Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 201

DECLARATION of William M. Hohengarten (Part Three) Exhibit 12 - Part 15 in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 12 - Part 16, # 2 Exhibit 12 - Part 17, # 3 Exhibit 12 - Part 18, # 4 Exhibit 12 - Part 19, # 5 Exhibit 12 - Part 20, # 6 Exhibit 13, # 7 Exhibit 14, # 8 Exhibit 15, # 9 Exhibit 16, # 10 Exhibit 17, # 11 Exhibit 18, # 12 Exhibit 19, # 13 Exhibit 20, # 14 Exhibit 21, # 15 Exhibit 22, # 16 Exhibit 23, # 17 Exhibit 24, # 18 Exhibit 25, # 19 Exhibit 26, # 20 Exhibit 27, # 21 Exhibit 28, # 22 Exhibit 29, # 23 Exhibit 30, # 24 Exhibit 31, # 25 Exhibit 32, # 26 Exhibit 33, # 27 Exhibit 34, # 28 Exhibit 35, # 29 Exhibit 36, # 30 Exhibit 37, # 31 Exhibit 38, # 32 Exhibit 39, # 33 Exhibit 40, # 34 Exhibit 41)(Kohlmann, Susan)

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2006-04-03 21 37 55 GMT [Newsfeed] Dallas Star-Telegram - Mad About You Tube

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This is a great regional piece in one of the largest U S cities Heather really captured the passion of the YouTube user and would have convinced me as her reader to check out the service Also, notice some of our new messaging included about a new "clip culture!"

Posted on Sun, Apr 02, 2006

Mad About You Tube By HEATHER SVOKOS STAR-TELEGRAM STAFF WRITER Editor's note The YouTube Web site contains material that some people may find offensive

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Just one visit to the Web's latest "It" site can serve up a most weird and wonderful visual feast On my menu one recent work day The controversial Scientology-themed, Tom Cruise-spoofing "Trapped in the Closet" episode of South Park (So controversial that Comedy Central has refused to re-air it) Fort Worth's Landmark Tower implosion One of my all-time favorite skits from the old Electric Company children's TV show Jon Stewart's opening monologue to the Oscars, plus the "gay western" montage Some dude sitting in his bedroom playing Pachelbel's Canon in D on electric guitar A monkey doing karate This is YouTube (www youtube com), an explosively popular video sharing site that's taking the Internet by storm, much like Napster did a cyber-generation ago, and sitting pretty on the fringe of a 21st-century culture shift Even in the warp speed of the digital age, the pace of YouTube's rocket into the Zeitgeist is astounding It's gone from pipsqueak to major media player in what feels like 60 seconds flat It was a smart idea that caught a wave at the right time, and now it's giddily feeding a few of our most human cravings the urge to share, connect, and to see it for ourselves Instead of you telling me about the great bit you saw on The Daily Show last week, give me the link so I can check it out on my own Once a relatively off-the-map site known largely for goofy amateur video offerings, YouTube vaulted into our consciousness several months ago on the strength of a video clip called "Lazy Sunday," a hilarious Saturday Night Live digital short film The site got even more traction several few weeks ago when e-mail inboxes across the country were pelted with YouTube links to the clever, live-action version of The Simpsons opening theme These two little time-wasters are what's known as "viral video" - a clip so funny or must-see that it spreads from user to user through cyberspace with the speed of a virus (But without the nasty ramifications of a virus) Among mainstream media outlets, the viral video craze has spawned both legal animosity and if-you-can't-beat'em-join-'em-style collaboration Power to the people Certainly, YouTube doesn't have a monopoly on viral video More and more sites now offer video sharing Google, Yahooi, AOL and MSN all offer the service, as does a site called iFilm But none of them can claim the runaway success of YouTube, which, for the week ending March 25 had three times more traffic than Google Video and Yahooi Video, and 4 times that of AOL Video, according to Hitwise, an Internet tracking firm As of Monday evening, Alexa, a site that tracks online traffic, had YouTube ranked at No 30 in their top 100 English language sites - above Net powerhouses like Weather com (No 31), MapQuest (32) and Match com (41) Why? First, it's done for video sharing what LiveJournal and Blogger did for blogs make it freakishly easy to use A free YouTube account doesn't have as many hurdles as some of the other sites You can be uploading and sharing video within minutes of wandering onto the site Also, for the slightly more Web-sawy, it's possible to insert a YouTube video onto a blog, Web page or a MySpace profile For instance, Fort Worth-based graphic designer and Web developer Marty Yawnick shot some video footage of Fort Worth's Landmark Tower implosion on March 18 He put the video on YouTube and within three hours it

