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

Filing 208

DECLARATION of William M. Hohengarten (Part Four) Ex. 42 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 43, # 2 Exhibit 44, # 3 Exhibit 45, # 4 Exhibit 46, # 5 Exhibit 47, # 6 Exhibit 48, # 7 Exhibit 49, # 8 Exhibit 50, # 9 Exhibit 51 - Part 1, # 10 Exhibit 51 - Part 2, # 11 Exhibit 51 - Part 3, # 12 Exhibit 51 - Part 4, # 13 Exhibit 51 - Part 5, # 14 Exhibit 52, # 15 Exhibit 53, # 16 Exhibit 54, # 17 Exhibit 55, # 18 Exhibit 56, # 19 Exhibit 57, # 20 Exhibit 58, # 21 Exhibit 59, # 22 Exhibit 60, # 23 Exhibit 61, # 24 Exhibit 62, # 25 Exhibit 63, # 26 Exhibit 64, # 27 Exhibit 65, # 28 Exhibit 66, # 29 Exhibit 67, # 30 Exhibit 68, # 31 Exhibit 69, # 32 Exhibit 70, # 33 Exhibit 71, # 34 Exhibit 72, # 35 Exhibit 73, # 36 Exhibit 74, # 37 Exhibit 75, # 38 Exhibit 76, # 39 Exhibit 77, # 40 Exhibit 78, # 41 Exhibit 79, # 42 Exhibit 80, # 43 Exhibit 81, # 44 Exhibit 82, # 45 Exhibit 83, # 46 Exhibit 84, # 47 Exhibit 85, # 48 Exhibit 86, # 49 Exhibit 87, # 50 Exhibit 88, # 51 Exhibit 89, # 52 Exhibit 90, # 53 Exhibit 91, # 54 Exhibit 92, # 55 Exhibit 93, # 56 Exhibit 94, # 57 Exhibit 95, # 58 Exhibit 96, # 59 Exhibit 97, # 60 Exhibit 98, # 61 Exhibit 99, # 62 Exhibit 100, # 63 Exhibit 101, # 64 Exhibit 102, # 65 Exhibit 103, # 66 Exhibit 104)(Kohlmann, Susan)

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To: From: .PatriCk Walke," ..p�waiker@QOO!e,com:i "Joanna $r.��lds. -:joannas@goole,co", 2006-06,28 15:24:42 CST Cc: Bee: Received Date: StJe�t; Fw: y�Utub Sent from my BlackB�;iry Wireless Handheld .-~..f�gina Mes--From: David Euri To: Peter Chane; Jonth.an Rosenberg; SusanWojdck�; ,Jennifer Feik�n;=aanna Shields: David Drummond CD: Elliot Schrage;SherylSandberg Sent Wed JtJ28 07:18:58 2006 Subecl: He: you tube ari Sh�ryl) '(Copying Ellot for Googl�o=ideo, .Nolh�ngisoul of the question toconsider, I think il's clear thaI all of uswanl to do what's best iriCuding our "'urrentcopyright enforceent policy, It's also cle�:r that no one kno ",xactly how the space will evolve, c.. it's ilLL"b easier to look back and "'o�nt out course corrections we should have made. That said, here are � few thin(jsto consider ss we cor:rlnu 10 d�SC"'ur copyright enforcement Isse: 1 . NBC has expl�cilly stated to uS that they recognize andapprec�ale "'ur proactive copyright enforcem�nt policy ard want to doalarg8, ::rategic deal with us, inclu��ngbut not l�mited tb video. Tf�s 1s a ::eflection of their View lhal we're a b�g C�mpany with reSOIJrces that ::ges �t." Tim A. and I are pl�rting a meeting wilh vanQU senior execs ",rom NBC to frame what th�.$ might !�okiike. 2. inthe�rminds they are belngvery pragmatic and co-opting Yo�Tubeas=promolional platform, creating the equivalent of our Partner pages =ith $Ome one-time promotions, NBC has received assurances that YouTwbe ",il increase the level of scriiny to identify Hleg uploadsgQ�ri =oiward, Le., the direction is to lncease the level of poHcing, not =9Crease and YouTube recognizes lhis. . . 3. W eshuldn't lose sight of tr,e fact that desite some fantastic ",~'welopment$ lately to improve our prodUGtand Ul, YouTube has been a=eader in tramc generation because copyright enforcement We'relosing the of rrstools and functionlity, not=ust its loose continue 10 unless traffc battle =0 them and wil we GOnt�nueto improve our prClt ""xpr�ence ar �.caire as much gcod content as possble (andnof just :;remium C�ntent). 