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

Filing 226

DECLARATION of Michael Rubin 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 1-17 to Rubin Declaration, # 2 Exhibit 18 to Rubin Declaration, # 3 Exhibit 19-27 to Rubin Declaration, # 4 Exhibit 28-36 to Rubin Declaration, # 5 Exhibit 37-48 to Rubin Declaration, # 6 Exhibit 49-59 to Rubin Declaration, # 7 Exhibit 60-67 to Rubin Declaration)(Schapiro, Andrew)

Rubin Exhibit 1

Selected Documents Regarding the Use of YouTube for Marketing and Promotional Purposes by Plaintiffs

Ex. No. (Bates No.)
Ex. No. 3 (GOO00101855886) Ex. No. 4 (VIA00366274­ 87)

Date

Description

Feb. 15, 2006

Viacom's VH1: "we're using YouTube for all of our online video, and we love it."

Feb. 25, 2006

Paramount: "We recommend YouTube, Vimeo, & Vidlife as sites to post our content for viral distribution . . . the best promotion can be gained by: Posting behind­the­scenes footage or content from the cutting room floor, so users feel they have found something unique rather than a traditional trailer." Viacom: "[Another Viacom employee and I] are both going to submit clips to YouTube.com ­ him through his personal account so it seems like a user[] of the site and me through [the YouTube account] `mtv2.'" Viacom: discussing whether or not it should post the video "as coming from [Viacom's] VH1" or whether "the idea [is] to make it seem like it was leaked." In response to a question from the MPAA about whether videos on YouTube from "Mission Impossible 3" (a work in suit) were "leaked" improperly, Paramount confirms: "None of the below scenes mistakenly listed as `leaked' in this article were leaked at all, they were all brought online this week as pa[r]t of normal online publicity before the release of the film."

Ex. No. 5 (VIA10391714)

Mar. 10, 2006

Ex. No. 6 (VIA10406417­ 18)

Mar. 30-31, 2006

Ex. No. 7 (VIA11918373­ 75)

Apr. 19, 2006

1

Ex. No. (Bates No.)
Ex. No. 8 (VIA00330415)

Date

Description

Jun. 7-8, 2006

Viacom: agreeing to "execute" a plan to "leak" an episode onto YouTube from the MTV show Jamie Kennedy's Blowin' Up, a work in suit. Wall Street Journal article: "Viacom Inc.'s Paramount Vantage movie unit last Friday posted exclusively on YouTube an 83­second animated clip poking fun at Al Gore to promote its `An Inconvenient Truth' film." Viacom employee Andrew Lin (quoted in article): "As a marketer you almost can't find a better place than YouTube to promote your movie." Viacom: "I am uploading youtube videos under the fake grassroots account `demansr' ­­ am having a phone conversation with YouTube people on Wednesday as they already are questioning my identity. Bastards." Viacom also suggests that Viacom's Spike TV should use both an official Spike TV director account on YouTube and "fake grassroots" accounts to upload Viacom content to YouTube. Viacom reports regarding "video we have running on You­Tube presently" from television show on Viacom's Spike TV. Iced Media, a marketing agent for Viacom, identifying 59 videos it found on YouTube containing "Jackass" content that it planned to use when marketing Paramount's "Jackass 2" movie, a work in suit.

Ex. No. 9

Jun. 27, 2006

Ex. No. 10 (VIA01250162)

Jun. 30 - Jul. 5, 2006

Ex. No. 11 (VIA01179945)

Jul. 5, 2006

Ex. No. 12 (VIA00367207­ 11)

Jul. 31, 2006

2

Ex. No. (Bates No.)
Ex. No. 13 (VIA00330126­ 27)

Date

Description

Aug. 9, 2006

Viacom: identifying YouTube as one of the "sites to which I recommend leaking the Human Giant clips." The Human Giant is a television show on Viacom's MTV channel and a work in suit. Viacom employees discussing their posting of a video on YouTube from an upcoming episode of UFC (Ultimate Fighting Championship), a television show on Viacom's Spike TV television channel. A Viacom employee instructs that "the goal is to make [the video clip] looked `hijacked'" and states that a Viacom executive suggested they place "visual time code on [the video clip] to add to the `hijacked' effect." Paramount internal email: "Please help in uploading different versions of our viral slug video [from the movie `Flushed Away'] to YouTube! . . . we are staying away from `studio' marketing so please stay away from words like `Paramount' and `Flushed Away.' . . . THIS MUST BE VIRAL AND NOT DIRECTLY CONNECTED TO US! . . . We are working on more versions which have countdowns, watermarks, bars, time codes etc. . . . for the multiple YouTube Accounts."

