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

Filing 296

COUNTER STATEMENT TO 189 Rule 56.1 Statement. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Kohlmann, Susan)

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Subject to Protective Order HIGHLY CONFIDENTIAL UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) VIACOM INTERNATIONAL INC., ) COMEDY PARTNERS, ) COUNTRY MUSIC TELEVISION, INC., ) PARAMOUNT PICTURES CORPORATION, ) and BLACK ENTERTAINMENT TELEVISION ) LLC, ) ) Plaintiffs, ) v. ) ) YOUTUBE INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ) __________________________________________) Case No. 1:07-cv-02103 (LLS) (Related Case No. 1:07-cv-03582 (LLS)) ECF Case VIACOM'S SUPPLEMENTAL COUNTER-STATEMENT IN RESPONSE TO FACTS ASSERTED IN DEFENDANTS' SUMMARY JUDGMENT MEMORANDUM OF LAW BUT OMITTED FROM DEFENDANTS' LOCAL RULE 56.1 STATEMENT Stuart J. Baskin (No. SB-9936) John Gueli (No. JG-8427) Kirsten Nelson Cunha (No. KN-0283) SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179 Paul M. Smith (No. PS-2362) William M. Hohengarten (No. WH-5233) Scott B. Wilkens (pro hac vice) Matthew S. Hellman (pro hac vice) JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 Susan J. Kohlmann (No. SK-1855) JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 891-1690 Facsimile: (212) 891-1699 Attorneys for Plaintiffs Subject to Protective Order HIGHLY CONFIDENTIAL LEGEND Pursuant to Local Rule 56.1, Viacom submits this Counter-Statement in response to factual allegations that Defendants made in their Motion for Summary Judgment but omitted from their Local Rule 56.1 Statement. 1 This Counter-Statement responds to factual allegations that Defendants made in their Motion for Summary Judgment but omitted from their Local Rule 56.1 Statement. Because Defendants omitted these allegations from their Local Rule 56.1 Statement, they have failed to identify them as undisputed and material to summary judgment. Consequently, the Court should disregard the omitted allegations. See Pharm., Inc. v. Am. Pharm. Partners, Inc., 511 F. Supp. 2d 324, 332 (E.D.N.Y. 2007) ("Pursuant to Local Rule 56.1, the movant is required to include not just some but all of the facts material to its motion that movant contends are undisputed, properly supported by citation to evidence"); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73-74 (2d Cir. 2001) ("The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties."). To the extent that the Court nonetheless entertains these factual assertions in ruling on Defendants' summary judgment motion, Viacom submits responses in this Counter-Statement. The left-hand column contains Defendants' factual assertions and citations to evidence, and the right column contains Viacom's response to each factual assertion, including evidence and references to evidentiary objections, as appropriate. Viacom also incorporates by reference the facts included its own Local Rule 56.1 Statement, which demonstrate not only that Defendants' asserted facts are disputed but that the material facts supporting Viacom's motion for summary judgment are undisputed. ii 1 Subject to Protective Order HIGHLY CONFIDENTIAL As used herein: "Defs. SUF" refers to Defendants' Rule 56.1 Statement, filed in support of Defendants' Motion for Summary Judgment. "Kohlmann Decl." refers to the Declaration of Susan J. Kohlmann, filed herewith. "Hohengarten Decl." refers to the Declaration of William M. Hohengarten, filed under seal March 5, 2010, in support of Viacom's Motion for Summary Judgment. "Solow Decl." refers to the declaration of Warren Solow, filed under seal March 5, 2010, in support of Viacom's Motion for Summary Judgment. "Viacom SUF" refers to Viacom's Statement of Undisputed Facts In Support of Its Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense, filed under seal March 5, 2010. Citations to the "Viacom SUF" incorporate by reference any exhibit cited therein. "Viacom Evid. Obj." refers to Viacom's Evidentiary Objections and Motion to Strike Submitted in Support of Defendants' Motion for Summary Judgment. "Resp. to Defs. SUF" refers to Viacom's Counter-Statement in Response to Defendants' Local Rule 56.1 Statement in Support of Defendants' Motion for Summary Judgment, filed herewith. "Wilkens Decl." refers to the Declaration of Scott B. Wilkens, filed herewith. Exhibits to any declaration are indicated as "[Declarant Name] Ex." followed by the exhibit number. Citations to paragraphs in any declaration or the Viacom SUF incorporate by reference any exhibit cited therein. iii Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.1. YouTube was named Time Magazine's "Invention of the Year" for 2006. Defs. Opening Mem. at p. 4 (citing Schapiro Ex. 1). 1.2. In November of that year [2006] Google acquired YouTube. Defs. Opening Mem. at p. 4. 1.3. Although it only scratches the surface, a short video called "This is YouTube" . . . provides a useful introduction to the array of creative and inspiring material found on YouTube. Defs. Opening Mem. at p. 5 (citing Schapiro Ex. 2). 1.4. YouTube's users have filled the service with personal videos of endless variety: from amateur dance and comedy routines to raw video footage taken on the streets of Tehran as the Iranian government clashed with students; from clips of cats playing the piano to instructional videos teaching people how to fix a leaky faucet or bake a chocolate cake. Defs. Opening Mem. at pp. 5-6 (citing Walk Decl. 9, 14, 20). 1.5. [D]uring the 2008 election, all the major candidates for President posted videos to YouTube. Defs. Opening Mem. at p. 6 (citing Walk Decl. 6). 1.6. [I]n two of the 2008 presidential debates, Americans were able to pose questions directly to the candidates through videos uploaded to YouTube. Defs. Opening Mem. at p. 6 (citing Walk Decl. 6). Uncontroverted. Response Uncontroverted but immaterial to any issues before the Court. Uncontroverted. Accord Viacom SUF 16, 17. Controverted. Contrary to the portrayal in this self-serving, highly selective video created by Defendants for purposes of this litigation, the undisputed evidence shows that YouTube has hosted a vast multitude of infringing content. See, e.g., Viacom SUF 193, 195, 215, 292. Controverted, but immaterial to any issues before the Court. See supra 1.3. Further, Walk Decl. 9 contains inadmissible generalized and conclusory statements. See Evid. Obj. at 6. Uncontroverted. 1 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.7. [T]he White House posts a weekly video address on YouTube, and the President recently sat down for an interview in which he answered questions from ordinary people submitted through YouTube, an event the New York Times described as "the 21st century equivalent of Roosevelt's fireside chats." Defs. Opening Mem. at p. 6 (citing Walk Decl. 6). 1.8. [T]he 111th Congress created a "hub" on YouTube for members of the House and Senate to post videos about the issues of the day, and hundreds of members of Congress have set up their own channels on YouTube. Defs. Opening Mem. at p. 6 (citing Walk Decl. 6). Uncontroverted. Response Uncontroverted. 1.9. John McCain's presidential campaign Controverted to the extent Defendants rely on congratulated YouTube for its inadmissible hearsay. See Evid. Obj. at 14. "groundbreaking contributions" to the Immaterial to any issues before the Court. democratic process: "By providing a platform for political candidates and the American public to post, view, share, discuss, comment on, mash-up, re-mix, and argue over campaign-related videos, YouTube has played a prominent and overwhelmingly positive role in the 2008 election." Defs. Opening Mem. at pp. 6-7 (citing Levine Decl. 29 & Ex. 13). 1.10. Students seeking admission to those colleges, and colleges seeking to recruit students, have likewise turned to YouTube. Defs. Opening Mem. at p. 7 (citing Walk Decl. 13). 