4. Cri;:irr;; our pOlicy t,as impiicaHons for other parts of C'lr business: =) th Print suit: where our interetation and enforcement of rights ::ciated with copyrigrit isin queion; b) outside the US: where t!l=MCA doesn't appy $ndconterr owners �lre even more vocferous about=fOtecing their c�n�eri; and c) to Advertising and Syndication: whatwe "'hink is THE; OLJs�nessopportunity for GV This 1s not possble to bu�ld =�thout the support are ",ost senstive abb copyrihl enforcement, many of whom parles who of premium content owners, the veiy our serch product and want us:;o refrain from monetizing "blame" uslor =dent�fyir.-g sites w�thllegaJ content in site.s that traffc in megal �JpJoC\�s, just because 5, Things are sHU Viy early. The!arge l'ediacompaniesare very, o:eryslow and reiatively disorganizad, But, they won't they haven't =eted on lliisdoesn't mean last GPS, is C!iar.ging a policy "'0 Increas traffic knowing bBforehan that we'U profi from iIegal==wnioads how we want to conduct ourbus�ness? Is this Googiey? 6. Lastly, as SGrgey pointed ouLal our My opinion is that we should continue to work aggressiveiy on improving ",eatures and functionality; double down Highly Confidential Gooooi.-OQS63430 ~~.. ...._. - ._' on .efforts to get the most =ppealing content poible f�r our ads get and syndication trials; and push ""ike crazy to content owners to clarlfytheir positions on this ""SS. 1 think ultimately though we won't get perfect clarity frcm the ",ont�lt ownrs, so wh�t we'll have to decde is whether the presumed ~nef�s to traffic trom� pOlicy chang outweigh the reuning risks =rcosts. AS for me, I'm opn to chnging our policy. I'm �us notsie NOW is ",11(; time to dolt. Without minimizing YotJTUbe's achievements, I'd '=Ther focuS on in�re�sing our own efforts to win now al�lnthe 10hger ::rm. I'm interested tQ hear what others think. Apologies for th�length of thiS emaiL. As Mark Twain said, � would ",ave wiitten you a shOrter response if I had moret�me. Dave On 6/28106, Peter Chane -:peterch@gooQle.com;,wrote: I think you am figrit about the lesn altt�)hin our most recent ",�scusson about our content acceptance poHcy the seiment was against ::aking a poHcy chane for Googie Video. i thlr.k jhat's a mistake but � ::nk I'm in the minor�ty. I think Youube �sPlaying their hand brllantly byuS�ng th�r =raffic Bnd thedmca to their advantage. The NBC deal validated them. '" worry th$t they are setting themselves up to be much morelh$n a site ;; watch stupid viral videos. Youtube is not capture these queries. just a GoogleVideo competior; they JNa.I to a�gregale =edi.8 iraff�e to their site and And they are::velbpng their own ad system to montize vides which appear on mC'.J� ",�tes across the web. Thy area searchs�te witha'l Ad\vordsif\�SBris=�Ogram gettngslarted. P. On 6127/06, Jonathan Rosenberg other. seems to me (ike the dynmic here worked oiit the oppsite of what w8",ad beentemng each material as this would allerte noc from ::$. Meanwhile., we lost usrs because YouTi.e had the content ilegally. ",ext, NBC; worked they have a deaL