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

Filing 215

DECLARATION of Andrew Schapiro Part 4 in Support re: 177 MOTION for Summary Judgment Regarding Applicability of the DMCA and on Plaintiffs' Inducement Claims.. Document filed by Youtube, Inc., Youtube, LLC, Google, Inc.. (Attachments: # 1 Exhibit 161-170 to Schapiro Declaration, # 2 Exhibit 171-177 to Schapiro Declaration, # 3 Exhibit 178 to Schapiro Declaration, # 4 Exhibit 179 Part1 to Schapiro Declaration, # 5 Exhibit 179 Part 2 to Schapiro Declaration, # 6 Exhibit 180-210 to Schapiro Declaration, # 7 Exhibit 211-212 to Schapiro Declaration, # 8 Exhibit 213-215 to Schapiro Declaration)(Schapiro, Andrew)

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SCHAPIRO DECLARATION EXHIBITS CONTINUED Schapiro Exhibit 171 Schapiro Exhibit 172 Schapiro Exhibit 173 Schapiro Exhibit 174 2006 CableFAX 100 CableFAX Page 1 of2 ~s~gl --I I · Tuesday, 2,,2009 Jul ..SENTaAr 9tate 2008 ~V8D REPORT TREND 3. I Still Judy McGrath Want My... CABLE JOBS · · Search for VP Level Cable Jobs SearchforAffiliale Sales Title: Chairlnan/CEO, Mn/ Networks Age:54 ' SearchAll forJobs Medil Search Digital Jobs Employers! Post your Jobs and Search for Candidates Now & Marlteting Jobs Christina Norman Title: President, Age: 43 Mn/ challenge--bringing Whythem? It has been25yearssince"Video Killed Radio The Star,"and MTV's leading ladiesare facing theirgreatest the network into the digital age--with their usual intrepid spirit. Yes, the kids are increasingly nocking to CABLEFAXDATABASE ~Oo YouTube, iTunes and MySpace. But Norman proved her prowess in reinventing a brand to suit its audience with VH1, and she plans no less with MTV's digital assault land that of sister nets mtvU, nTVZ, MTV Espanol). Witness the very cool Overdrive broadband site and Urge, Mn/ and Microsoft's more music-centric answer to ITunes. McGrath also juggles VH1, Nickelodeon, BET and Comedy Central, finding new ways to foster the interactivity that's oxygen to young audiences. The company's new Virtual Laguna Beach online service--where fans can live the experience via digitized avatars--will be followed by virtual clLlbhopping spot VMN and LogoWorld, an online offshoot of its gay and lesbian channel. She's also partnering up to grow. Besides the Microsoff union, McGrath has greenlit purchases of sticky kids critter site Neopets and homegrown-film domain iFilm. We're also jazzed about MTV's recent $175 million purchase of music game-maker Hal~monix. I mean who isn't clamoring for an offshoot of video game Guitar Hero? - CAO VIDEO Judy McCrath Defining career moment: Hawaiian'." "The launch, care and feeding of MTVIs right up there. That, and my nrst contest spot`Devo Goes Person Person Favorite I most (other city: admire in the cable Industry and why: "The employees of MTV Networks, past present and future." than my current boss) I'd most lilte to work for: Bill Gates and Warren Buf~ett Foundation. I~nmy free time, I like to: "Family.Read good fictionand bad magazines. See music. Go on YouTube." New York II~""- e I I"i~i Favorite song:'700 many to mention. Front Dulte Ellington through Neil Young to Nirvana and a new one I really like, The Weepies. " Favorite TV shows not on my network: "Rescue Me." "Weeds" and "Nip/Tuck" Favorite piece of tech: "My Blackberry. Least favorite piece of tech: "My Blackberry. The world would be a better place If: 7on Stewalt and Stephen Colbert were REAL news, the genocide Darfur... if everyone thiscountry in and in participated the voting in pr-ocess it reallymattered." like Click here to return to the 2006 CFAX 100 List not FAKE news.., if we stopped More Videoss CABLE SHOW DATABASE Update your Show Listing u Search the Database x CALENDAR Aug 13 CableFAX Webinar:... Aug 18 CableFAX Onsite... Sep 16 CableFAX Program... Sep 23-25 WICT Executive... I ~ DcHi~Si~i~ Nov 16-18 WICT BMLI Alumnae... ~nl~k~ http:liwww.cable3 100_03 .html View Entire Calendar, 712812009 Schapiro Exhibit 175 Schapiro Exhibit 176 Schapiro Exhibit 177 Print The Man Who Could Kill YouTube Page 1 of4 U(H~ ~L~N. I~ CliCk Priltt tO 1 The Bob Tur probably ·Ili~h~ Close Nan \Nho Could Kill YouTube (google) to do what anothir giant (Viacom) is the little guy who is suing never will -- shut YouTube Belloni one giant down By: Matthew A single afternoon bottle sun. broke Then the calm, shattering another. in the lateA few men another...and ~dt~j~ walked Tom's into Liquor walked quic~er and out than would be possible if they'd paid. A family followed, tossing groceries into the intersection of Florence and Normandie in the heart of South Central Los Angeles. Bob Tur, a pilot and photojournalist, hovered above the unfolding chaos in his helicopter, along with his copilot, his camerawoman wife, his lawyer, and a 9mm semiautomatic the details pistol. Fifteen years later, he still recalls with the precision