1.11. Under [YouTube's content partnership agreements], [content owners] make content available to YouTube by uploading it directly .... Uncontroverted. Controverted to the extent that the asserted fact implies that this activity occurred throughout YouTube's existence. It is undisputed that YouTube did not enter into its first content partnership agreement with any 2 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Defs. Opening Mem. at p. 8 (citing Walk Decl. 10). 1.12. By February 2006 . . . users were watching more than 18 million videos per day. Defs. Opening Mem. at p. 8 (citing Hurley Decl. 23 & Exs. 28, 29). 1.13. In 2006, the Motion Picture Association of America (the anti-piracy association for the major movie studios) told the press: "YouTube has been a good corporate citizen and has taken off copyrighted material." Defs. Opening Mem. at p. 11 (citing Levine Decl. 32 & Ex. 14). Response major media company until late in the third quarter of 2006. See Viacom SUF 299, 300. Uncontroverted. Controverted in that the undisputed evidence shows that, in 2006, YouTube repeatedly refused to work with the MPAA to prevent the infringement of the copyrighted works of MPAA's members, including Paramount. See Viacom SUF 225-229 (citing deposition testimony of former MPAA President Dean Garfield). The cited evidence is also inadmissible hearsay. See Evid. Obj. at 14. Controverted to the extent that Defendants are seeking to rely on the out of court statements of a third party for the truth of the matter asserted. See Evid. Obj. at 14. Further controverted to the extent that the asserted fact implies that NBC Universal was satisfied with YouTube's compliance with the copyright laws. NBC Universal Executive VP and General Counsel Richard Cotton complained to YouTube about "the persistent infringement of NBC Universal . . . copyrighted content on the YouTube.com website." Kohlmann Ex. 29, GOO00102826792-98 (letter from NBC Universal General Counsel Richard Cotton). NBC Universal also submitted an amicus brief in opposition to YouTube's motion of summary judgment in Tur v. YouTube, pointing out the numerous flaws in YouTube's copyright policy. See Brief of Amicus Curiae NBC Universal, Inc. in Support of Plaintiff's Opposition to YouTube Inc.'s Motion for 3 1.14. That same year, NBC hailed YouTube as a "bright light" on copyright protection and proclaimed that: "YouTube is the perfect online media partner . . . We are thrilled to be partnering with this forward-thinking company." Defs. Opening Mem. at p. 11 (citing Levine Decl. 33 & Exs. 15, 16). Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Response Partial Summary Judgment, Tur v. YouTube Inc., 06-cv-04436, 2007 WL 1893635 (C.D. Cal. June 20, 2007) (Dkt. No. 75). Controverted to the extent that Defendants purport to rely on this statement for the truth of the matter asserted. See Evid. Obj. at 14. Further controverted as misleading, in that the quoted statement was made only after Warner Music and YouTube reached an agreement in which YouTube agreed to provide Warner with digital fingerprinting. See Viacom SUF 299. Controverted as unsupported by the proffered evidence and as misleading. Defendants have alleged only that over the past four years, Viacom's various divisions have worked with 18 marketing agencies to promote one or more Viacom's films or television programs--not "dozens of agencies"--and the evidence proffered by Defendants does not even demonstrate that. See infra 1.59. This purported fact is also immaterial to any issue before the Court. Controverted. While some Viacom employees briefly considered the idea of exploring a possible acquisition of YouTube, Defendants dramatically overstate the seriousness of Viacom's consideration of such an acquisition. See Resp. to Defs. SUF 46. Controverted to the extent that the asserted facts suggests that Viacom was willing to enter a licensing agreement in the absence of being properly compensated for the use of its content and for settling its copyright infringement claims. Further controverted as misleading to the extent that the asserted fact suggests that Viacom was willing to enter into a licensing agreement in the absence of YouTube's agreement to prevent the infringement of Viacom's works, through digital fingerprinting and other means. See Viacom SUF 203-210. 4 1.15. Warner Music similarly lauded YouTube's "commitment to creating a framework in which the needs of [its] users and copyright holders can coexist in a mutually beneficial environment." Defs. Opening Mem. at p. 11 (citing Levine Decl. 33 & Ex. 17). 1.16. [D]ozens of separate third-party marketing agencies working on [Viacom's] behalf have posted a host of clips from Viacom television programs and movies to YouTube. Defs. Opening Mem. at pp. 11-12. 1.17. To the frustration of many within [Viacom], Viacom's efforts to acquire YouTube proved unsuccessful. Defs. Opening Mem. at p. 12 (citing Schapiro Ex. 5). 1.18. [I]n early 2006, Viacom proposed the idea of a content-partnership agreement with YouTube, which the parties negotiated for months. Defs. Opening Mem. at p. 12 (citing Maxcy Decl. 8, Schapiro Exs. 6, 7). Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.22. After the negotiations stalled, Viacom developed a plan to send YouTube a large DMCA takedown notice in the hopes of gaining leverage and "provide [Viacom] the economics" it had requested. Defs. Opening Mem. at p. 12 (citing Schapiro Ex. 10). Response Controverted. The cited document refers to the mass takedown Viacom issued to YouTube, which was implemented in an attempt to combat the massive infringement of Viacom's works on YouTube. Viacom opted not to remove all of the clips that it was able to locate on YouTube during the pendency of the negotiations between Viacom and YouTube because of the expectation that Viacom's infringement claims would be settled as part of an overall licensing deal. See Resp. to Defs. SUF 128. Controverted, but immaterial to any issues before the Court. See supra 1.22. 1.23. Viacom wanted a mass takedown to occur in "one dramatic event (as opposed to drips)." Defs. Opening Mem. at pp. 12-13 (citing Schapiro Ex. 10). 1.24. To that end, Viacom put in place a "find and hold" strategy: For months it searched YouTube for videos allegedly containing Viacom content, but instead of promptly requesting their removal, Viacom added the clips to an internal list. Defs. Opening Mem. at p. 13 (citing Schapiro Ex. 11 (161:9-21, 167:10-18, 202:14-19)). Controverted, but immaterial to any issues before the Court. See supra 1.22. Controverted. Viacom personnel did believe that once many videos infringing Viacom's copyrights were removed from YouTube, more videos would be viewed on Viacom's own sites. And that is precisely what took place. Indeed, video views did increase on a Defs. Opening Mem. at p. 13 (citing Hurley variety of Viacom online properties in the Decl. 26; see also Schapiro Exs. 13 (234:17- month following the February 2, 2007 288:14), 14, 15). takedown. See, e.g., Kohlmann Ex. 62, VIA01108775. Further controverted to the extent that Defendants have provided no evidence to suggest that Viacom believed that YouTube traffic would decrease following the February 6 1.25. Despite Viacom's apparent expectations that YouTube's traffic would decrease and traffic to Viacom's own websites would soar after those videos were removed, neither prediction came true. Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Response 2, 2007 takedown. 1.26. Some of Viacom's executives soon came to doubt the wisdom of [this lawsuit]. Defs. Opening Mem. at p. 13 n.2 (citing Schapiro Ex. 16). 1.27. Viacom alleges that 63,497 useruploaded video clips that once appeared on YouTube infringed copyrights in approximately 500 different television programs and motion pictures that Viacom claims to own. Defs. Opening Mem. at p. 14 (citing Rubin Decl. 7). 1.28. These clips have been removed from YouTube; most were the subject of DMCA notices, and taken down in response. Defs. Opening Mem. at pp. 14-15 (citing Schapiro Ex. 18 (141:10-19, 148:8-18); Levine Decl. 19-21). 