Ex. No. 14 (VIA01179942­ 44)

Aug. 22, 2006

Ex. No. 15 (VIA00369535­ 36)

Oct. 4-5, 2006

3

Ex. No. (Bates No.)
Ex. No. 16 (VIA00369543­ 44)

Date

Description

Oct. 5-6, 2006

Paramount employees discussing the need to make sure that viral video clips posted to YouTube and other sites contain no "corporate references" such as "paramount," "dreamworks," "dreamworks animation," or "flushed away" in the "author name, tags, descriptions etc." Viacom: "we've uploaded a boatload of clips onto YouTube for distribution. . . . Please send them out to any and all sites you feel would pick up on these." Report prepared by Paramount regarding viral video campaign for the movie Flushed Away. The report lists 26 video clips that were uploaded to YouTube as part of a campaign that received 763,669 views. Paramount executive requesting that a video clip from the movie Norbit, a work in suit, "get posted on YouTube asap" but instructing that the video should be posted on YouTube by a third party and without any "PARAMOUNT LOGO OR ASSOCIATION." Paramount executive approving a request from Paramount employee to post a video clip of "Lloyd the Dog" from the movie Norbit, a work in suit, and to "`rough it up' with some time code" before releasing the video.

Ex. No. 17 (VIA01179951­ 52)

Oct. 9-10, 2006

Ex. No. 18 (VIA00371987­ 2012)

Nov. 4, 2006

Ex. No. 19 (VIA00345822)

Jan. 30, 2007

Ex. No. 20 (VIA00429987­ 89)

Jan. 30, 2007

4

Ex. No. (Bates No.)
Ex. No. 21

Date

Description

YouTube video watch page for YouTube video afuhSi13YAs, titled "Talking Dog from `Norbit'," to which a time code has been added. The screenshot shows that this video was uploaded to the YouTube account "Broadwayjoe415" the day after Paramount executives approved having video clips from the movie Norbit uploaded to viral video websites with time code added. Jan. 31- Feb. 1, 2007 Paramount executive discussing viral video clips from the movie Norbit, a work in suit, that Paramount's agent had uploaded to various websites, including YouTube. Paramount executive: "I'm really concerned b/c these clips have been uploaded as if from the official film­ from the studio. I thought we were clear with scott that it was to be uploaded from his personal acct and not associated with the film." Paramount to BayTSP: Do not issue takedown notices for any videos "posted by an approved Paramount Account" or any videos "reposted by another account that matches [videos posted by an approved Paramount Account]." Paramount executive to employee: "leave up" on YouTube a video from the movie Transformers, a work in suit. Paramount to BayTSP: "don't remove any instances of this clip online."

Ex. No. 22 (VIA00373855­ 59)

Ex. No. 23 (BAYTSP003732 680­81)

Feb. 27­28, 2007

Ex. No. 24 (BAYTSP003715 561)

May 9, 2007

5

Ex. No. (Bates No.)
Ex. No. 25 (VIA01987927­ 28)

Date

Description

May 11-14, 2007

Paramount executive: "I think a time code cut that is not color corrected, cleared, etc. is the way to go . . . leak on youtube?" Paramount executive instructs that when uploading a video promoting the movie Disturbia, a work in suit, to viral video sites: "[It] should definitely not be associated with the studio ­ [it] should appear as if a fan created and posted it." Paramount employee then reports that the video was uploaded to websites, including YouTube, "using email & account that can't be traced back to Paramount." Viacom executive regarding 102 videos on YouTube containing content from the movie Iron Man trailer, a work in suit: "We should not take down the trailer at this point." Paramount executive describing the marketing plan for the movie Cloverfield, a work in suit: "We will release the trailer exclusively in theaters . . . We will assume audiences will tape the trailer on their own and post it on YouTube ­ we will NOT issue take­down notices." Viacom to its marketing agent Fanscape: It is "okay" to upload viral videos to YouTube "if u can do it the in cognito [sic] way. :)."

