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

Filing 214

DECLARATION of William M. Hohengarten (Part Eight) Ex. 160 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 161, # 2 Exhibit 162, # 3 Exhibit 163, # 4 Exhibit 164, # 5 Exhibit 165, # 6 Errata 166, # 7 Exhibit 167, # 8 Exhibit 168, # 9 Exhibit 169, # 10 Exhibit 170, # 11 Exhibit 171, # 12 Exhibit 172, # 13 Exhibit 173, # 14 Exhibit 174, # 15 Exhibit 175, # 16 Exhibit 176, # 17 Exhibit 177, # 18 Exhibit 178, # 19 Exhibit 179, # 20 Exhibit 180, # 21 Exhibit 181, # 22 Exhibit 182, # 23 Exhibit 183, # 24 Exhibit 184, # 25 Exhibit 185, # 26 Exhibit 186, # 27 Exhibit 187, # 28 Exhibit 188, # 29 Exhibit 189, # 30 Exhibit 190, # 31 Exhibit 191, # 32 Exhibit 192, # 33 Exhibit 193, # 34 Exhibit 194, # 35 Exhibit 195, # 36 Exhibit 196, # 37 Exhibit 197, # 38 Exhibit 198, # 39 Exhibit 199, # 40 Exhibit 200, # 41 Exhibit 201, # 42 Exhibit 202, # 43 Exhibit 203, # 44 Exhibit 204, # 45 Exhibit 205, # 46 Exhibit 206, # 47 Exhibit 207, # 48 Exhibit 208, # 49 Exhibit 209, # 50 Exhibit 210, # 51 Exhibit 211, # 52 Exhibit 212, # 53 Exhibit 213, # 54 Exhibit 214, # 55 Exhibit 215, # 56 Exhibit 216, # 57 Exhibit 217, # 58 Exhibit 218, # 59 Exhibit 219, # 60 Exhibit 220, # 61 Exhibit 221, # 62 Exhibit 222, # 63 Exhibit 223, # 64 Exhibit 224, # 65 Exhibit 225, # 66 Exhibit 226, # 67 Exhibit 227, # 68 Exhibit 228, # 69 Exhibit 229, # 70 Exhibit 230, # 71 Exhibit 231, # 72 Exhibit 232, # 73 Exhibit 233, # 74 Exhibit 234, # 75 Exhibit 235, # 76 Exhibit 236, # 77 Exhibit 237, # 78 Exhibit 238, # 79 Exhibit 239, # 80 Exhibit 240, # 81 Exhibit 241, # 82 Exhibit 242, # 83 Exhibit 243, # 84 Exhibit 244, # 85 Exhibit 245, # 86 Exhibit 246, # 87 Exhibit 247)(Kohlmann, Susan)

Subject:

FW: YouTube Term Sheet

From:
To: Cc:

"Lehman,Nicholas"<U(:/O=VIACOM/OU=MTVUSA/CN=RECIPIENTS/CN=
oNLINYCN=MTVI/CN=LEHMANN> Lehman, Nicholas Date: Tue, 25 Jul 2006 00:55:45 +0000

From: Cahan, Adam
Sent: Monday, July 24, 2006 5:54 PM

To: Patel, Kruti;Witt, Jason; Lehman, Nicholas
Cc: Bakish, Robert

Subject: FW: YouTube Term Sheet

first in fromyoutube. have not even looked over yet, please keep circlesmallfor now before folks start forming
opinions pre-negotiations

From: Chris Maxcy [mailto:[e-mail]]
Sent: Monday, July 24, 2006 11:59 AM To: Cahan, Adam; Bakish, Robert Cc:'zahavah';'Kevin Donahue'

Subject: YouTube Term Sheet
Adam & Bob,

At long last, attached is a preliminary draft of the Term Sheet we've discussed. Please let me knowwhen you are
available Best, Chris to discuss.