1.29. [M]any of the clips in suit are under one minute long. Defs. Opening Mem. at p. 15 (citing Rubin Decl. 15). 1.30. Many other clips in suit, even if not themselves directly uploaded to YouTube by Viacom, are identical to or indistinguishable from the promotional materials that Viacom has authorized to appear on YouTube. Defs. Opening Mem. at p. 15. 1.31. The YouTube website has consistently offered detailed instructions about the information that copyright holders should include in any notices that they wish to send to YouTube's designated agent. Defs. Opening Mem. at p. 22 (citing Levine 7 Uncontroverted with respect to the two Viacom employees in the last-in-time email in Schapiro Ex. 16, but immaterial to any issues before the Court. Controverted. The correct number of clips in suit is 62,632. See Viacom SUF 7. Viacom is withdrawing the five clips identified by Defendants as authorized by Viacom, at Rubin Decl. 14. The correct number of infringed Viacom works is 3,085, not 500. See Viacom SUF 6. Uncontroverted. Controverted. Less than 14 percent of the clips in suit are under one minute long. See Wilkens Decl. 3. Controverted. See infra 1.63. Controverted. The cited evidence deals primarily with the instructions currently available on YouTube's website, with only Hurley Decl. 21 containing the vaguest of statements regarding historical instructions. The current instructions are not detailed and merely state the "elements of notification" Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Decl. 15-16; Hurley Decl. 21). Response requirements of the DMCA, with only the following additional text: "Providing URLs in the body of an email is the best way to help us locate content quickly." Compare Kohlmann Ex. 90 (screenshot of YouTube Copyright Infringement Notification page) with 17 U.S.C. 512(c)(3). Plaintiffs lack knowledge to admit or controvert the alleged fact as to any moments in time in which an earlier version of the current instructions appeared on YouTube's site. Controverted, in that Defendants have refused copyright owners' requests that Defendants comply with the "representative lists" requirement under the DMCA. See Hohengarten Ex. 244, VIA01475466-67 (letter from Viacom General Counsel Mike Fricklas and NBCU General Counsel Rick Cotton to Google General Counsel Kent Walker and Google Senior Vice President David Drummond asking that YouTube respond to representative lists). But YouTube takes the extreme position that content owners must point to the URLs of specific infringing videos before YouTube takes action to remove them. See Hohengarten Ex. 382, GOO001-08050272 (rejecting Mr. Fricklas's request that YouTube respond to representative lists); see also Kohlmann Ex. 13, GOO001-00707687 ("I will need the specific URL to the video"); Kohlmann Ex. 3, GOO001-00040895 ("Please understand that we need the links to the videos themselves."); Kohlmann Ex. 31, GOO001-02975607 (August 2007 email from Pim Dubbeldam, who "heads up the copyright pod" within YouTube's content review department, identifying three videos of the same content, only two of which were the subject of a takedown notice, and noting that "[i]n order for the active video to be blocked, we need to receive a separate DMCA request from the content owner"). 8 1.32. YouTube has taken pains to make its notification system easy and efficient for copyright holders to use. Defs. Opening Mem. at p. 25 (citing Levine Decl. 17-18). Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Response Further controverted to the extent the alleged fact rests on inadmissible testimony in Levine Decl. 18. See Evid. Obj. at 14. Controverted, but immaterial to any issue before the Court. Plaintiffs deny Defendants' characterization of YouTube's CVP tool as "automatic" insofar as it implies that Defendants lack control over the process. Further, this tool was not available until March 2006 and was not specifically offered to Viacom until February 5, 2007. See Levine Decl. 18; Hohengarten Ex. 93, GOO00100751570, at GOO001-00751570. Further controverted to the extent the alleged fact rests on inadmissible testimony in Levine Decl. 18. See Evid. Obj. at 14. Controverted to the extent that the asserted fact suggests that Defendants terminate some users for infringing copyright fewer than three times. Defendants have proffered no evidence to support such an assertion. Uncontroverted to the extent that the asserted fact implies that Defendants sometimes terminate users for violations of the Terms of Service that do not involve copyright infringement. The asserted fact is immaterial to any issue currently before the Court. Uncontroverted but immaterial to any issue before the Court. 1.33. Early in its existence, YouTube created a first-of-its-kind automated tool that lets copyright holders click a button to send electronic DMCA notices directly to YouTube's agent. Defs. Opening Mem. at p. 25 (citing Levine Decl. 18). 1.34. [W]here YouTube determines that a particular user who has received fewer than three strikes is nonetheless flagrantly abusing the service's terms of use, YouTube terminates the account and removes all of the user's videos. Defs. Opening Mem. at p. 25 (citing Levine Decl. 30). 1.35. YouTube also sends an email message to any user whose videos are the subject of a takedown notice, giving the user an opportunity to challenge the notice . . . . Defs. Opening Mem. at p. 25 (citing Levine Decl. 23). 9 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.36. A computerized system [] tallies the number of strikes that each user's account receives. Defs. Opening Mem. at p. 25 (citing Levine Decl. 28). Response Controverted to the extent that the asserted fact implies that the system for tallying strikes does not involve human interaction by Defendants' employees. First, Defendants' employees designed the system for tallying strikes and have made continuous modifications to it over time. See Resp. to Defs. SUF 77-78. Second, Defendants' employees have substantial discretion in deciding whether strikes should be applied in particular cases. See, e.g., Levine Decl. 27-29; Kohlmann Ex. 48, GOO001-00515036 (noting that admin users had the option to "Reject & Strike (copyright)" or merely to "Reject (copyright)"); Kohlmann Ex. 9, GOO001-00515280 (same); Kohlmann Ex. 39, GOO001-06674342 ("Not to be obvious here, but [there is an] inconsistency in how we as an entity handle/decide strikes & suspensions per our users . . . too much random discretion is being used by us, thus the inconsistency"). Controverted. To the extent that Defendants are offering a conclusion about whether the standards-setting process described in the DMCA has occurred, they are offering an impermissible legal conclusion. Moreover this purported fact is not relevant to any issues before the Court. 1.37. The required standards-setting process [for the development of "standard technical measures"] has never occurred. Defs. Opening Mem. at p. 26. 10 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.38. The facts concerning how such videos come to be stored on YouTube's system, and what happens to them once they are there, are undisputed. Defs. Opening Mem. at p. 27 (citing Solomon Decl. 2-10). 2 YouTube operates a website located on the Internet at http://www.youtube.com, where users around the world can upload videos free of charge to computer servers owned or leased by YouTube. YouTube's systems are capable of simultaneously playing millions of these authorized, user uploaded videos at the same time to YouTube users around the world. The process of uploading a video to YouTube is initiated by YouTube users. As has always been the case since I began working on the YouTube service, the series of events that is triggered by a user's decision to upload a video to YouTube and ends with the user's video being made playable on YouTube is fully automated and does not involve the intervention or active involvement of YouTube personnel. Solomon Decl. 2. Response Controverted. See Resp. to Defs. SUF 16, 18, 19, and 20. 