Viacom International, Inc. et al v. Youtube, Inc. et al
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)
.PatriCk Walke," ..pìwaiker@QOO!e,com:i "Joanna $r.ìèlds. -:joannas@goole,co",
2006-06,28 15:24:42 CST
Cc: Bee: Received Date:
Sent from my BlackB¡;iry Wireless
.-~..fÍgina Mes--From: David Euri To: Peter Chane; Jonth.an Rosenberg; SusanWojdckí; ,Jennifer Feikín;=aanna Shields: David Drummond CD: Elliot Schrage;SherylSandberg
Sent Wed JtJ28 07:18:58 2006
Subecl: He: you tube
for Googléo=ideo, .Nolhíngisoul of the question toconsider, I think il's clear thaI all of uswanl to do what's best iriCuding our "'urrentcopyright enforceent policy, It's also cle¡:r that no one kno ",xactly how the space will
evolve, c.. it's ilLL"b easier to look back and "'oînt out course corrections
we should have made.
That said, here are à few thin(jsto consider ss we cor:rlnu 10 dìSC"'ur copyright enforcement Isse:
1 . NBC has explícilly stated to uS that they recognize andapprecÎale "'ur proactive copyright enforcemènt policy ard want to doalarg8, ::rategic deal with us, incluáíngbut not lìmited tb video. Tfìs 1s a ::eflection of their View lhal we're a bíg Cùmpany with reSOIJrces that ::ges ít." Tim A. and I are plàrting a meeting wilh vanQU senior execs ",rom NBC to frame what thî.$ might !öokiike.
2. intheírminds they are belngvery pragmatic and co-opting YoùTubeas=promolional platform, creating the
equivalent of our Partner pages =ith $Ome one-time promotions, NBC has received assurances
",il increase the level of scriiny to identify Hleg uploadsgQìri =oiward, Le., the direction is to lncease the level
of poHcing, not =9Crease and YouTube recognizes lhis. . .
3. W eshuldn't lose sight of tr,e fact that desite some fantastic ",~'welopment$ 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 GOntìnueto improve
our prClt ""xpríence ar è.caire as much gcod content as possble (andnof just :;remium Cùntent).
4. Cri;:irr;; our pOlicy t,as impiicaHons for other parts of C'lr business: =) th Print suit: where our
and enforcement of rights ::ciated with copyrigrit isin queion; b) outside the US: where t!l=MCA doesn't
appy $ndconterr owners Èlre even more vocferous about=fOtecing their cönìeri; and c) to Advertising and Syndication: whatwe "'hink is THE; OLJsìnessopportunity for GV This 1s not possble to buìld =íthout 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 =dentìfyir.-g sites wíthllegaJ content in
site.s that traffc in megal ÌJpJoC\òs,
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 ourbusíness? 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
~~.. ...._. - ._'
on .efforts to get the most =ppealing content poible før 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 ",ontßlt ownrs, so whêt we'll have to decde is whether the presumed ~nefìs to traffic tromå pOlicy
chang outweigh the reuning risks =rcosts.
AS for me, I'm opn to chnging our policy. I'm ìus notsie NOW is ",11(; time to dolt. Without minimizing
YotJTUbe's achievements, I'd '=Ther focuS on inçreàsing our own efforts to win now alîlnthe
10hger ::rm. I'm
interested tQ hear what others think.
Apologies for thélength of thiS emaiL. As Mark Twain said, ¡ would ",ave wiitten you a shOrter response if I had moretìme.
On 6/28106, Peter Chane -:peterch@gooQle.com;,wrote:
I think you am figrit about the lesn alttÇ)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 minorìty.
I think Youube ¡sPlaying their hand brllantly byuSíng thér =raffic Bnd thedmca to their advantage.
The NBC deal validated them. '" worry th$t they are setting themselves up to be much morelh$n a
watch stupid viral videos.
Youtube is not capture these queries.
just a GoogleVideo competior; they JNa.I to aøgregale =edi.8 iraffìe to their site and
And they are::velbpng their own ad system to montize vides which appear on mC'.J¥
",¡tes across the web. Thy area searchsìte witha'l Ad\vordsif\ôSBris=ìOgram gettngslarted.
On 6127/06, Jonathan Rosenberg
seems to me (ike the dynmic here worked oiit the oppsite of what w8",ad beentemng each material as this would allerte noc from ::$. 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 vìralnalure 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 =ßtween...and we were 011 the wrOhg end.