of a war of the scene memory. There was Larry Tarvin, who was pulled from his truck and kicked in the ribs, shoulder, and face. That's taking when the shots started. Tur's'chopper hits as the throng below pummeled began another trucker, Reginald Denny, with a cement block, a tire iron, and a fire extinguisher. Tur knew this was coming, he says, having spent weeks in advance of the Rodney King verdict interviewing gangbangers, church leaders, whomever, asking what would happen if the jury acquitted four white cops. The Grips told Tur they'd try to kill as many white people as possible. So when the call came at 3:15 p.m. on April 29, 1992, Tur, whose fledgling news-video company was pioneering helicopter coverage of breaking events, knew where to go. He arrived on the scene before anyone else and recorded many of the images people now associate with the L.A. riots. Over the years, he estimates, the Denny tape has generated about $5 million in licensing fees. But Tur has spent almost an equal amount filing lawsuits to protect his content. All of which led to the day last spring when he happened upon an article in The Wall Street~ournal about an upstart video-sharing Website whose users were uploading clips of dogs skateboarding and grandmothers belching and, oh yeah, copyrighted news footage. Tur logged on and, after two clicks, watched his Denny video. A few weeks later, like a small bottle tossed before the mob of big entertainment companies like Viacom began their battle for control of digital media, Tur became the first person to sue YouTube for copyright infringement. Tur wants YouTube shuttered until its parent company, Google, can guarantee his videos and other copyrighted content won't reappear after being taken down. And even if there's a filtering technology out there that really works (despite Google's April announcement of such a technology, Tur is skeptical), he wants a court to say the law doesn't shield YouTube-like services, so he's protected from whatever site becomes the next big thing. Tur understands detainee abuse, the promotional why people love YouTube, a democratic clearinghouse of everything from family reunions to and knows that most videos uploaded are actually owned by their poster. He also recognizes value and potential revenue stream from a site visited by hundreds of thousands of people ht~p:~www.esquire. comlprint-thisNoutube0707 11/9/2009 Print The Man Who Could Kill YouTube Page 2 of4 each day. But, Tur says, unlike Viacom and other big media companies, his case is about principle, not profit - a claim that would be more suspect if it weren't for his history of fighting similar cases up to precedentsetting courts. He sees his suit as a backlash against Web 2.0 new-media demagoguery -- a check on the Shawn Fannings, the Toms from MySpace, and the Chad Hurleys and Steve Chens, who have built empires, he claims, not by creating but by figuring out how to redistribute content online. Which is why Bob Tur just may shape the future of digital media. "1 sued these guys when they had no money, no business plan, and I had nothing to gain but keeping my videos off their site," Tur says over lunch near his Santa Monica office, where he's finishing a new police-chase show for MSNBC. He is trim, boyish, and fidgety, with neatly cropped hair, wire-rim glasses, and a corduroyjacket-and-jeans combo that's more Hollywood than necessary for a guy who spends most of his days in an editing bay. Tur narrates many of his own live news events -- Malibu brushfires and bank heists and eternally long police chases -- with a kind of nervous excitement that keeps viewers glued to their TVs. He shows the same enthussassn talking about copyright'. "When I saw that Google bought YouTube for $1.65 billion, I was dumbfounded! Whywould Google get into bed with thieves? They've built a huge audience on the backs of copyright holders -- and then they say I have to monitor them? Someone has to stand up against this piracy. The U.S. Constitution is clear in its desire to protect "authors and inventors" -- a premise that has enabled the American entertainment and technology industries to create about $5 trillion worth of the country's largest export: intellectual property. But the same body of copyright law that encouraged Sony to spend $270 million making Spider-Man 3 and that will require, until 2030, that a royalty be paid every time someone publicly sings Mildred and Patty Hill's "Happy Birthday to You" is now under unprecedented attack. At least it is if you believe Bob Tur and content-producing companies like Viacom, which sparked a media frenzy when it announced its own massive lawsuit against YouTube-Google in March. Tur, meanwhile, has received almost no press. Don't let that fool you. Viacom says it's willing and more than able to spend years in litigation on its dramaticsounding billion-dollar