2 Defendants' Memorandum of Law asserts: "The facts concerning how such videos come to be stored on YouTube's system, and what happens to them once they are there, are undisputed." The allegedly undisputed facts Defendants reference are stated only in Mr. Solomon's declaration, not in Defendants' Memorandum of Law or Rule 56.1 Statement. For the Court's convenience, Viacom responds separately to Paragraph 2 of Mr. Solomon's declaration in this paragraph, and to Paragraphs 3-10 in 1.39-1.46, infra. 11 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.39. Before being able to upload a video to YouTube, a user must first register and create an account with the service. Once that onetime registration process has been completed and the user is signed-in to his YouTube account, the first step a user takes to upload a video involves navigating to the upload portion of the YouTube website. The user then selects a video file to upload to the YouTube system from the selection available on the user's personal computer, webcam, mobile phone, or other storage device, depending on how the user is accessing the service. Having selected the video he wishes to upload, the user then instructs the YouTube system to upload that video by clicking on a virtual upload "button." Solomon Decl. 3 (cited in Defs. Opening Mem. at p. 27, see supra n.1). 1.40. When a user uploads a video, the user also provides a title of his own making for the video and chooses "tags," or keywords, that the user believes describe the video. For instance, a surfing video might be tagged with "surfing," "water," and "waves," and be titled "Sarah's 30th Birthday." Like the title the user provides for the video, the choice of tags is completely up to the user. Similarly, the user selects a category from the broad selection of categories presented by the YouTube system that the user believes fits the uploaded video. The selection of category is entirely within the user's discretion. Solomon Decl. 4 (cited in Defs. Opening Mem. at p. 27, see supra n.1). Response Controverted to the extent that the asserted fact implies that YouTube plays no role in the video upload process. To the contrary, YouTube designed and controls every step of the upload process. See Resp. to Defs. SUF 16, 18-20. Controverted. Viacom does not dispute that, pursuant to the processes Defendants designed, users provide titles and tags for videos they upload, and that users choose to place those videos into categories chosen and provided by Defendants. But Viacom controverts Defendants' contention that providing a title or tags, or choosing categories, is "entirely within the user's discretion" or "completely up to the user." Defendants have carefully worded this factual statement, leaving out the fact that YouTube has required users to provide this information. See Viacom SUF 342; Hohengarten Ex. 344 (Liu Dep.) at 63:18-64:23. Defendants also omit that they have designed a system that suggests tags to users. See Kohlmann Ex. 90 (Screenshot of November 14, 2007 Official YouTube Blog post) (stating: "SUGGESTED TAGS You can choose from a set of new `suggested tags' when you upload or edit a video."). 12 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.41. I have confirmed that each one of the Uncontroverted. video clips at issue in this lawsuit was uploaded to YouTube by a user of the service in a process similar to the one I just described. Solomon Decl. 5 (cited in Defs. Opening Mem. at p. 27, see supra n.1). Response 1.42. YouTube users are able to upload video Controverted. See Resp. to Defs. SUF 19. files in a number of common and widely-used file formats, including Windows Media Video (WMV), .3GP, .AVI, .MOV, .MP4, .MPEG, and Flash (.FLV). Because most Internet browsers are not able to easily play video files in all of these formats, a user's video upload prompts the YouTube system to convert the user's video into the Flash file format, which is a more common file format that most Internet browsers can play. This conversion process is known as "transcoding," and it occurs automatically and without any human intervention. Solomon Decl. 6 (cited in Defs. Opening Mem. at p. 27, see supra n.1). 13 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.43. In light of the increasing popularity of using mobile phones and other consumer electronics devices to view Internet content, the YouTube system began allowing users to view videos from mobile phones and other consumer electronics devices, in addition to their personal computers. These devices typically have different file format requirements than personal computer-based Internet browsers and often cannot play Flash files. Using an automated transcoding process similar to the one used to convert useruploaded videos into Flash, the YouTube system now transcodes user-uploaded videos into several other file formats supported by a variety of viewing devices. One such example is the transcoding of user-uploaded video files into the H.264 format, which is playable on Apple's iPhone. Adopting new encoding formats is an example of YouTube's efforts to remain current and compatible with evolving technology, enabling the user uploaded videos it stores to be accessible to the largest number of users in the most efficient manner. Solomon Decl. 7 (cited in Defs. Opening Mem. at p. 27, see supra n.1). Response Controverted. Viacom does not dispute that YouTube's transcoding process creates transcoded copies in Flash format of videos uploaded to YouTube, though the use of the word "converts" is misleading, because the system in fact creates several new copies, see Viacom SUF 315-16. However, Viacom disputes that YouTube's transcoding process does so "[b]ecause most Internet browsers are not able to play video files in all of these formats." In fact, it does so because Defendants chose to design their system that way so that videos would "display[] nicely everywhere." Hohengarten Ex. 239, JK00008859. Further controverted that the process occurs automatically. See Resp. to Defs. SUF 19. 14 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.44. After a user uploaded video has been transcoded, the original video file and any transcodes are stored by YouTube on its network of computers and servers. As a part of this process, the YouTube system makes more than one copy of the stored version of the user's video files in order to increase the utility and reliability of the service for YouTube's users. This process also ensures that users' uploaded videos can remain playable in instances where any single storage device fails, and enables YouTube to efficiently distribute the load of storing millions of videos and speeding their playback in response to requests coming from users across the globe. Solomon Decl. 8 (cited in Defs. Opening Mem. at p. 27, see supra n.1). 1.45. Anyone with Internet access and standard Internet browsing software can view for free the videos that other users have stored on YouTube. As noted above, YouTube users can also access the YouTube service from mobile or other consumer electronics devices. Users initiate video playback of a YouTube video by visiting YouTube and selecting the video that they wish to view. Like the choice of whether and which video to upload to YouTube, the decision of which video to view is made entirely by the user. Solomon Decl. 9 (cited in Defs. Opening Mem. at p. 27, see supra n.1). Response Controverted to the extent that the reference to "the YouTube system" suggests that YouTube employees are not involved in deciding how many copies of videos should be made and stored by YouTube, and in what format. See Resp. to Defs. SUF 19. Further controverted to the extent that Defendants claim that making more copies of a video makes storing that video more "efficient." See infra 1.47. Controverted. As noted, "the videos that . . . users have stored" are not the videos that are viewable on YouTube. The transcoded copies that YouTube creates are viewable on YouTube. See Resp. to Defs. SUF 21. Further, while a user may choose which video to click, YouTube promotes particular videos in a variety of ways, including (but not limited to): (1) sorting videos into browse pages, see Viacom SUF 261, 333; (2) categorizing videos, see Viacom SUF 34142; (3) giving videos prominent placement on the site, including on its home page, see Viacom SUF 329, 331, 333; and (4) directing a user to videos that are "related" to a video on a watch page that a user views, which accounts for 58 percent of YouTube's video views, see Viacom SUF 334-36. 