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had more than 100 views, says his business partner, Devm Pike "With the Internet video revolution, what really powers it is somebody like Marty coming back from an event with a piece of video, saying 'I want to share this,'" Pike says "Rather than having to jump through the hoops that Google Video makes you jump through, he goes on the site, gets a free account, and does it himself" Another distinction Because the site is largely peer-to-peer sharing, and not owned by a behemoth like Viacom (iFilm's owner), YouTube's vast library includes a combination of user-created content and copyrighted clips Casual YouTube visitors may initially find it difficult to find much meaningful content on YouTube If you just browse around aimlessly - even in the site's Most Viewed clips - you might get the idea that perhaps it's nothing more than a vast landfill of randomness, loserdom and the occasional foray into amateur porn After watching a couple of guys do the robot, a high school boy imitate his mother reading his report card, and some kid do finger breakdancing for a very looong 55 seconds, you have to wonder Is this all there is 9 Unfortunately for your workplace productivity, that answer would be a big "No " The key is to know what you're looking for Are you a West Wing fan who missed the scene a few episodes ago where Josh and Donna finally locked lips'? Go to the search field, type in "west wing josh donna " and the scene pops up Of course, you won't be able to find everything you're looking for, but the range of stuff available is nothing short of mind-boggling You can find everything from some of your favorite Sesame Street segments (Ladybug Picnic') to the brilliant six-minute ending sequence from the series finale of Six Feet Under to the Dead Kennedys doing Holiday in Cambodia, circa 1982 So YouTube has not only become a colossal stage for amateur filmmakers, animators, parodists and all the world's random weirdos, but has also fashioned itself into an archive of pop culture, one of the coolest nostalgia trips ever And it's only getting bigger 'Crazy delicious' expansion Pike, the Fort Worth-based graphic designer, says that every day YouTube is serving out more than 45 terabytes of video "That's the equivalent of almost 13 trillion MP3 files coming off their servers and getting dished out to the public every day" Enough, he says, to fill up 2,000 60G video iPods "With that much video getting put out - and it's not just people's cute cats jumping on top of dogs - it's full television programs like South Park - I don't think people are going to be throwing up The Shield finale an hour after it airs, but the possibility does exist for it" (YouTube doesn't want people uploading full programs, so, along with its 100 megabyte size limit, it's recently instituted a 10-minute time limit) As for cute cats jumping on someone's dog, YouTube spokeswoman Julie Supan says that wasn't far off the original mark "I think that's what we thought we were building," Supan says The idea came about in January 2005, when founders Chad Hurley and Steve Chen - both early employees of the online payment service PayPal - got together at a dinner party and took some video They tried to send it to friends, but couldn't send it via e-mail because the file was too big "At the time there were a dozen or more photo sharing sites, like Shutterfly," Supan says, adding that back then there wasn't any simple way to share video The California-based site launched in November 2005 Three months ago, YouTube had about 3 million videos being viewed per day, 8,000 being uploaded per day "We really were building a personal video sharing network, essentially," Supan says, "for people to share video with their family, their friends"

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Then the stars aligned On Dec 17, Saturday Night Live aired the "Lazy Sunday" video, a short film that has comedians Andy Samberg and Chris Parnell rapping about The Chronicles of Narnia and their love of cupcakes Someone uploaded it onto YouTube and the thing forwarded like mad Today, Supan says, the site gets about 100 million page views per day, people are watching 30 million videos per day on the site, and 35,000 video clips are being uploaded per day Since November, the staff has grown from five to 25 "In three months, it's grown tenfold," Supan says "Over the course of the last few months, we've seen this huge cultural shift in how entertainment's been evolving, and how media distribution is evolving " She says that what started as a personal sharing solution has in effect become an entertainment destination YouTube is now a consumer media company well-suited to the "clip culture" in which we live But if a video is copyrighted, it may have a short shelf life on YouTube Copyright 'n' strange bedfellows Take "Lazy Sunday," for example Shortly after the clip was posted on YouTube, YouTube CEO Chad Hurley decided to make a pre-emptive move On Dec 28, he e-mailed NBC, asking if the network would be interested in partnering with YouTube, and about the possibility of getting more SNL content onto the site Or, he asked, did NBC simply want YouTube to remove the clip'' According to Supan, NBC sent back a note saying, essentially "Thanks, we'll get back to you " They finally heard back from the network on Feb 3 NBC asked YouTube to remove the "Lazy Sunday" links (NBC asked other video-sharing sites to remove the clip as well) After that, NBC posted "Lazy Sunday" on its own site, along with other video clips, like the digital short of Natalie Portman busting out a gangsta rap, the clips are also available for purchase on iTunes "Essentially," Supan says, "all the viral videos on the NBC site were viral on YouTube first" As YouTube has moved into the mainstream it has raised questions of copyright infringement reminiscent of Napster But there's a crucial difference between YouTube and the former peer-to-peer music-sharing site, which came under legal fire in 1999 and 2000 (Although Napster re-emerged as a traditional pay-for-play site a few years ago, it's never reclaimed its former superstar status) The biggest distinction is that YouTube is protected under the Digital Millennium Copyright Act, says Wendy Seltzer, a fellow at the Berkman Center for Internet & Society at Harvard Law School Specifically, Seltzer explains, the DMCA's Safe Harbor provision says that the host of Internet content posted by users won't be held liable for user copyright infringement if they have a "notice and takedown" policy, and if they respond expeditiously to notices claiming copyright infringement As long as YouTube follows the notice and takedown rules, it's immune from liability, Seltzer says So what does happen when a copyright holder gets wind of an inf ringement"? The copyright holder sends the site a DMCA notification letter - not a cease-and-desist letter, which is a more serious document that shows an intent to sue The notification letter points out all the specific links they believe are infringement material "From there we cooperate with them," YouTube's Supan says, "and we then shut down the links promptly " But here's where the culture shift starts to show For every DMCA notification letter they get (about a handful a week), Supan says there are five calls to partner with YouTube Major networks, indie networks, TV studios and record labels are coming forward to put their