Ex. No. 26 (VIA00346037­ 39)

Jun. 8-12, 2007

Ex. No. 27 (VIA11788213­ 227)

Sep. 11, 2007

Ex. No. 28 (VIA11918237)

Nov. 8, 2007

Ex. No. 29 (FS004957­59)

Feb. 19-20, 2008

6

Ex. No. (Bates No.)
Ex. No. 30 (FS043029­31)

Date

Description

Feb. 29 - Mar. 6, 2008

Viacom to its marketing agent Fanscape: "I assume we are posting everything on YouTube, and then using the YouTube links to get our content embedded elsewhere." Fanscape: "If we are trying to be `under the radar' we will not upload videos to the Fanscapevideos YouTube account but will create a different one." Viacom's marketing agent Fanscape sending a report to Viacom listing 282 videos containing content from several works in suit that Fanscape had uploaded to YouTube.

Ex. No. 31 (FS038616­43)

Nov. 18, 2008

7

Rubin Exhibit 2

Selected Documents Regarding the Use of YouTube for Marketing and Promotional Purposes by Other Companies

Ex. No. (Bates No.) Ex. No. 32 (GOO00101021878-88

Date

Description Internal YouTube document containing quotations from third parties, including Nike, Warner Brothers Records, and Atlantic Records, praising YouTube's effectiveness as a marketing platform.

Ex. No. 33 (GOO00105161257-58

May 10, 2006

Viacom marketer Wiredset: "We are all huge fans of YouTube and we upload many of our clients videos to the service. . . . We work with every major label and have clients all over the entertainment industry ­ and we always get video from them specifically for YouTube." NBC Universal to YouTube regarding an NBC­owned television pilot titled "Nobody's Watching": "In order to avoid any confusion of misunderstanding, I wanted to make sure you are aware that NBC is permitting YouTube to host this content, so there is no need for you to remove it until NBC expressly requests its removal." A screenshot of the referenced video titled "Nobody's Watching Part 1" accompanies this email. Article published by The New York Times describing how filmmakers created a series of videos that appeared to be amateur testimonials from a young woman and posted them to the YouTube account "Lonelygirl15" without revealing their connection to the videos.

Ex. Nos. 34-35 (GOO00109595002)

Jun. 21, 2006

Ex. No. 36

Sep. 13, 2006

1

Ex. No. (Bates No.) Ex. No. 37 (FS020140-42

Date Sep. 28, 2006

Description Viacom marketer Fanscape: "Keep in mind that the only site the clients care about is you tube so that will be the first place they will look." Cherry Lane: describing as "very cool" a promotional video on YouTube containing "our newest song." Viacom executive forwarding a news article reporting that CBS uploaded "300­plus video clips" to YouTube: "Should we discuss a more aggressive approach with our series clips, shortform, etc." Another Viacom executive responds: "We actually provide clips to YouTube quite aggressively." Collection of articles including one, published by The Atlanta Journal­ Constitution, quoting NBC Entertainment President Kevin Reilly: "We now in fact have gone into business with them [YouTube] for promotional efforts for our fall [shows.] That video, like everything else on YouTube at this point, none of it has official clearance. We allowed it to happen."

Ex. No. 38 (CH00003400)

Oct. 24, 2006

Ex. No. 39 (VIA0033059596)

Nov. 27­28, 2006

Ex. No. 40 (GOO00106946727-46)

Jul. 22, 2006

2

Ex. No. (Bates No.) Ex. No. 41

Date Sep. 6, 2007

Description Wall Street Journal article titled "Download This: YouTube Phenom Has a Big Secret," reporting that the 24­year­ old singer and guitarist named Marie Digby whose "simple, homemade music videos of her performing songs have been viewed more than 2.3 million times on YouTube," was actually part of an Internet marketing campaign by Walt Disney Company's Hollywood Records, which had "signed Ms. Digby in 2005, 18 months before she became a YouTube phenomenon."