15 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.46. The YouTube system allows users to view videos stored on YouTube's servers through a process known as "streaming." The streamed files can begin playing on a user's computer before the complete video file has been fully transmitted. In response to a playback request, the YouTube system automatically streams a copy of the requested video from one of its video servers to the user's personal computer (or other device, such as an iPhone), where it plays for the user to watch. In almost all cases, YouTube prohibits users from downloading videos off the site, and does not offer that functionality to users. In the context of viewing YouTube videos on a personal computer, for example, streaming differs from downloading because during streaming a complete copy of the video being streamed is not stored on the end user's computer before viewing can begin. Solomon Decl. 10 (cited in Defs. Opening Mem. at p. 27, see supra n.1). 1.47. [D]uring the upload, storage, and playback processes, a certain number of copies of videos . . . are made to facilitate the efficient storage and viewing of usersubmitted videos. Defs. Opening Mem. at p. 27 (citing Solomon Decl. 6-8). Response Controverted. As stated in Viacom's response to 23-24 of Defendants' SUF, YouTube does create a full and durable copy of a video on a user's computer. Controverted as to Defendants' claim that YouTube's act of copying every uploaded video facilitates efficient storage. As Defendants also retain the original copy of these videos, see Viacom SUF 315, the claim that additional copies make the storage of the videos more efficient is nonsensical. Viacom does not controvert the fact that YouTube makes copies of all videos uploaded to its site in order to facilitate the viewing of these videos. Accord Viacom SUF 315, 316. 16 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.48. [D]uring the upload, storage, and playback processes, a certain number of copies of those videos are made automatically by operation of YouTube's system. Defs. Opening Mem. at p. 27 (citing Solomon Decl. 6-8). 1.49. YouTube employees have never even seen the overwhelming majority of the more than 500 million videos that have been posted to the service. Defs. Opening Mem. at p. 34 (citing Levine Decl. 28; Schaffer Decl. 11; Hurley Decl. 18). Response Controverted. See Resp. to Defs. SUF 16, 19, 23, 24. Controverted, as Levine Decl. 28 contains inadmissible generalized and conclusory statements and Hurley Decl. 18 contains inadmissible lay opinion testimony. See Evid. Obj. at 3, 15. However, the alleged fact is immaterial to any issues before the Court. Whether Defendants viewed most or all videos displayed on the YouTube site is irrelevant to Defendants' culpable intent under Grokster and the DMCA. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1021-22 (9th Cir. 2001). The alleged fact is also misleading. It is undisputed that, in YouTube's early days, YouTube's founders were among the top six most active viewers of videos on YouTube, having watched nearly 8,000 videos by August 2005. See Viacom SUF 51. Moreover, only two days before opposition papers were to be filed, Defendants produced non-anonymized YouTube viewing records for certain YouTube employee accounts. Although Defendants notably refused to produce any viewing records for YouTube cofounder Jawed Karim beyond October 2005, the newly produced data could show that YouTube's founders and other employees did know of and watch many specific infringing videos. The Viacom Plaintiffs have not yet been able to analyze this data. See Wilkens Decl. 20. 17 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.50. Ordinarily, therefore, no one at YouTube will know that a given video has been posted at all, let alone actively viewed that video. Defs. Opening Mem. at p. 34 (citing Levine Decl. 26; Schaffer Decl. 11; Hurley Decl. 18). Response Controverted. The cited evidence does not support the proposition. Paragraph 28 of Ms. Levine's declaration says only that YouTube tracks notices and administers strikes in an automated fashion. Paragraph 11 of Mr. Schaffer's declaration says that while YouTube did not review every video during his time at the company, it did "spot check" videos and remove content on behalf of several companies, but not Viacom. This demonstrates that YouTube was perfectly capable of using human review to police its site for copyright infringement when it chose to do so. Viacom SUF 272-273. Paragraph 18 of Mr. Hurley's declaration says--without any documentary support whatsoever--that screening videos was "not scalable and was ineffective in identifying unauthorized material," and that YouTube ceased screening "as a general matter." Moreover, YouTube's founders and early employees were among the most frequent watchers of YouTube videos during key periods relevant to the case. See Hohengarten Ex. 185. See also supra 1.49, infra 1.102. Moreover, the cited evidence is inadmissible, because Levine Decl. 26 contains generalized and conclusory statements and Hurley Decl. 18 contains improper lay opinion testimony. See Evid. Obj. at 3, 15. 18 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.51. Among Viacom's works in suit are: Call to Greatness, Distraction, Dog Bites Man, Gerhard Reinke's Wanderlust, The Hollow Men, Human Giant, Insomniac with Dave Attell, Noah's Arc, Premium Blend, Rob and Big, Run's House, Shorties Watchin' Shorties, Stardust, A Shot At Love, The Shot, Trick My Truck, True Life: I'm An Alcoholic, Viva Hollywood, Viva La Bam, The White Rapper Show, Wildboyz, and Wonder Showzen. Defs. Opening Mem. at p. 37 (footnote 11) (citing Rubin Decl. 117, 120). 1.52. [A] Viacom employee explained to The Wall Street Journal: "you almost can't find a better place than YouTube to promote your movie." Defs. Opening Mem. at p. 39-40 (citing Schapiro Exs. 23 at 3; 24 (70:16-71:24); Rubin Exs. 3, 9 (GOO001-01855886)). Uncontroverted. Response 1.53. [A]n MTV marketing executive described posting clips to YouTube as a "no brainer" and raved that the benefits of placing content on YouTube were "overwhelming." Defs. Opening Mem. at p. 40 (citing Schapiro Exs. 25 (43:17-22), 26). Controverted to the extent that the asserted fact is meant to suggest that Viacom favored the upload of infringing clips of its films and television shows to YouTube. In making the quoted statement, Andrew Lin, a former Paramount employee, was referring to two specially created marketing clips that he uploaded to YouTube with YouTube's assistance to the official YouTube accounts "ParamountClassics" and "ParamountVantage." Kohlmann Ex. 77 (Lin Dep.) at 76:18-77:15. In any event the alleged fact is immaterial to any issue before the Court. Controverted to the extent that the asserted fact is meant to suggest that MTV Networks favored the uploading of infringing clips of its programs to YouTube. The cited evidence does not support - and indeed controverts any such suggestion. Tina Exarhos, the MTV Networks marketing executive quoted in the alleged fact, testified that she was referring to the carefully selected trailers and other marketing clips that MTV Networks uploaded to YouTube as part of marketing campaigns. See Kohlmann Ex. 70 (Exarhos Dep.) at 44:4-45:10; 48:12-16; 50:13-17; 56:11-15; 105:4-24 ;165:11-15. In any event the alleged fact is immaterial to any issue before the Court. 