We were cautiPirt ourselvesJo avoid the =reewheelirig usrs posting NBC
Popularity Of Online Video Sìte
By Sara KehadElni Goo Washington Po::;t Staff Writer
Wednesdy, June 28,2006; 001
Online video company You
Tube Inc. said yeslerday that ìtwìli)rOmote=8C's fall television
lineup and sponsr acoriest related toa popular =ètwork show, sígnalìng å wave of marriages beLween old-
media firms and ::Iedgling video Web sites.
The deal follows $f amunement by Warner Bros. on Monday that 20 fims an TV episoes throu GU08, ar:i1her =nHne vide
it ",¡il sell downloads of
site, The panners.'îpssek tO$Olv$ 1wo
problerrs forthe ::ntertaìrienl indtry: OIò-i¥:dia, cornparùes ne popuar Internet ::hannels to fight çiedining
TV and movie-tl1ler viewersllp. .and =nlerrt lide start -ups need a revenL'0s1ream to capitalize on their
Since tlie beginníng of the year, amateur video clips posted to th!3 ;:nt8rnet have becorrea phenomeno, making on¡nevideosites some ",fthe mbst-vìslled placeSQ(the Internt.. YouTube.com saysìt attraets::O m1l!ion unique visitors a month,upfror 9 mHlìon In Apnl, bU it ;:nd many competitors are
privalely fundedari are$lìlsearching for ,=leadyreveriue,
For You'fube, which l-is$11 miUion invGnture C$lal fundlngand",öllects most of its revenue
by sellngbanri$r acts, the N13C deal ìs'~a ::ey mileslone in our
copany's historf, "Said chief executIve Chad. =urley. "It's a clear proof point that we're building a viable.=ong-teim busness, and it's shng there's common ground between ~raditional and new meiia. '
YouTub attracted attenion n~s yeador t;prèading a popular online=ide that was ilegally p!ucked from NBC's .Saturday Night Uve" ::rcgram. Th clip depicted comedians rappng in a skit called "Lazy
::uriay' and as it spread,
it r:lped thods of Internet usrs team =ht thèy cou!dshre vlde as easily as
executives demanded that YouTube remove the video ::rom its site. Bui then, fact that i"LazySunday"¡ virally ",ideo on its own Web site. liThe
for,varding an e-mait.
At the time, NBC seeing its populanty, NBC posted the same
spè$d ""ike wilçjfire, that clearly told us something- that we COL1ld maybe =uplícate that and creatè ptomos that peopìecoiJld shrä The mecharJ$rn =as thére/ said John MiIßr, 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 YÖlTUb-NBG deal were not discosed. YouTube =grood tosel up
NBC page on its Web sìteon which viewers can watch ""orrmercJals and other features, such as interiews with
six =rograms on NBC's fa!! lìneup and other programs including "Saturday =lght Live' and 'Th
",romote YouTiibe on TV with açontest that encourages air ::he winner's video in
Tonight Show with Jay Leno," In exchange, NBG will
viewers to sumit ::unny y.ìdeosof their office environments to YouTube_com. NBC will
cbnj¡rilion with the sitcom xTheOffìce. .
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 copyrìghleç material and enable YoiJTube to quickly remove it.
"This really shws hOYJ proactive we're beìrig"
said. Thêsame tools wil be avaiiable to ",ther usrs,
he said. .
about protecting ::opylighted materiaL, Hurley
YouTube said the NBCdealìs the first of
severa! reationships wilh::edia cQrrpanìE:sthat it
expeels to announce in th coming monlhs. Media =xecutiVèS 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 expßrimenlìn using an =lterratíveoutiet forsemng movies ",stablislied online vehicle SlJChps Apple Computer Inc. ",h\tP:I!WWN.google.com/url?sa",D&q=http%3A %2F%2Ffinacìal. 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 viçepresident of digitàl distribution oi Warner Bros.hQme =ntertainment g,oup. 'ObviolllY, there's consier demand fòr this is, are thosepepie wH!íng to pay for a ;:igh-quiity oeliveiyoftriat còrìtenl? We be!ievËl ::ontent. The question
so, but we don't know =hat content they're more interesledìri. .
Guba LLC S?.Jd its deahvith Warnr 8ros. esisJly reonigiJred i1s",evnue moel, $0 iì is
no lOiraH ad-surted, and GLiba seesleS$ ",f its fLlture tie to video cotent gerated from the public,
. money: .
said 1hmas Mclrorimy, chief exect.itjve of =uoa. .peopleaæ use to payirifor fims,
While vídeo posted byusersìs compellng, it is not going to pay the ""er, the company saò.
"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
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