Shouldii't the with them more aggressively than us because they saw ::he v�ralnalure and now lessn here be "'0 play faster Elndlooser and be aggresve until either a court says =00" or a deal gets struck. L don't think there can be an in =�tween...and we were 011 the wrOhg end. We were cautiPirt ourselvesJo avoid the =reewheelirig usrs posting NBC jr NBC Taps Popularity Of Online Video S�te By Sara KehadElni Goo Washington Po::;t Staff Writer Wednesdy, June 28,2006; 001 Online video company You Tube Inc. said yeslerday that �tw�li)rOmote=8C's fall television lineup and sponsr acoriest related toa popular =�twork show, s�gnal�ng � wave of marriages beLween old- H.'ghlyCon�i.d�ntiaJ G(OOOl~OOSG343i media firms and ::Iedgling video Web sites. The deal follows $f amunement by Warner Bros. on Monday that 20 fims an TV episoes throu GU08, ar:i1her =nHne vide it ",�il sell downloads of site, The panners.'�pssek tO$Olv$ 1wo problerrs forthe ::nterta�rienl indtry: OI�-i�:dia, cornpar�es ne popuar Internet ::hannels to fight �iedining TV and movie-tl1ler viewersllp. .and =nlerrt lide start -ups need a revenL'0s1ream to capitalize on their ::x�lodlng popUlarrty. Since tlie beginn�ng of the year, amateur video clips posted to th!3 ;:nt8rnet have becorrea phenomeno, making on�nevideosites some ",fthe mbst-v�slled placeSQ(the Internt.. YouTube.com says�t attraets::O m1l!ion unique visitors a month,upfror 9 mHl�on In Apnl, bU it ;:nd many competitors are hue privalely fundedari are$l�lsearching for ,=leadyreveriue, For You'fube, which l-is$11 miUion invGnture C$lal fundlngand",�llects most of its revenue by sellngbanri$r acts, the N13C deal �s'~a ::ey mileslone in our copany's historf, "Said chief executIve Chad. =urley. "It's a clear proof point that we're building a viable.=ong-teim busness, and it's shng there's common ground between ~raditional and new meiia. ' YouTub attracted attenion n~s yeador t;pr�ading a popular online=ide that was ilegally p!ucked from NBC's .Saturday Night Uve" ::rcgram. Th clip depicted comedians rappng in a skit called "Lazy ::uriay' and as it spread, it r:lped thods of Internet usrs team =ht th�y cou!dshre vlde as easily as executives demanded that YouTube remove the video ::rom its site. Bui then, fact that i"LazySunday"� virally ",ideo on its own Web site. liThe for,varding an e-mait. At the time, NBC seeing its populanty, NBC posted the same sp�$d ""ike wil�jfire, that clearly told us something- that we COL1ld maybe =upl�cate that and creat� ptomos that peop�ecoiJld shr� The mecharJ$rn =as th�re/ said John MiI�r, chief marketing officer for NBCUrjlversal ",elevision Grou. Now, r:.e saJd. .we wan to fully embrace the viral :;c!ivity thatYouTube embraces,. Flncncal deta~sof the Y�lTUb-NBG deal were not discosed. YouTube =grood tosel up an NBC page on its Web s�teon which viewers can watch ""orrmercJals and other features, such as interiews with actor$, for six =rograms on NBC's fa!! l�neup and other programs including "Saturday =lght Live' and 'Th ",romote YouTiibe on TV with a�ontest that encourages air ::he winner's video in Tonight Show with Jay Leno," In exchange, NBG will viewers to sumit ::unny y.