19 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.54. [T]he filing of this lawsuit did not curtail [Viacom's] uploading of clips to YouTube. Defs. Opening Mem. at p. 40 (citing Rubin Decl. 2, 3 & Exs. 23-31, 60-66; Schapiro Ex. 27 (23:3-24:23)). 1.55. As one of Viacom's own marketing agents explains in a sworn declaration accompanying this motion, the "practice by viral marketers of using YouTube to promote music, television programs, and motion pictures is widespread." Response Uncontroverted but immaterial to any of the issues before the Court. Viacom is not suing YouTube for any clips that Viacom authorized to appear on YouTube. YouTube was fully aware of the vast majority of Viacom's uploading of authorized trailers and other marketing clips. See Resp. to Defs. SUF 123, 124. Controverted. Rubin Decl. 2, Ex. 2, and Exs. 32-41, Ostrow Decl. 6, and Chan Decl. 4 and 9 contain inadmissible evidence. See Evid. Obj. at 2, 5-7. Further controverted in that Defendants' characterization of Mr. Chan as Viacom's Defs. Opening Mem. at p. 40 (citing Ostrow agent is misleading. Mr. Chan is an employee Decl. 6; Chan Decl. 3, 4, 9; Rubin Decl. of Palisades Media Group, a company that 2 & Exs. 2, 32-41; Schapiro Ex. 28 briefly did marketing work for Viacom. Mr. (GOO001-05161257-58)). Chan submitted a declaration in this case at YouTube's behest, and as documents produced by Defendants show, Mr. Chan's relationship with Defendants has been a longstanding and close one. See Kohlmann Ex. 23, GOO001-01984461, Kohlmann Ex. 24, GOO001-02299635, Kohlmann Ex. 25, GOO001-02302174, Kohlmann Ex. 26, GOO001-02302195 (samples from extensive communications between YouTube and marketing company Palisades Media Group); see also Kohlmann Decl. 54. 1.56. Viacom sometimes places material on Uncontroverted that Viacom places material YouTube openly. on YouTube openly. Controverted to the extent that "sometimes" is meant to suggest Defs. Opening Mem. at p. 40 & n.14 (citing that Viacom uploads clips to YouTube in a Schapiro Exs. 29 (38:10-21), 30, 31 (26:20manner that conceals their origin from 27:10), 24 (22:11-22:20), 32 (151:17YouTube. See Resp. to Defs. SUF 123152:20)). 125. 1.57. Viacom and its agents use accounts that Controverted, to the extent it implies that lack any discernable connection to Viacom YouTube does not know that such accounts (such as "MysticalGirl8," "Demansr," are being used to upload authorized Viacom "tesderiw," "GossipGirl40," "Snackboard," content. For example, it is undisputed that and "Keithhn"). Viacom informed YouTube the following day that it had uploaded an authorized clip using 20 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Defs. Opening Mem. at p. 41 (citing Ostrow Decl. 6; Chan Decl. 4; Rubin Decl. 5(a)(f)). Response the account MysticalGirl8. See Kohlmann Ex. 84 (Wahtera Dep.) at 32:8-11. Further controverted to the extent that the asserted fact suggests that numerous clips of Viacom content were uploaded to these accounts. In total, 25 clips were uploaded to the six accounts identified in the asserted fact. See Wilkens Decl. 19(b). The asserted fact is immaterial to any issues before the Court. Further controverted as Ostrow Decl. 6 is inadmissible because it contains improper lay opinion testimony and is not based on personal knowledge, and as Chan Decl. 4 is inadmissible because it is not based on personal knowledge and because there is insufficient evidence to demonstrate its relevance. See Evid. Obj. at 2, 5-6. Controverted to the extent that the asserted fact implies that it was Viacom's general practice to upload clips using such accounts. The cited evidence shows that this practice occurred on one occasion and involved only one clip. Further controverted, to the extent that the asserted fact implies that Viacom's intent was to conceal the source of the uploads from YouTube, or that YouTube was unaware that the accounts were affiliated with Viacom. In fact, YouTube was well aware of the accounts and the clips uploaded to them. See Resp. to Defs. SUF 125; see also supra at 1.57. 1.58. Viacom has deliberately used email addresses that "can't be traced to [Viacom]" when registering for YouTube accounts. Defs. Opening Mem. at p. 41-42 (citing Schapiro Ex. 46, Rubin Exs. 22 & 26). 21 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.59. Viacom has used at least 18 separate firms to upload content to YouTube on its behalf: ICED Media, Special Ops Media, M80, WiredSet, New Media Strategies, Cornerstone Promotions, Fan2Band, Fanscape, Total Assault, Filter Creative Group, Carat, T3, BuzzFeed, ADD Marketing, TViral, Deep Focus, Red Interactive, and Palisades Media Group. Defs. Opening Mem. at p. 41 n.16 (citing Schapiro Exs. 36-45, Chan Decl. 3-4). 1.60. Viacom's employees have made special trips away from the company's premises (to places like Kinko's) to upload videos to YouTube from computers not traceable to Viacom. Defs. Opening Mem. at p. 42 (citing Schapiro Ex. 47 (158:20-22), Schapiro Exs. 48, 49). Response Controverted. At least as to New Media Strategies, T3, and BuzzFeed, the purported fact is not supported by the cited evidence. It is also immaterial to any issue before the Court. 1.61. Viacom has altered its own videos to make them appear stolen, like "footage from the cutting room floor, so users feel they have found something unique." Defs. Opening Mem. at p. 42 & n.17 (citing Rubin Ex. 4; Rubin Exs. 20, 14; Schapiro Ex. 50 (VIA10406143)). Controverted as well as immaterial. The cited evidence shows only that one Paramount employee, on one occasion, uploaded a video to YouTube from a Kinko's copy shop. It is undisputed that the Paramount employee did not attempt to hide the origin of the clip from YouTube, and that within a few days of the upload, Paramount informed YouTube that the upload was authorized. See Kohlmann Ex. 84 (Wahtera Dep.) at 32:8-11; see also supra at 1.57. Controverted as misleading, and in any event immaterial to any issues before the Court. None of the cited evidence refers to any content made to appear to YouTube as if it was "stolen," and none of the cited evidence even uses that word. To the contrary, the cited evidence refers to the use of outtakes footage from the cutting room floor to attract viewers, a practice that is common and hardly nefarious. In any event, Defendants were entirely capable of determining the origins of clips given their extensive communications with Viacom and third-party marketing companies. See Resp. to Defs. SUF 123-125. 22 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.62. Viacom has further obscured the line between authorized and unauthorized clips by broadly releasing various videos featuring its content. These videos are designed to spread virally over the Internet to generate publicity for Viacom's television shows and movies. When users post these videos, as Viacom hopes that they will, on sites like YouTube, Viacom acknowledges that their presence is authorized. Defs. Opening Mem. at p. 42 (citing Schapiro Ex. 27 (205:17-206:2) & (206:4-20)) (internal citation omitted). Response Controverted as misleading, and in any event immaterial to any issues before the Court. The "broadly releas[ed]" videos Defendants reference are trailers and other carefully selected marketing clips included in the Paramount "Electronic Press Kits" that are prepared for Paramount motion pictures. Kohlmann Ex. 83 (Tipton Dep.) at 16:5-16; see also id. at 28:5-7 (testifying that any distributed clips were approved "through the publicity team, through filmmakers, through the creative team, and through the interactive [team]"); Kohlmann Ex. 84 (Wahtera Dep.) at 101:9-10 (describing "EPK materials" as akin to "trailers"). There is no evidence to suggest that Paramount authorized the online distribution of any clips except these specifically chosen trailers and marketing clips. The evidence submitted by Defendants supports only the claim that 100 clips in suit closely resemble trailers and other marketing videos that Viacom authorized to appear on various websites as part of its marketing strategy. The fact that Viacom authorized a trailer to appear on one website does not mean that Viacom authorized the trailer to appear on YouTube. Further controverted because is Rubin Decl. 17 inadmissible as irrelevant. See Evid. Obj. at 7. 