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content on the site for promotional purposes Oddly enough, YouTube execs say these conflicting legal and promotional issues often unknowingly come from the same company, according to a story in The Hollywood Reporter "There's been a few examples of marketing departments uploading content directly to the site, while on the other side of the company their attorney is demanding we remove this content," YouTube co-founder Hurley told the trade publication Meanwhile, YouTube is gearing up for more partnerships, and even advertising "We're moving cautiously to put advertising on the site," Supan says "We're going to find ways to advertise that don't jeopardize the viewing experience You're going to see a lot of announcements in the next few months" And, faster than you can count them, more and more partnerships are bubbling up on the viral video landscape In January, VH1 partnered with iFilm to launch Web Junk 20, a weekly countdown of the best viral videos, and in February, the NBC-owned Bravo network premiered its offering Outrageous and Contagious Viral Videos Again, things move like lightning in this realm, so catch all the lunacy while you can Because before you know it, the karate-chopping monkey will have his own copyright, and you won't be able to watch him without paying And wouldn't that be a kick in the head? Now you see it Our recent odyssey on YouTube unearthed a treasure trove of nostalgia and weirdness It's only fair to share some of our favorites Sesame Street Ladybugs' Picnic http //youtube com/watcrT?v=Xr8vUTm64hO Of all the wonderful songs in the Sesame Street canon, this is one of the most delightful Electric Company Sweet Roll http //youtube com/watclY?v=v-05f nYaDT4 This sketch helped hone our love of absurdist humor R E M on Letterman, 1983 http //youtube com/watch?v=Ykp0Vq77IBw This was the band's first television appearance They perform So Central Rain, then a song so new it didn't yet have a title Will You Go to Prom With Me http //youtube com/watch'?v=2e6_Ne6y7gs A girl, a prom dress, a kid brother and a dancing grandma Let the good times roll Note The girl is actually singing along to a recording of a song called Jesse Buy Nothing Go to Prom Anyways, by Hellogoodbye Monkey karate http //youtube com/watch"?v=vgC62GD2BMw Need we say more?

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Crazy dog http //youtube com/watch"?v=4cSRpu7bl04 When you look at your paw and see a mortal enemy Live-action Simpsons theme http //youtube com/watch?v=brh6KRvQHBc Created by a British TV station as a promo for its airing of The Simpsons, this clever piece re-creates the opening theme of the popular Fox show, with real people Josh, Donna kiss on The West Wing http //youtube com/watch'?v=436uVJIAal4 After season upon season of sexual tension between Josh Lyman and his assistant, Donna Moss, we finally got to see a hot embrace Six Feet Under finale http //youtube com/watch?v=Or0sDw4qGIY The final six minutes of the series finale, which begins with Claire's drive away from home, and flutters into the beautiful flash-forward montage that shows how each character will die in the future Smart Beep "That Was Stupid" commercial http //youtube com/watch?v=WDVRj3u3ZiY An oldie but a goodie, this classic "banned" commercial saw the light of day on the Internet several years back, but not as an ad on American TV Also, to check out the digital shorts "Lazy Sunday" and "Natalie raps," visit www nbc com -- Heather Svokos

Heather Svokos, [phone] hsvokos@star-telegram com

C 2006 Star-Telegram and wire service sources All Rights Reserved http //www dfw com

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Julie Supan Senior Director, Marketing 71 E Third Ave, 2nd Floorl San Mateo, CAI 94401 juhe@youtube com i B H I H H H I i direct 1 1

My YouTube Video Pick of the Day Underground Robot

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