3

Rubin Exhibit 3

Rubin Exhibit 4

Rubin Exhibit 5

Rubin Exhibit 6

Rubin Exhibit 7

Rubin Exhibit 8

Rubin Exhibit 9

Page 1

1 of 1 DOCUMENT Copyright 2006 Factiva, a Dow Jones and Reuters Company All Rights Reserved

(Copyright (c) 2006, Dow Jones & Company, Inc.)

The Wall Street Journal June 27, 2006 Tuesday SECTION: Pg. A1 LENGTH: 2176 words HEADLINE: Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day BYLINE: By Kevin J. Delaney BODY: Over the past decade, large media and tech companies have tried to build mass-market services offering video over the Internet. Someone has finally succeeded big: a startup with 35 employees and an office over a pizza restaurant. Through YouTube Inc.'s Web service, consumers view short videos more than 70 million times a day, ranging from clips of unicycling jugglers and aspiring musicians to vintage Bugs Bunny cartoons and World Cup soccer highlights recorded from TV. Users post more than 60,000 videos daily, with a limit of 10 minutes for most clips. The big question for YouTube now: Can it turn this loose bazaar of videos into an enduring business? It will take a step in that direction today when it gets a big endorsement from General Electric Co.'s NBC Universal. NBC plans to announce that it will make available on YouTube promotional video clips for some of its popular shows, such as "The Office," "Saturday Night Live" and "The Tonight Show with Jay Leno." NBC plans to market its new fall lineup using clips on YouTube, and is holding a contest for consumers to submit their own promotional videos for "The Office." It will also buy ads on the site and promote YouTube with mentions on television. That's a significant step for NBC, which earlier had demanded that YouTube take down clips of its programming. YouTube is a classic Silicon Valley garage-to-glory tale. Two friends, Chad Hurley and Steve Chen, started a company in a garage to tackle an issue they were grappling with personally: how to share home videos online. They maxed out Mr. Chen's credit card on business expenses before a financier bankrolled them. They built a huge consumer

Page 2 Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day Th following under the noses of richer, better-known companies with vastly larger payrolls. The young company burst forth as the dominant player. But for every Apple Computer Inc. or Google Inc., Silicon Valley's history is filled with dozens of hot startups that gained 15 minutes of fame but couldn't sustain their brief success. YouTube's executives, including some alumni of Internet flameouts, are now furiously planning strategy and making deals to sustain their upward arc. YouTube's 29-year-old chief executive, Mr. Hurley, and its 27-year-old chief technology officer, Mr. Chen, see two big challenges. The first is to figure out how to make money. The second is to address concerns of copyright holders that many of their TV and movie clips, music videos and songs are available through YouTube without permission. Messrs. Hurley and Chen, who worked together at eBay Inc.'s PayPal electronic-payment unit, are trying to tackle both issues with a major stroke. They're quietly building an online-ad system with Google-scale ambitions, which they intend to use to entice producers to post their best videos on YouTube. When the system rolls out later this year, YouTube will share revenue from ads that appear alongside some videos with the producers of those videos. Messrs. Hurley and Chen hope that Hollywood will come to see YouTube much as it now views network TV: a legitimate means of distributing content with revenue and promotional payoff. With stepped-up ad sales, YouTube could become a bigger target for lawsuits. While much of its content consists of home-shot videos, critics say the most-viewed items often involve some type of copyright infringement. On a recent day, top-viewed videos included clips from "Today" and "The Daily Show," a shaky "Radiohead" concert video and World Cup soccer highlights recorded from TV. YouTube says it removes clips when content owners request it, under a procedure outlined in the Digital Millennium Copyright Act of 1998. In some cases, copyright owners such as TV producers put the clips on its site themselves in order to generate buzz or to test ideas. NBC has been among the media companies most actively requesting YouTube to take down videos that users have uploaded without permission. With today's agreement, NBC seeks to promote its shows to YouTube's audience while getting assurances that material it doesn't want on the site will be removed. "YouTube has done their work on protecting copyright and we have assurances from them they will continue to do so," says NBC Universal Television Group Chief Marketing Officer John Miller. "They are a bright light, they have a lot of traffic," he adds. Based in San Mateo, Calif., YouTube got its start in February 2005, after a dinner party attended by Mr. Hurley, who studied design in college and sports shoulder-length hair, and Mr. Chen, a Taiwan-born engineer with small hoops in each ear. They took videos of the party, but grew frustrated when they tried to share the footage with friends. They set out to build an online service that would let them do just that. At the time, Mr. Chen was still working at PayPal. Mr. Hurley, who had designed PayPal's current logo during his 1999 job interview there, was doing consulting work. They set up shop in Mr. Hurley's Menlo Park garage. In May 2005, they released a test version of the site on the Web with no marketing. Early videos available prominently featured Mr. Chen's cat, PJ. The site quickly built up a following. It stood out from the growing corps of online video services, including an offering from Google, for its simplicity. YouTube serves up videos from its Web site directly or from other sites where people insert them, generally not requiring users to download any special software. To accomplish this technical feat, YouTube drew on open-source software and wrote its own code. The service can handle about 110 video formats and 64 audio formats used by digital photo and video cameras and cellphones. It also let consumers display its videos on other sites, such as blogs or personal pages on News Corp.'s popular MySpace social networking service. Users could easily upload the video and email links to YouTube videos to each other. The influential techie site Slashdot's mention of YouTube helped boost traffic.