suit, but the reality is, it doesn't want to. Viacom's case is about leverage -- about negotiating a little more money every time someone on YouTube watches a clip of 3ason dissing L.C. on The Hills (Mn/), ~on Stewart kvetching on The Daily Show (Comedy Central), the fart mask in ~ackass: Number Two (Paramount), or content from any other Viacom property. And it's certainly not alone in this desire. An awkward mating dance is currently sweeping Hollywood, as traditional entertainment companies desperate to go where the cool kids hang out court heavily trafficked sites like YouTube and News Corp's MySpace. Hell, even Viacom's sister company, CBS, has a deal with YouTube. Both Viacom and Google know that litigating all the way and answering the question of whether services like YouTube are actually legal could jeopardize revenue for both companies. "If I believed Viacom would take the case far enough to set a precedent that owners, I would certainly step out of the wajl," says Tur. "But I don't believe might benefit small copyright they're serious. They want me out so they have more time to negotiate. despicable. I think the use of litigation to cut yourself better deals is Tur thrives on risk. He's been a medic, a licensed private investigator, a rescue pilot, and Carrie Fisher's boyfriend. At forty-sev'en, he's had five angioplasties, three technical heart attacks, and a triple bypass, and he still does triathlons. He raises his voice and gesticulates wildly when making a point and uses we as if speaking for a community when discussing his case. ("When we're done, there might not be a YouTube worth visiting.... If we lose, Google will put us out of business.") He doesn't think much of content owners who aren't fighting to make video-sharing sites vet every clip posted. Tur says new-media agitator and Dallas Mavericks owner Mark Cuban has wimped out by blogging that YouTube steals content and then refusing to sue when films from his movie company are uploaded. "I don't need to spend time trying to fight a behemoth like Google," says Cuban, who has been following Tur's case closely. "Their arrogance makes Microsoft look like a bunch of choirboys. They can afford to spend more money on lawyers than I can on NEA fines. In 1982, the late MPAA head ~ack Valenti famously before home video became the largest profit source compared for studios. the new VCR to the Boston Strangler Yet even after the content industry -- years banded together to win a Supreme Court victory that effectively eviscerated Napster and its clones, the music industry is still hurting, due inpart to rampant piracy. Would Bob Tur have risked his life and sustained about http:~www. esquire. comlprint-thisNoutube0707 11/9/2009 Print The Man Who Could Kill YouTube Page 3 of4 $200,000 in damage to his chopper if he'd known his riot footage would be available free on the Internet a few hours later? He says no, and that the federal law enacted to balance innovation with content protection -the ONvellian-sounding Digital Millennium Copyright Act -- has become a farce. The DMCA basically says that an "online service provider" is not responsible for the conduct of its users as long as it takes down content when asked, isn't aware of or actively encouraging illegal content, and doesn't earn money "directly attributable" to a violation. But the law was enacted back in 1998, way before the first links from last night's Colbert Report began appearing in your in-box. Is-YouTube legal? The truth is, nobody knows for sure because no court has ruled on whether the DMCA even appliks to the site, let alone whether it's protected. Tur intends to change that, and he's made his career backing up his will with his money. In the '80s, when he decided he wanted to fly helicopters, he paid a fire-department training squad to give him the thousand hours of training he needed. He dumped his life savings into a $2 million chopper. When he heard police considered O.3. Simpson the prime suspect in the murders of Nicole Brown Simpson and Ronald Goldman, Tur believed 0.3. would go to his ex-wife's grave site and kill himself. He flew toward the cemetery but instead found O.3.'s white Bronco heading north on the freeway; he was alone over Simpson for twenty-five minutes. The footage aired live on CBS, but Tur maintained ownership. His company, Los Angeles News Service, has made millions from 0. 