copyright Owner has the appropriate rights
regarding such content. Copyright Owners should reasonably
cooperate with UGC Services to avoid unduly stressing the Services'
Identification Technology during limited periods when Copyright
Owners, collectively, may be providing an overwhelmingly high
volume of Reference Material. UGC Services should reasonably
cooperate with Copyright Owners to ensure that such Reference
Material is utilized by the Identification Technology as soon as
possible during such overload periods.
h. Promptly after implementation of Identification Technology, and at
intervals that are reasonably timed throughout each year to achieve
the goal of eliminating infringing content, UGC Services should use
Identification Technology throughout their services to remove
infringing content that was uploaded before Reference Material
pertaining to such content was provided.
i. Copyright Owners and UGC Services should cooperate in developing
reasonable procedures for promptly addressing conflicting claims
with respect to Reference Material and user claims that content that
was blocked by the Filtering Process was not infringing or was
blocked in error.
4. UGC Services and Copyright Owners should work together to identify
sites that are clearly dedicated to, and predominantly used for, the
dissemination of infringing content or the facilitation of such
dissemination. Upon determination by a UGC Service that a site is so
dedicated and used, the UGC Service should remove or block the links to
such sites. If the UGC Service is able to identify specific links that solely
direct users to particular non-infringing content on such sites, the UGC
Service may allow those links while blocking all other links.
5. UGC Services should provide commercially reasonable enhanced
searching and identification means to Copyright Owners registered with a
service in order: (a) to facilitate the ability of such Copyright Owners to
locate infringing content in all areas of the UGC Service where
user-uploaded audio or video content is accessible, except those areas
where content is made accessible to only a small number of users (not
relative to the total number of users of the UGC Service), and (b) to
send notices of infringement regarding such content.
6. When sending notices and making claims of infringement, Copyright
Owners should accommodate fair use.
7. Copyright Owners should provide to UGC Services URLs identifying online
locations where content that is the subject of notices of infringement is
found - but only to the extent the UGC Service exposes such URLs.
8. When UGC Services remove content pursuant to a notice of
infringement, the UGC Service should (a) do so expeditiously, (b) take
reasonable steps to notify the person who uploaded the content, and (c)
promptly after receipt of an effective counter-notification provide a copy
of the counter-notification to the person who provided the original notice,
and, at its option, replace the content if authorized by applicable law or
agreement with the Copyright Owner.
9. When infringing content is removed by UGC Services in response to a
notice from a Copyright Owner, the UGC Service should use reasonable
efforts to notify the Copyright Owner of the removal, and should permit
the Copyright Owner to provide, or request the UGC Service to provide
on its behalf, reference data for such content to be used by the
Identification Technology.
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User Generated Content Principles
http://ugcprinciples.com/
10. Consistent with applicable laws, including those directed to user privacy,
UGC Services should retain for at least 60 days: (a) information related
to user uploads of audio and video content to their services, including
Internet Protocol addresses and time and date information for uploaded
content; and (b) user-uploaded content that has been on their services
but has been subsequently removed following a notice of infringement.
UGC Services should provide that information and content to Copyright
Owners as required by any valid process and consistent with applicable
law.
11. UGC Services should use reasonable efforts to track infringing uploads of
copyrighted content by the same user and should use such information in
the reasonable implementation of a repeat infringer termination policy.
UGC Services should use reasonable efforts to prevent a terminated user
from uploading audio and/or video content following termination, such as
blocking re-use of verified email addresses.
12. In engaging in the activities set forth in these Principles outside the
United States, UGC Services and Copyright Owners should follow these
Principles to the extent that doing so would not contravene the law of the
applicable foreign jurisdiction.
13. Copyright Owners should not assert that adherence to these Principles,
including efforts by UGC Services to locate or remove infringing content
as provided by these Principles, or to replace content following receipt of
an effective counter notification as provided in the Copyright Act, support
disqualification from any limitation on direct or indirect liability relating to
material online under the Copyright Act or substantively similar statutes
of any applicable jurisdiction outside the United States.
14. If a UGC Service adheres to all of these Principles in good faith, the
Copyright Owner should not assert a claim of copyright infringement
against such UGC Service with respect to infringing user-uploaded
content that might remain on the UGC Service despite such adherence to
these Principles.
15. Copyright Owners and UGC Services should continue to cooperate with
each other's reasonable efforts to create content-rich, infringement-free
services. To that end, Copyright Owners and UGC Services should
cooperate in the testing of new content identification technologies and
should update these Principles as commercially reasonable, informed by
advances in technology, the incorporation of new features, variations in
patterns of infringing conduct, changes in users' online activities and
other appropriate circumstances.
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