Page 3 Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day Th After seeing Mr. Chen at a party last summer, former PayPal Chief Financial Officer Roelof Botha put some clips from his honeymoon in Italy on the site. Now a partner at venture-capital firm Sequoia Capital -- known for backing Apple, Cisco, Google and Yahoo, among others -- Mr. Botha invited the YouTube co-founders to his office in mid-August. Mr. Botha says that their project shares a key attribute with some of those tech legends: "building something for a personal need that winds up being universally useful." By September, users were viewing YouTube videos more than a million times a day. Plotting strategy with Mr. Botha in October, the YouTube founders still believed their main business opportunity involved individuals sharing home videos. The next month, they announced Sequoia had injected $3.5 million to help finance the company. But it started becoming clear to YouTube that users were sharing more than just their own videos, and viewership stretched far beyond circles of friends. By the time of the site's official public release on Dec. 15, consumers were viewing YouTube videos more than three million times daily. Millions of users had watched clips starring Brazilian soccer star Ronaldinho posted by sneaker giant Nike Inc. A few days later, someone posted to YouTube a skit from NBC's "Saturday Night Live" dubbed "Lazy Sunday," featuring two grown men rapping about cupcakes, red licorice candy and "The Chronicles of Narnia" film. After it turned up among user favorites on the site, Mr. Hurley on Dec. 28 emailed a contact at NBC. He asked whether NBC had provided the clip itself, and volunteered to remove it from YouTube if the video had been shared without NBC's permission. The NBC staffer replied that he didn't know the answer, but would look into it, Mr. Hurley says. Consumers viewed "Lazy Sunday" six million times before NBC on Feb. 3 contacted YouTube to request that it be removed, along with hundreds of other clips including Jay Leno monologues and video from the Winter Olympics. YouTube's rising popularity led to run-ins with others. In December, MySpace blocked users from playing YouTube videos on their MySpace pages. Consumer outcry followed and MySpace activated the YouTube feature again. A News Corp. executive later said MySpace was concerned that the YouTube videos contained porn, and only reactivated them once YouTube had given it assurances about porn filtering. (YouTube says it removes any pornography after users point it out.) Shortly after the incident, MySpace released its own video service to compete with YouTube. As YouTube users began complaining that the system was slowing, the company spent more on technology. In January, it began displaying limited advertising to help offset its rising costs for computer equipment and telecom lines. Mr. Chen predicts YouTube will open one new data center with computers to run its service each month this year. Thanks partly to its use on MySpace and the Saturday Night Live clip, YouTube quickly became a cultural phenomenon. Amateur video enthusiasts created their own video tributes to "Lazy Sunday" that they titled "Lazy Monday" and "Lazy Muncie." Videos of young people, including two Chinese students, hamming it up in front of Webcams while lip synching to popular songs were viewed millions of times. Along the way, the entertainment world began exploring how it might benefit from YouTube's audience. The Weinstein Co., a movie company run by producers Bob and Harvey Weinstein, in April premiered the first eight minutes of the film "Lucky Number Slevin" on YouTube. Viacom Inc.'s Paramount Vantage movie unit last Friday posted exclusively on YouTube an 83-second animated clip poking fun at Al Gore to promote its "An Inconvenient Truth" film. By midday yesterday, it had been viewed nearly 600,000 times. "As a marketer you almost can't find a better place than YouTube to promote your movie," says Andrew Lin, vice president for interactive marketing at Paramount Vantage. Viacom owns YouTube rival ifilm. Still, there were bumps. C-SPAN asked YouTube to take down popular clips of an appearance by television personality Stephen Colbert at the White House Correspondents' Association dinner in April. C-SPAN distributed the clips free through Google's video service.