3. alone. Even years in an industry as lawsuit happy bringing copyright-infringement as entertainment, cases against Tur is an extraordinarily litigious man. He has devoted heavyweights like the Walt Disney Co., CBS, and the Reuters companies news service up to influential don't," says 3ohn Palfrey, appellate a professor courts. "You often see the little guy push cases in ways the big law at Harvard. "Tur doesn't have much interest of Internet in the business concerns, so he's more likely to bring one of these cases to fruition. Tur's suit will likely hinge on how the DMCA is interpreted, so he's become an expert on the details. He claims YouTube has placed ads directly adjacent his videos, therefore profiting directly from them. YouTube has since stopped doing this, which Tur believes proves it knew it was wrong. But Tur insists YouTube is still breaking the law by selling any advertising anywhere on a site that features copyrighted material -- a fact he says YouTube's top guys must know. "The law talks about red-flag knowledge," says Cuban, no stranger to the DMCA. "If you know there is infringement and it's obvious to all involved, that's red-flag knowledge. Want to bet that if you look at the search history of Sergey and Larry, they have watched infringing videos? Is there anyone that doesn't know they can find stolenvideos on YouTube? That's going to be a red flag to any judge." Tur says Viacom's media going he has been approached top lawyer, says Tur's is simply it before that better trial. "I'm would by Viacom to step aside so the big boys can duke case is strong but Viacom's is stronger: It's alleging equipped not sure settle to subpoena the needed documents point," it out. Michael Fricklas, hundreds of thousands testimony it will of infringements while Tur is basically complaining about a few'thousand views of Denny and 0.3. Plus, a big company to know and top-level says already Fricklas, occurred require to win the case. If YouTube employees have posted copyrighted to get to that damages clips, as has been rumored, for as long as it takes. Viacom is But he also an Tur can afford offered who maintains and either that Viacom is willing to deploy every legal weapon acknowledges effective filter in its formidable arsenal for what's Viacom if Google fee. or a reasonable license A possible sign that Google is also taking Tur's case pretty seriously is its refusal to speak about it -- though Michael Kwun, the Google lawyer spearheading both the Viacom and Tur defenses, has commented fairly freely on the Viacom suit. In The Washington Post, Kwun alleged the suit is "an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own. YouTubealso has plenty of defenders who aren't on its payroll. "What universe do [Tur and Viacom] live in where they think they don't have to police their copyrights? court," says Gory Doctorow, the digital-rights advocate, J can't wait to see these bozos get slaughtered of the popular Being Being blog, in coeditor and science- fiction author. "Copyright holders have an incredible gift under the DMCA. They can force YouTube to take down videos without the expense of going to a judge." Indeed, the DMCA arguably offers content owners the best of both worlds because it lets them decide on a case-by-case basis whether the promotional value of letting "Dick in a Box" bounce around the Internet is better for them than clamping down on it. Doctorow 11/9/2009 Print The Man Who Could Kill YouTube · Page 4 of4 scoffs whenit's suggested contentproducers.may deterredby placing expensive that be an burden policing of a massive Web community like YouTube on a company like Viacom (which maintains that it spends $100,000 per month sending YouTube takedown letters) or on an individual like Tur. "Look around. It's laughable to say the Internet discourages creativity. If these guys can't figure out a way to make money online, they should find another business.The Constitution doesn't guarantee Viacom long-term profitability. Tur realizes his case, which could drag on for years, is probably the biggest risk of his career. But he'll keep pressing, he says, because he doesn't trust anyone else -- not Viacom or the plaintiffs in a separate classaction suit filed in May -- to step up, and· it won't be long before Web video merges with traditional N. "If we lose, what's to stop Google from setting up pay-per-view services or even exhibition halls for Web video -- and they could let users show whatever they want to and just take it down the next day after they get a letter. Tur is getting riled up again. He steadies himself. "I'm going broke," he says. "I've mortgaged of fighting and wanted more security. my kids' futures for these cases. died from the stress I've lost my wife -- she got tired incentive must be to I've almost of it. But the create. And if someone like me doesn't stand up for content creators, we sure as hell can't count on the big corporations to do it for us. Tur apologizes, but he's got to get back to his editing bay. He's been working night and day finishing the MSNBC show. The network has bought only one episode, he explains, and it better be good so they'll buy more. And at least for now, that's how Bob Tur makes his living. Find this article at: http :// res/Youtube0707 I~aCliCk Iprim trO ~ Close 11/9/2009

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