Chris Maxcy VP, Business YouTube, Inc. chris~youtube.com
650.685.6402

Development

www.youtube.com
List of attachments:

Vaicom Termsheet

(7 24 06).doe

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CONFIDENTIAL

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Hirrhly Confidential

Viacom/ YouTube ~k'T) Term Sheet

S3'HUCTUKE':

Thisterm sheetsummarizes basictermsandconditions a proposed the of
content licensing agreement between Viacom, Inc. ("Viacom") and

YouTube,Inc, ("YT"). This term sheet is not binding and does not create any rights or obligationsbetween the parties. Any agreementbetweenthe
parties is subject to the execution of definitive documentation.

TEIUCIP: VIACOM
O~LIGATIONS':

Twelve (12) Months (the "Terrn"), commencingon During the Term, Viacom shall provide the following:
(a) Worldwide license to Viacom's domestic & international

catalog of short form videos on a streaming-onlybasis. (b) PeriodicXML feed (weekly or monthly) of the videos it
licenses to YT ("Licensed Videos") & associated metadata,

includingelectronicmetadata updating the rigl~tsdesignations
(e.g. takedowns, new adds, etc...) for the Licensed Videos on the YT Site therein referred to as the "Service").

(c)

Viacomshallbe solelyresponsible obtaining paSring for and all
necessaryrights to the Licensed Contentincluding but not limited to: (i) any third-~party publishingrights, other than any
music public performance rights, required in connection with

the use hereunder of any audio or visual compositions (embodiedin the Licensed Videos on the Service, (ii) any necessaryroyalties to so-called "royalty"participants (e.g. actors, producers,writers, etc.), (iii) any distributionrights, and
(iv) any required union payments. The Parties agree that YT

shall be solely responsiblefor obtai~ingpublic performance licenses in connectionwith YT's use of musical compositions
embodied in the Licensed Videos performed on the Service.

(d)

Viacom shallrep and warrant its ownershipto the Licensed
Videos and indemnify YT for any errors.

(e)

Viacomshallbe responsible sellingadvertising the pages for on
of the Service where users can directly play the Licensed Videos, the'l;Vatch Pages".

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COMPENSATION

Viacom payYTona monthly anamount shall basis equaltothegreater of
(i) fifty percent (50%) of Viacom's gross revenues associatedwith any advertisingor sponsorshipson the Watch Pages and (ii) $0.005 per
exhibition of each Licensed Video on the Service.

Viacom shall provide monthly revenue reporting and paSrmentto YT within thirty (30) days after the end of each month

YTOBLIGATIONS

During the Term, YT shall provide the following:
(a) Hosting & streaming of the Licensed Videos via the Service. Viacom shall retain the right to add or remove Licensed Videos from the Service at any time by updating the metadata
associated with any Licensed Video(s) in the XML feed.

(b)

Go-branding: YT shall co-brand the video player on all Watch
pages of the Service where the Licensed Content is available for

viewing ~ocE;ups to be provided). YT shall also provide Viacom with the following branding elements:

i. YT shall prominently display in connection with the
exhibition of each Licensed Video on the Sen;ice a

company logo of Viacom's choice with an accompanying URL, and

ii. Viacom may also choose a secondary text link to be
displayed in connection with the exhibition of each

Licensed Video. Secondary text links are configurable on a video by video basis and will take users to a site(s) of Viacom' a choosing (e.g. show
website, etc.)

(c)

Reporting: Within thirty (30) days after the end of each month,

YT will render reasonably detailed accountingsshowingthe
number of exhibitions of Licensed Videos on the Service.

Content Claiming: During the Term YT shah de~7elop an
automated system. using fingerprint technology to identify

videos on the Service that contain Viacomcopyrightedmaterial

materialfor use on the Serviceas a Licensed Videohereunder

and enable Viacom. in its discretion, to either (i) license such

YouTube

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or (ii) have YT remove such video from the Service altogether.

CONFIDENTI~L~LITYNeither norViacom disclose anythirdparty(other each YT may to than
party's employees, in their capacity as such) any information regarding the terms and conditions of this term sheet without the prior written consent of
the other

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