1.63. Viacom itself was confused . . . . when selecting its clips in suit, many of which turned out to be identical to Viacom's authorized promotional videos. Defs. Opening Mem. at p. 43 (citing Rubin Decl. 17). 23 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.64. YouTube knew that the promotional activities of which it was aware were just the tip of the iceberg, and that Viacom and a wide variety of major media companies were extensively using the service for promotional purposes without telling YouTube (or anyone else) what they were doing. Defs. Opening Mem. at p. 43 (citing Schaffer Decl. 6; Maxcy Decl. 3-7; Schapiro Ex. 53; Botha Decl. 11-12). Response Controverted. With respect to Viacom's marketing practices, the evidence shows that YouTube was aware of the overwhelming majority of Viacom clips authorized to appear on YouTube. See Wilkens Decl. 19; Resp. to Defs. SUF 123-125. With respect both to Viacom's practices and those of other "major media companies," this alleged fact is unsupported by admissible evidence. Despite the voluminous discovery in this case from Viacom and third parties, and despite their own analysis of the data that they maintain for every YouTube account and every YouTube video, Defendants have cited no evidence to support their "tip of the iceberg" claim, or to support the claim that they have been unaware of the authorized uploading activities of Viacom and other major media companies. See Resp. to Defs. SUF 123-125. Further controverted because some of the cited evidence is inadmissible. See Evid. Obj. at 1, 3, 9-12. Controverted as to "routinely." Defendants claim that YouTube has removed 4.7 million videos pursuant to takedown requests, see Levine Decl. 26, and the evidence Defendants cite shows fewer than a hundred mistaken takedowns of authorized content. Even if the number of mistakes was 50 times what Defendants have demonstrated, that would still represent only one tenth of one percent of the total takedowns of infringing material content owners have submitted to YouTube. Given the massive scale of infringement on the YouTube site and the problem content owners face in dealing with a site that refuses to take down infringing content unless it is identified specifically by URL, some mistakes are all but inevitable. Also controverted because Rubin Decl. 4 and Exs. 69-83 are inadmissible as hearsay. See Evid. Obj. at 7. 24 1.65. YouTube routinely received takedown requests that were subsequently withdrawn after the media companies who sent them realized that their notices had been targeted to content that they themselves had uploaded or authorized. Defs. Opening Mem. at p. 44 (citing Rubin Decl. 4 & Exs. 69-83). Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.66. [T]he former President of MTV candidly explained: "While we were issuing takedown notices against some of the content, there was other content which we were allowing to continue to be on YouTube." Defs. Opening Mem. at p. 45 (citing Schapiro Ex. 4 (194:8-11)). 1.67. Viacom's executives felt "very strongly that [they didn't] want to stop the colbert and daily clips" on YouTube. Defs. Opening Mem. at p. 46 (citing Schapiro Ex. 58 (VIA01676948)). Response Controverted. Viacom temporarily abstained from sending takedown notices for some infringing content while negotiating with YouTube regarding a potential licensing deal and compensation for past copyright infringement, but sent those notices when negotiations broke down. Viacom never authorized YouTube to display that infringing content. See Resp. to Defs. SUF 128. Uncontroverted that the one cited document, an email exchange between two Comedy Central executives, includes the quoted language. Controverted insofar as the alleged fact misleadingly suggests this was the view of Viacom as a whole. It is undisputed that Viacom did not authorize YouTube to display user uploaded clips from The Daily Show and The Colbert Report. See Resp. to Defs. SUF 128. Controverted. First, the cited evidence is inadmissible as it is not based on personal knowledge. See Evid. Obj. at 1. 1.68. The former President of MTV testified that Viacom did not want to take down "clips from Jon Stewart and Stephen Colbert" because "we were concerned that Jon Stewart and Stephen Colbert believed that their presence on YouTube was important for their ratings as well as for their relationship with their audience." Second, the purported fact is misleading insofar as Viacom did send takedown notices for content from The Daily Show and The Colbert Report during the fall of 2006, the period at issue in Mr. Wolf's testimony, and Defs. Opening Mem. at p. 46 (citing Schapiro temporarily abstained from sending takedown Ex. 4 (199:22-201:2)). notices for other infringing content while negotiating with Defendants regarding a licensing deal and compensation for past copyright infringement. See Resp. to Defs. SUF 128. 1.69. Accordingly, through at least October Controverted to the extent that the asserted 2006, Viacom had a specific internal policy of fact is intended to imply that during the declining to issue takedown notices for clips pendency of the parties licensing negotiations of [The Daily Show and The Colbert Report] in October 2006, Viacom authorized that were less than five minutes long. infringing content to appear on YouTube. See Resp. to Defs. SUF 128, 129-133. Defs. Opening Mem. at p. 46 (citing Schapiro Immaterial as to any issues before the Court. Exs. 59, 60). 25 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.70. Viacom later adjusted that rule and confidentially instructed its agent BayTSP to leave up all clips of these shows shorter than three minutes. Defs. Opening Mem. at p. 46 (citing Schapiro Exs. 59, 60). 1.71. Not only did Viacom apply its various leave-up rules to clips of the show, but one of Viacom's most senior executives publicly blessed users' practice of uploading clips from South Park to YouTube. Defs. Opening Mem. at p. 46 (citing Schapiro Ex. 61). Response Controverted and immaterial to any issue before the Court. See Resp. to Defs. SUF 129. Controverted. Viacom did not in fact authorize users to upload videos taken from South Park to YouTube, and it is undisputed that Viacom did not give YouTube an implied license for any user-uploaded clips from South Park or any other work in suit. Defendants' allegation to the contrary is unsupported by admissible evidence. The only statement Defendants cite suggesting that Viacom "publicly blessed" such uploads is a news report of an imprecise "passing comment" made by an MTV Networks executive on her way into an event. See (McGrath Dep.) at 256:19-21 ("A passing comment on the way into the dinner, I have no recollection of this."); id. at 259:4-6 ("I don't recall this at all, so I can't verify whether [the story] is accurate or inaccurate."). In her deposition, that executive clarified that, if she had made any comment about user uploads of South Park content to YouTube, it was only that Viacom was not currently issuing takedown notices for all user uploaded South Park clips "during a period when we [were] trying to do a deal to legitimately be compensated for the use of our content on YouTube," see Kohlmann Ex. 78 (McGrath Dep.) at 256:9-13, not that Viacom accepted or encouraged such infringing activity. See id. at 269:5-13 (testifying that YouTube was violating Viacom's copyright by displaying South Park clips at the time). Further controverted because Schapiro Ex. 61 is inadmissible hearsay. See Evid. Obj. at 1. 