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

Filing 225

DECLARATION of William M. Hohengarten (Part Thirteen) Ex. 353 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 354, # 2 Exhibit 355, # 3 Exhibit 356, # 4 Exhibit 357, # 5 Exhibit 358, # 6 Exhibit 359, # 7 Exhibit 360, # 8 Exhibit 361, # 9 Exhibit 362, # 10 Exhibit 363, # 11 Exhibit 364, # 12 Exhibit 365, # 13 Exhibit 366, # 14 Exhibit 367, # 15 Exhibit 368, # 16 Exhibit 369, # 17 Exhibit 370, # 18 Exhibit 371, # 19 Exhibit 372, # 20 Exhibit 373, # 21 Exhibit 374, # 22 Exhibit 375, # 23 Exhibit 376, # 24 Exhibit 377, # 25 Exhibit 378, # 26 Exhibit 379, # 27 Exhibit 380, # 28 Exhibit 381, # 29 Exhibit 382, # 30 Exhibit 383, # 31 Exhibit 384, # 32 Exhibit 385, # 33 Exhibit 386, # 34 Exhibit 387, # 35 Exhibit 388)(Kohlmann, Susan)

To: "Fricklas, Michael" -:[e-mail],., "[e-mail]" -:rick. [e-mail]::

From: "Kent Walker"

Cc: Bec: Received Daie:

2007-02-1704:12:10 CST

Subject
Hey guys--

Getting Back re YouTube Content Issues

Sorry ihis is so late -- it's been a busy week/day, bUl wanted 10 get you something before the week was oUl. Thanks very much for your recent letiers

re YouTube and your copyrighled works. I wanted to share our Ihoughls on the legal issues raised by your leiters, address your desriplion of several
violations of YouTube's policy against copyrighl infringement, and respond to your interesi in furthering our discussion of automaled tools and other issues. (As we've discussd, i appreciate your continued consideralion in

keeping our discusion confidenlial.) Lei me start with the legal issues:
Specification of Polenlially Infringing Items. Because this question has come up several times, it's probably useful to nole at the OUlset that copyright owners can't indiscriminately take down items merely by providing a list of items that may be infringed. Under the safe harbor of the Digital Millennium Copyright Act (17 U.S.C. Section 512(c)), copyright owners must provide speific identification of any infringing items and their location, not merely a 'representative list".
Among other requirements, 17 U.S.c. Section 512(C)(iil) says that a DMCA takedown notice must include, 'Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a

representativelist of such works at that site." Note
that this section applies to the copyrighted works that you own, not potentially infringing works. The very next setion (Section 512(c)(iii)) deals wilh potentially infringing works -- a copyrighl owner must also provide a service provider with "(iJdentification of the maleriallhat is claimed to be infringing or to be Ihe subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient 10 permit Ihe service provider to locate the

malerial'.
In other words. identification of what has been infringed can be accomplished with a 'representative list" of the works infringed, but Ihere is no parallel provision for ideniification of "the material that is claimed

to be infringing." Congress specifically stated that a representative list
of infringed works suffices; its decision not to state specifically that a representative list of infringing works shows its intent to require that a DMCA nolice identify the location of infringing materiallhat the copyright owner wants a service provider to remove.

Financial Benefit. Secion 512(c)(1 )(B) provides Ihai, in order to take

advantage of the 512( c) safe harbor, a service provider cannot 'reæive a
financial benefit directly altribUlable to the infringing activity, in a case in which the service provider has the right and ability to control such activity." The first half of Ihis clause requires a financial benefit "directly

attributable to the infringing activity." The legislative history notes
that 'where the infringer makes the same kind of payment as non-infringing

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users of the provider's service,' Ihat is not a financial benefit "directly attribUlable to the infringing activity." And Congress made clear that service providers offering a general-purpose plalform can directly receive payment from an infringer and still not be deemed to have received "a financial benefit directly attribUlable to the infringing activity." The legislative history allows service providers to receive set-up fees, periodic payments, and traffc fees for hosting content that may include infringing materiaL. YouTube does not receive any sort of financial benefit due to infringing content that is different in kind from the any financial benefit it receives due to non-infringing content.

Right & Abilty to Control. Under the DMCA, even a financial benefit
directly altributable to infringing conduct is not necessrily disqualifying unless a service provider has the "righl and abiliy to control" the infringing activity. Just the existence of content on YouTube's system,

with YouTube being capable of removing, it is not enough, since that
situation is Irue of every service provider am would render the words surplusage. So a number of courts have simply refused 10 interpret the 'right and ability to control" in section 512(c)(1 )(B) that broadly. Reflecting Ihe reasonableness standard embodied in the DMCA's allocation of responsibilities between copyrighl owners and service providers, Ihe words are better read as saying that a service provider has to have both Ihe legal right and the reasonable ability to control content.
Repeat Infringer Policy. Under Section 512(i)(1 )(A) of the DMCA, in order to rely on the 512(c) safe harbor, a service provider must have "adopted am reasonably implemented, and informl) subscribers and account holders of the service provider's system or nelwork of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers." YouTube's "three slrikes" policy meets this test by banning users after YouTube receives a third infringement notice regarding a user, regardless of whether a court ultimately finds that the posted content was actually infringing. (We currently deem all URL's processed within any two-hour period to be part of the same 'notice.") This policy actually goes beyond what the law requires. The legislative history is clear that Section 512(i) was not intended to require that the

service provider "make diffcult judgments as to whether conduct is or is not infringing." YouTube could legally require a court judgment prior to branding its users "infringers." Instead, YouTube regularly terminates user
accounts based on mere allegations of infringement. Further, Congress did not intended "repeat" simply to mean "twice." The legislative history states that Section 512(i) is intended to address users who "repeatedly or flagrantly abus their access to the Internet through disrespect for the intellectual property rights of others,' and that such users should know "that there is a realistic threat of losing that access," YouTube's repeat infringer policy is completely consislent with these aims.
Finally, the statute requires termination of repeat infringers "in appropriate circumstances" -- the mere faci of being a repeat infringer does not require termination. Under YouTube's policy, users will generally receive two warnings before being ierminated. Because not all of YouTube's users are IP lawyers, and some may not fully understand types of postings are legal or illegal under the complexities of copyright law. giving Iwo warnings before taking the severe step of terminating a user seems

reasonable.