�deosof their office environments to YouTube_com. NBC will cbnj�rilion with the sitcom xTheOff�ce. . To make the deal happn, however, YotiTubenas l1o to rein in some of ::t8 freewheeling, Wild-West-like appeaL The site use to take a::ommunily poficing approach unr which it would consider removing only ",ideo that users reprted as inappropriate or as a possble copyright ::iolation. Now, YbuTube said it hasset up online featureslhat wi! ::How N8C to patrol YouTwb's entire Website for possble infringement =f NBC's copyr�ghle� material and enable YoiJTube to quickly remove it. "This really shws hOYJ proactive we're be�rig" said. Th�same tools wil be avaiiable to ",ther usrs, he said. . about protecting ::opylighted materiaL, Hurley YouTube said the NBCdeal�s the first of severa! reationships wilh::edia cQrrpan�E:sthat it expeels to announce in th coming monlhs. Media =xecutiV�S said such deals are low-cost opportunties t6 promotions and sales. For Wamer ",ros.) the arranement exrimeni with ",ays to t"p Internt audiences lor and TV shQwsin addition to a more with Gubais an exp�rimenl�n using an =lterrat�veoutiet forsemng movies ",stablislied online vehicle SlJChps Apple Computer Inc. ",h\tP:I!WWN.google.com/url?sa",D&q=http%3A %2F%2Ffinac�al. washitlQtonpct,com~/,,2Fcustom%2fwpost%2 Fhtml--cn.aspYo3Fdispri;:V'/';3Dbuslness"lo26mwpage%3Dqc::%26Symb%3DP...APL%26naV'�(3Del;. 's ITunes. .We don't know whals going to work at lhis point. . sald JimW uthdch, =enior vi�epresident of digit�l distribution oi Warner Bros.hQme =ntertainment g,oup. 'ObviolllY, there's consier demand f�r this is, are thosepepie wH!�ng to pay for a ;:igh-quiity oeliveiyoftriat c�r�tenl? We be!iev�l ::ontent. The question so, but we don't know =hat content they're more interesled�ri. . ~ighly Confid�ntial 000001-00563432 Guba LLC S?.Jd its deahvith Warnr 8ros. esisJly reonigiJred i1s",evnue moel, $0 i� is no lOiraH ad-surted, and GLiba seesleS$ ",f its fLlture tie to video cotent gerated from the public, . money: . said 1hmas Mclrorimy, chief exect.itjve of =uoa. .peoplea� use to payirifor fims, While v�deo posted byusers�s compellng, it is not going to pay the ""er, the company sa�. "A kid fa!Hng of a skatebard, ora kid lip-syncing - I don't know ~f it haS legs or endurance,. whic to.us presents a ver dear revenue OpportUl�ty. The chllen for Y ouT ubeis ho to keep the =ommunty hapP and also make @2006 The Wash�riton Post Company Ads byGoole Goo.d News fot Knees Glucosamin Choroitin Sulfate Reserch backed produc w'Nv'�.cOSmincom ..httP;/www.google.comJl1rJ?sa~D&q:=tP..�;..3A%2F%2Fpagead2.gcgjesyriicat..on.com%2r=paged%2Fic!k..!o 3Fsa%30l%26a�%3D8xnteuxq�RNbmFYqQwQKAgal-pU:iGNmP=sgCtbTpnAoAEAEYASG~oFMAA4AFCjy 42CBY gBAaoBEGJ1 C21UZXNzX2FydGljpGWyARZ3d=eud2FzaGluZ3RvbnBvC3QuY29tyA�B2gFXaHROcDovL 3d3dy53YXNQaW 5ndG9ucG9zdG5jb2=vd?AiZHluL2NvbnRlbnQvYXJOaW NsZS8yMDA2LzA2LzI3LOFSMjAwN jA2MjcwMTc1 MF9wZi5=dG 1 sgA1BmALSGBACAQO/26num'%3D1 0/26adwrl"/o .;-drnage01.g�b,:; 30ht ::.:�mage�S.gff:i:; "".;jrrage0�2. gib:i ::%PA %2f%2Fwww.nutrara1(abS.com%2Fkneesbend�ng.htm%26cnert%3()~-washiri",lipost-atticie-sitj $) PelerGhane peterch@goole.com GrO\�p Business Product Manager Googie VkJeo i http://Video.google,com-:htp:f/video.gogle.com/;, OavidEun NY: 212-589-�070 MV: 650"253-1993 H�ghiy CQnf~dent�ai 0000o:-005153433

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