26 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.72. [I]n November 2006, when Viacom found 316 South Park clips on YouTube, it requested removal of only one, and chose to leave up or "pass on" the remaining 315. Defs. Opening Mem. at p. 46-47 (citing Schapiro Ex. 62 (BAYTSP001093518), Ex. 11 (134:19-136:10, 138:25-139:14)). 1.73. Viacom's confidential instructions to BayTSP about what to take down and what to leave up grew so detailed and complex that the Viacom employee responsible for overseeing the BayTSP relationship compared them to Crime and Punishment. Response Controverted to the extent that the asserted fact suggests that Viacom authorized any of the infringing clips to appear on YouTube. It is undisputed that the parties were in licensing negotiations at the time, and that Viacom did not give Defendants an express or implied license to exploit South Park or any other work. See Resp. to Defs. SUF 128. Controverted as misleading, in that the witness was referring to counsel's request that he recite from memory policies that were several years old, and that he was not responsible for at the time. See Schapiro Ex. 12 (83:6-84:8); Kohlmann Ex. 81 (Solow Dep.) at 286:16-21. Immaterial to any issues before the Court. See Viacom Resp. to Defs. SUF 130. Defs. Opening Mem. at p. 47 & n.19 (citing Schapiro Ex. 12 (83:6-84:8); Schapiro Exs. 63, 64, 65) (BAYTSP003718201). 1.74. Viacom came up with new rules every Controverted and immaterial. See Viacom few days--sometimes even changing the rules Resp. to Defs. SUF 128. Further, the within the same day. purported fact is misleading and inaccurate in its description of changes to the instructions. Defs. Opening Mem. at p. 47 (citing Schapiro For example, the evidence does not support Exs. 66-74). the proposition that Viacom changed the "rules" it provided to BayTSP within the same day. See Schapiro Exs. 73 & 74 (showing only that Viacom in one instance gave an instruction and then "clarified [a] misunderstanding" regarding that instruction). 27 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.75. Viacom even crafted marketing campaigns around its decisions to leave up certain user-posted videos. Defs. Opening Mem. at p. 47 (citing Rubin Ex. 28). Response Controverted and immaterial to any issues before the Court. Contrary to the misleading wording of the asserted fact, the evidence cited by Defendants pertains to a single decision not to remove from YouTube copies of the official trailer for one film, Cloverfield. As reflected in the cited document, Paramount had already released the official trailer in order to encourage viewers to see the full motion picture. See Rubin Ex. 28. Having released the trailer, Paramount decided not to issue takedown notices for copies of that specific marketing clip appearing on YouTube. There is no evidence that Viacom crafted a marketing campaign around pirated clips of the film itself, as Defendants suggest. Uncontroverted. 1.76. The vast majority of the takedown notices that YouTube receives are processed through this tool [CVP] and thus are removed within minutes. Defs. Opening Mem. at pp. 55-56 (citing Levine Decl. 19). 1.77. A number of the plaintiffs have signed up for YouTube's automated takedown tool and have used it for years to secure the removal of videos containing their content. Defs. Opening Mem. at p. 56 n.25 (citing Schapiro Exs. 17 (205:25-210:23), 105, 106, 107 (94:13-95:11), 108 (80:22-83:16, 84:816, 109). 1.78. Viacom's agent for sending takedown notices (BayTSP), has repeatedly acknowledged that YouTube makes it easy to send DMCA notices and that it removes the material identified quickly and effectively. Defs. Opening Mem. at pp. 56-57 (citing Schapiro Exs. 120, 121). Controverted to the extent that the asserted fact implies that the CVP tool assists copyright owners in locating infringing clips on YouTube, or that the CVP tool is an adequate means to prevent copyright infringement. See Resp. to Defs. SUF 92. Indeed, when YouTube offered CVP to Viacom in February 2007, YouTube at the same time refused to use digital fingerprinting technology to prevent infringement of Viacom's works absent a licensing deal. See, e.g., Viacom SUF 211, 214-217. Controverted to the extent that the asserted fact implies that YouTube adequately responds to all takedown notices. It is undisputed that Defendants refuse to respond to takedown notices that provide Defendants with "representative lists" of infringements. See Resp. to Defs. SUF 33. 28 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact 1.79. For months, Viacom had been accumulating these notices because it wanted, for strategic reasons, to send them all at one time. Defs. Opening Mem. at p. 57 (citing Schapiro Ex. 4 (149:4-25;195:9-196:14), Ex. 123, Ex. 124, Ex. 125). 1.80. It is not remotely the case that YouTube exists "solely to provide the site and facilities for copyright infringement." . . . Even the plaintiffs do not (and could not) suggest as much. Indeed, they have repeatedly acknowledged the contrary. Defs. Opening Mem. at p. 60 & n.28 (citing Schapiro Exs. 126, 127 (129:21-130:14), 128 (79:7-80:3, 81:17-24, 83:12-16, 84:14-18), 129 (215:25-218:8, 224:2-225:13), 130 (19:10-14, 55:21-24), 25 (253:10-19), 112 (16:19-25), 20 (100:12-103:9), 131, 78). 1.81. YouTube could not manually review the massive volume of videos uploaded to its site in an effort to determine what those videos are and whether they infringe plaintiffs' copyrights. Various witnesses unaffiliated with YouTube have recognized as much. Defs. Opening Mem. at p. 62 n.29 (citing Schapiro Exs. 132 (92:15-21), 133 (36:2337:16)). Response Controverted as misleading regarding Viacom's forbearance from enforcing its rights during the pendency of the parties' licensing negotiations. See Resp. to Defs. SUF 128. Irrelevant to any issues before the Court. Uncontroverted but immaterial to any issues before the Court. Defendants cannot claim protection under the DMCA safe harbor merely because their site had some legal functions. Controverted to the extent that the asserted fact suggests that YouTube was incapable of engaging in any manual review. Before Google acquired YouTube, Google's own video service manually reviewed each video uploaded to its service without difficulty, except of course that it was losing the war for traffic to YouTube. See Viacom SUF 134138. More broadly, rather than review every video, YouTube could have performed targeted review using various methods that YouTube considered and either never adopted or adopted only briefly, including community flagging for copyright infringement, reviewing videos with "hot tags," and reviewing videos close to ten minutes long. See Viacom SUF 63, 75-77, 131. Defendants' own documents show that they review millions of videos each year as part of their existing flagging system. See Hohengarten Ex. 13, GOO001-00044974, at GOO001-00044979 (May 2007 presentation noting that 19,000 flagged videos were 29 Subject to Protective Order HIGHLY CONFIDENTIAL Asserted Undisputed Fact Response reviewed per day). The cited testimony does not dispute that manual review could have played a meaningful role in YouTube's copyright protection efforts when combined with other techniques. Controverted and immaterial to any issue before the Court. The cited evidence does not show any connection between Viacom's marketing practices--of which YouTube was aware, see Resp. to Defs. SUF 125--and Viacom employees' ability to determine whether a clip infringes its copyrights. Furthermore, the cited evidence does not have any bearing on Defendants' culpable intent to infringe, or their ability to prevent infringement. Controverted to the extent Defendants imply that Viacom's communications with its monitoring agent have any bearing on Defendants' ability to distinguish infringing from non-infringing content. Viacom offered to work with Defendants to remove infringing content from the YouTube site, but Defendants rejected that offer and refused to take down videos

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