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YouTube's Pre-Existing Tools & Policies. YouTube already has a number of tools and policies designed to protect copyright that go well beyond the requirements of the DMCA. It has an industry-leading content verification tool that helps copyright owners identify content and file DMCA notices. Also, YouTube already implements "automated filtering" to the extent feasible, by making a unique "hash" of every video removed for copyright infringement and blocking any attempts to re-upload of identical video files. (The possible identification and blocking of content that is similar to or overlaps with allegedly infringing content raises lots of complexities and challenges, including important legal and technical issues discussd below.) As you know, YouTube also has a 1 Q-minUle limit on user-uploaded videos for the overwhelming majority of user accounts, which helps stop unauthorized uploads of full-length commercial programming.

Other Tools to Locate Potentially Infringing Content. As you recognize, the allocation of responsibilty under the DCMA requires copyright owners to handle the idenliication of infringing materials, while requiring service providers to promplly remove identified infringements. The DCMA doesn't require service providers to use all possible technological measures to police their sites and filter oUl infringing content, or require YouTube to invest substantial resources to develop, deploy, and distribUle to every copyright owner in the world complex audio fingerprinting technology services. Nor has YouTube promised to do so. YouTube announced its

commitment to work collaboratively with a handful of partners to develop,
test, and launch audio fingerprinting optimized for the context of those specific business partnerships. Deploying audio fingerprinting technologies is a complex undertaking that will necessrily have unintended consequences and overbroad results, as i mentioned above. Moreover, the rapid scaling 01 any such system introduces significant technical challenges and costs. We are currently working with some of our musc label partners to help us develop, test, and ultimately run filtering tools that address their unique

needs.
Note that all 01 the identification technologies you mention - Audible
Magic, Gracenote, Auditude - are primarily designed for use wilh music recordings, and rely on "fingerprinting" of the audio track only. For a wide variety of content, this can result in significant numbers of false positives and false negatives (see, for example, the scenario i noled in the previous paragraph regarding soundtracks thai are multiply licensed). We continue to test these iechnologies and expect 10 be able to refine our assssment of Iheir feasibility and application in the near future. Filtering for TV content has its own unique challenges, which we are just beginning to understand and address. Moreover, available tools may be able to identify (with some number of errors) the use of specific content -- but cannot identify whether the use of that content infringes a copyrighl interest. For example, you can imagine a technological tool that could tell (to some degree of certainty) thaI a videc clip includes some or all of a specific song. But that isn't the same as infringement, since the producer of the video may have licensed that song, or the use of the song (or an excerpt of the song) may be fair use (e.g., Ihe song or excerpt may be newSworthy or the video may be a
critical commentary on the song). It is quite common for video to

be

accompanied by soundtracks that are separately copyrighted. So while the content owner may own the copyright to a video as a whole, someone else could easily own the rights to the soundtrack standing alone. That other rights owner might have licensed that soundtrack to many olher video contenl producers. The audio fingerprint of one video work could thus easily flag

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as potentially infringing many other entirely different and entirely lawful

works. As a result, we expect that any technological tool that we develop wil be both underinclusive (it wil not catch all infringing uses of a
work) and overinclusive (it will flag material that is not infringing, e.g., because it's licensed or fair use). YouTube may offer the use of such a tool while knowing it may block users from posting some legal content. YouTube is not, however, required by any legal principle to offer this

imperfect service.
Going beyond fingerprinting, we have also made private commitmen1s to develop a couple of more-advanced and more-targeted content fillering tools with a handful of partners. One of these tools is an enhanced metadaia search tool, which enables partners to define search terms via XML feeds and aUlomatically and regularly receive search results matching the defined search terms. The tool displays thumbnail images of the videos in the search results to enable the copyrighl owner to determine ownership and submit removal requests with the click of a mouse. This tool is in Ihe early stages of testing, but we would like to talk with you about whether you might like to be among our firsl partners to help us test and further develop it.

Identified Violations of YouTube's Policies. As discusd, YouTube has traditionally had a policy against the posting of unaUlhorized copyrighted materiaL. We appreciate your bringing to our attention instances of specific potential violations of those policies, and your concerns aboUl whether scme of those policies may need to be even more rigorous. We'll investigate your reports of violations, and keep refining our policies and fine-iuning the enforcement of those policies on Ihe YouTube site,
Further Discussions. Re your request that we expand our existing tools (capable of blocking digitally identical copies) 10 include tools that may be capable of identifying or blocking audibiy similar bUl digitally dissimilar copies, we are conlinuing to evaluate those tools and are open to discussing your possible participation in these tests. i will leave it to our business teams to move forward with lhose discussions, and understand that our representalives will be in touch.

Best, -- Kent
Kent

Walker

VP & General Counsel Google inc.

1600 Amphitheatre Parkway
Mountain View, California 94043

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