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

Filing 292

DECLARATION of Chad Hurley in Opposition 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 Youtube, Inc., Youtube, LLC, Google, Inc.. (Schapiro, Andrew)

HIGHLY CONFIDENTIAL FILED UNDER SEAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIACOM INTERNATIONAL INC., ET AL., ) ) Plaintiffs, ) v. ) ) YOUTUBE, INC., ET AL., ) ) Defendants. ) ) THE FOOTBALL ASSOCIATION ) PREMIER LEAGUE LIMITED, ET AL., on ) behalf of themselves and all others ) similarly situated, ) ) Plaintiffs, ) v. ) ) YOUTUBE, INC., ET AL., ) ) Defendants. ) )

ECF Case Civil No. 07-CV-2103 (LLS)

ECF Case Civil No. 07-CV-3582 (LLS)

DECLARATION OF CHAD HURLEY SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT CHAD HURLEY, pursuant to 28 U.S.C. § 1746, hereby declares as follows: 1. I am one of the three founders of YouTube (along with Steve Chen and

Jawed Karim) and YouTube's Chief Executive Officer. I submit this declaration in support of Defendants' opposition to plaintiffs' motions for partial summary judgment. 2. As explained in my March 3, 2010 declaration submitted in support of

YouTube's motion for summary judgment, YouTube was not founded with an intent to in any way encourage or foster copyright piracy. Our intent was to create a site for personal videos created by users.

HIGHLY CONFIDENTIAL FILED UNDER SEAL 3. Early on, Steve Chen, Jawed Karim, and I debated the role of so-called

"stupid" or "viral" videos on YouTube. W e generally used this as a shorthand for "prank" or "stunt" videos (like a person drinking an entire gallon of milk). It was not a shorthand for network television shows or feature films. What we referred to as stupid videos were amateur videos that we understood to have been created as something to be circulated virally around the Internet. At the time we started YouTube, there were a few other video websites (including bigboys,com, stupidvideos.com, and filecabi.net) that were focusing on those kinds of videos. While stupid videos seemed to have the potential to be popular, they did not represent the kind of user-created, personal videos that I wanted YouTube to attract and build a community around. Steve, Jawed, and I had many discussions about what policies we should have for these kinds of "stupid videos" and we expressed different views at different times. But those debates were about our vision for YouTube, whether it should be only about personal videos or whether we should be more willing to have some "stupid videos" on the site as well. These debates were not about copyright infringement. None of us wanted videos on YouTube that were infringing a copyright or that the creators of those videos did not want on the site. 4. Steve, Jawed and I agreed we should reject videos due to concerns about

copyright. Although I had no idea whether professional-looking videos on YouTube were authorized or unauthorized, I wanted to remove them because I didn't want our users to get the wrong impression that YouTube was intended for uploading videos they did not create or were not authorized to upload. As I wrote in a June 2005 email, saying we should remove videos that appeared to be from a network TV show, "the key to our success is personal videos" and "We are not another `StupidVideos' or

HIGHLY CONFIDENTIAL FILED UNDER SEAL `Bittorrent'." In the same email, I said that "viral videos are fine" but not something that comes from "a network or movie." See Ex. A hereto, a true and correct copy of a 6/26/05 email chain among me, Steve Chen, and Jawed Karim. 5. One example of our internal debates about stupid videos is an email

exchange that Steve, Jawed, and I had in July 2005, in which Jawed advocated allowing "stupid videos" on YouTube, which he estimated "will be 1% of our videos." I responded, "yup, we need the views. i'm a little concerned with the recent supreme court ruling on copyright material though." I then proposed allowing users to select among various descriptors when uploading videos (including "personal" and "viral"). My thinking was that if "viral" videos ever did become a source of copyright problems, this mechanism would allow YouTube to more easily remove them. See Ex. B hereto, a true and correct copy of an email chain among me, Steve Chen, and Jawed Karim. 6. In my March 3, 2010 declaration, I also discussed a number of emails

among Steve, Jawed, and I where we discussed our vision for YouTube and how we put that vision into practice by rejecting users' videos that looked like professionally produced material that we thought may not be authorized. Some more examples of this include the following: a. I proposed a "rule of thumb" under which videos with "obvious network branding" would be rejected. See Ex. C hereto, a true and correct copy of a 6/28/05 email I wrote to Steve and Jawed. b. On July 2, 2005, I sent an email to Jawed telling him an account name of a user with music videos to be removed. See Ex. D hereto, a true and correct copy of a 7/2/05 email I wrote to Jawed.

HIGHLY CONFIDENTIAL FILED UNDER SEAL c. On July 4, 2005, I exchanged email with Jawed about rejecting music videos and footage from Major League Baseball. See Ex. E hereto, a true and correct copy of a 7/4/05 email string among me, Steve, and Jawed. d. On July 16, 2005, Jawed sent me and Steve an email about rejecting clips from the movie Initial D. See Ex. F hereto, a true and correct copy of a 7/16/05 email string among me, Steve, and Jawed. e. On August 1, 2005, I emailed Jawed about rejecting videos that appeared to be clips from the television show Family Guy and Jawed replied "reject, definitely." See Ex. G hereto, a true and correct copy of a 8/1/05 email string including me and Jawed. 7. After Viacom took down approximately 100,000 videos from YouTube in

February 2007, YouTube's traffic increased. I expected this would happen, as I did not think a takedown of Viacom content would affect YouTube. See Ex. H hereto, a true and correct copy of an email chain including me and Omid Kordestani. Third party web site reporting data released shortly thereafter confirmed my expectations, showing that visits to YouTube actually surged, rather than decreased after Viacom's takedown. See Ex. I, hereto, a true and correct copy of a 2/27/07 email copied to me. YouTube's data also shows increased video views in the post-February 2007 time frame. For example, according to data I have reviewed, YouTube's average daily views in January 2007 were approximately 252 million. By May 2008, YouTube's average daily views had increased to approximately 1.1 billion. Since then, YouTube's average daily views have