Page 4 Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day Th Some top tech and entertainment executives have lambasted the company -- while others have showed grudging admiration. Microsoft Corp. Chairman Bill Gates in May told attendees of The Wall Street Journal's "D" technology conference that, given the copyright issues and the lack of a clear path to profitability, his company would be "in a lot of trouble" if it did what YouTube has. But he also acknowledged spending time on the site. "I saw a bunch of old Harlem Globetrotters movies up there the other night, it's great," he said. Google and other YouTube competitors also stepped up their games. Google simplified its video-upload interface to match what YouTube had been offering. Yahoo this month upgraded its video service to allow consumers to submit videos directly to it, competing more squarely with YouTube. Rumors have circulated in recent months that some major media companies have expressed interest in buying YouTube. In response Mr. Hurley says the company is not for sale. He says an initial public offering in the future is a possibility. The YouTube co-founders decline to provide many specific details of the ad system they expect to gradually begin rolling out next month. But they say they're not fond of commercials that play before a user can watch a video, known in the industry as "prerolls." YouTube recently hired Yahoo sales executive Tony Nethercutt to build its sales team. Consumers can now submit videos from their mobile phones, and Messrs. Chen and Hurley say they one day should be able to view YouTube clips on phones and other devices. They say they'll potentially expand beyond video to audio and other content. For now, YouTube remains by far the most-visited video site on the Web. It attracted more than 20 million U.S. users in May, compared with 11.1 million for Microsoft's MSN Video and around seven million for both MySpace's video site and Google Video, according to research firm NetRatings Inc. YouTube says behavior indicates that users are most interested in viewing clips three minutes or shorter. "We're at the fork in the road where Google was at maybe four or five years ago before they rolled out" their current ad model, says Mr. Chen. A big question is whether more advertising and promotions will drive away some users who like the site's edgy feeling. Consumers spoke up earlier this year when YouTube's home page began to highlight in yellow links to videos from official content partners, questioning the preferential treatment. In response, YouTube quickly removed the yellow highlighting from the page. --Online Today: WSJ.com subscribers can read an article about Veoh, a YouTube competitor that recently decided to pull all pornographic videos from its site, at WSJ.com/OnlineToday.

Page 5 Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day Th

Page 6 Garage Brand: With NBC Pact, YouTube Site Tries to Build a Lasting Business --- Internet Video Service Sketches A Path to Profitability; Difficult Copyright Issues --- Receiving 60,000 Clips a Day Th

NOTES: PUBLISHER: Dow Jones & Company, Inc. LOAD-DATE: June 28, 2006

Rubin Exhibit 10

Rubin Exhibit 11

Rubin Exhibit 12

Rubin Exhibit 13

Rubin Exhibit 14

Rubin Exhibit 15

Rubin Exhibit 16

Rubin Exhibit 17