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 DECLARATION EXHIBITS CONTINUED

Rubin Exhibit 37

Rubin Exhibit 38

Rubin Exhibit 39

Rubin Exhibit 40

Rubin Exhibit 41

Rubin Exhibit 42

Selected Documents Regarding Mistaken Takedown Requests Viacom Sent to YouTube Targeting its Own Content

Ex. No. (Bates No.) Ex. No. 43 (BAYTSP 002775849­52)

Date May 10, 2006

Description Viacom agent BayTSP to Viacom: "We have not been sending taker [sic] down notices for trailers since we got yelled at by Paramount Marketing for taking down trailers that they posted on youtube." YouTube responding to Paramount employee's question "How does this happen?" after Paramount content was taken down by a DMCA notice: "It was taken down due to an infringement notification that we received from baytsp." WiredSet to YouTube in response to MTV's takedown of WiredSet-posted videos of MTV's The Hills: "We were hired by MTV to do online marketing around the show with a key tool being uploading and syndicating clips from each show via YouTube. We were authorized by MTV to use their videos on YouTube." Series of documents starting with BayTSP takedown notice to YouTube requesting removal of a video posted by the user "tesderiw" and ending with email from BayTSP to Viacom: "this video belongs to WiredSet ­ approved account." All documents refer to the same YouTube video: UT6kmddYa_A.

Ex. No. 44 (GOO00100867454­58)

Jul. 25, 2006

Ex. No. 45 (GOO00102693638 ­40)

Aug. 2-9, 2006

Ex. Nos. 46 - 48 (GOO00108200963 ­69; BAYTSP 001125285­88; BAYTSP 004343298)

Feb. 3-17, 2007

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Ex. No. (Bates No.) Ex. Nos. 49 - 52 (BAYTSP 003722950­92; BAYTSP 001124869­70; BAYTSP 003733804; BAYTSP 001124846­48)

Date May. 1-8, 2007

Description Series of documents showing Viacom's takedown request for dozens of videos from YouTube account bullrunvideo, Viacom's retraction of those takedown requests because it "was under the impression that this user was on the `protected, do not takedown list,'" and its eventual decision to "reinstate the takedown" after "some discussion" at Viacom "regarding the Bullrun takedown retraction." Viacom marketer ICED Media to YouTube in email entitled "Thatsfunny YouTube Account": "Our Youtube profile was recently mistakenly closed due to a copyright infringement issue with one of my clients (Comedy Central)." Viacom to YouTube in email titled "Please put SpikeTV back up": "I know you're removing Viacom material, but you've suspended our account [m]istakenly. We entered into an agreement last year with YouTube for an [o]fficial Spike channel. All of those clips were legal." Employee of Viacom agent BayTSP who caused the account to be suspended: "This is my `oh shit' for the day." Documents reflecting that "[a]n authorized Paramount account on YouTube: Paraccount" was terminated due to takedown notices sent by Viacom's agent BayTSP: "The first 2 strikes against paraccount came from the major notice on 2/2/07. The third strike was received by YouTube on March 2, for a Norbit infringement."

Ex. No. 53 (GOO00100859183­87)

Dec. 22, 2006

Ex. Nos. 54 - 55 (GOO00100953476; BAYTSP 003726370­71)

Feb. 4-5, 2007

Ex. Nos. 56 - 57 (GOO00100519038­41; BAYTSP 003720658)

Mar. 16-17, 2007

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Ex. No. (Bates No.) Ex. Nos. 58 - 59 (VIA01244062­ 64; VIA11786564­65)

Date Oct. 5-19, 2007

Description Documents reflecting that the YouTube account of Paramount's "LAST KISS soundtrack partner" Lakeshore Entertainment was suspended because Viacom "wrongfully identified as a copyright infringement" a video uploaded to that account. Documents starting with Viacom marketer Fanscape to MTV noting that "Viacom is cease­and­desisting the content from MTV off YouTube and has caused our account to be disabled, making all of the MTV videos we have on that account inaccessible," and showing, in a response by MTV, that this occurred even though MTV had "steps in place to alert our legal team when a 3rd party is posting [sic] our behalf." Viacom to BayTSP regarding mistaken takedown: "Can you reach out to youtube to accelerate the reinstatement of this account, our marketing vendor is freaking out as this is down for two days now." Viacom marketer Fanscape to YouTube: "For some reason our Fanscape YouTube Channel/Account was permanently disabled today. We work with MTV (Viacom) on several of their shows and upload A LOT of their content (clips from shows, promo clips, trailers, teasers, etc.). We've had this problem before with some of our videos getting flagged by Viacom not realizing we are an MTV agency . . . Everything on our channel has been legally provided for us by our clients . . ."

Ex. Nos. 60 & 61 (FS022201­02; FS037079­80)

Feb. 13, 2008

Ex. No. 62 (BAYTSP 001090016)

Feb. 14, 2008

Ex. No. 63 (FS000089)

Aug. 18, 2008

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Ex. No. (Bates No.) Ex. No. 64 (FS000029)

Date Sep. 9, 2008

Description Viacom marketer Fanscape to YouTube: "This is the second time in as many months that our channels have been disabled. I do understand that YouTube is not to blame for these disruptions and instead it [sic] more systemic of what occurs in big companies like our clients where one department isn't aware of what another department is doing . . ." Viacom marketer Fanscape to Viacom: "All three of our Fanscape YouTube Channels have been disabled. We have copyright infringements from Viacom or MTV related companies (i.e. record labels) that we need to take care of as soon as possible. If we can't keep a YouTube channel live then it makes it very difficult to blast out the MTV videos provided by you to promote new/existing shows. We of course are currently working around the problem and using alternative UGC sites ­ but as I'm sure you are aware, they simply aren't as popular as YouTube." Viacom marketer Fanscape to Viacom: "I just received this copyright violation from Viacom. It is very old content, but we need to get it cleared up so our channel isn't pulled down again. Is there anyway [sic] we can make sure legal doesn't pull down any videos on the fanscapevideos channel? This is happening quite often now . . ."

Ex. No. 65 (FS045726­29)

Sep. 9, 2008

Ex. No. 66 (FS045676­79)

Sep. 16, 2008

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Ex. No. (Bates No.) Ex. No. 67 (FS044880­84)

Date Oct. 14, 2008

Description Viacom marketer Fanscape to Viacom: "Viacom has filed copyright claims against three of our videos on the `fanscapevideos' channel." A Viacom employee responded: "I'm on it. I'm not sure why this keeps happening because my legal contact says that they are aware of the channel." Fanscape email attaching "the wrap report for `A Double Shot at Love,'" and noting "you will not see links to all of the YouTube videos in the attached recap because unfortunately Viacom legal yanked 4 out of 5."

Ex. No. 68 (FS003325-26; FS003335-44)

Jan. 6, 2009

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Rubin Exhibit 43

Rubin Exhibit 44

Rubin Exhibit 45

Rubin Exhibit 46

Rubin Exhibit 47

Rubin Exhibit 48