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

Filing 303

DECLARATION of Andrew H. Schapiro, Group 3, Exhibit 25 - 38 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.. (Attachments: # 1 Exhibit 39 - 45, # 2 Exhibit 46 - 59, # 3 Exhibit 60 - 63, # 4 Exhibit 64, Part 1, # 5 Exhibit 64, Part 2, # 6 Exhibit 65 - 68, # 7 Exhibit 69 - 77)(Schapiro, Andrew)

Schapiro Exhibit 39

Schapiro Exhibit 40

Schapiro Exhibit 41

Schapiro Exhibit 42

Schapiro Exhibit 43

From: Date: To: Subject:

Mickey Worsnup <[e-mail]> Mon, 05 Feb 2007 15:00:53-0800 "Powell, Amy - Paramounfj TF virals

Here are links to all three- not sure if they are the master links are not, a lot of duplicates on there (which is a good thing) http://www.youtube.com/watch?v=TayX61LLZrk http://www.youtube.com/watch?v=nosvMZS6ullc http://www.youtube.com/watch?v=ofEzT3ns-o0

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Schapiro Exhibit 44

From: Date: To:

"Fricklas, Michael" [e-mail]~
6 Feb 2007 20:20:25 -0500 "Morril, Mark" [e-mail]~, "Halle, Michelena" .. [e-mail]~, "Perry, Alfred - Paramount" .. [e-mail]~, "Martin, Scott - Paramount" .. ScotLMartin @ Paramount.com~
Tue,

Cc:
~

"Prentice, Rebecca - Paramount" [e-mail]
~, "Cahan, Adam" [e-mail]~

Subject: RE: Variety stories:Privileged and Confidential

This e-mail is confidential and may be privileged. If you receive it in error, please delete it and notify the sender of
the error. Thank you.

~ -----Original Message----~From: Morril, Mark
~Sent: Tuesday, February 06,20075:36 PM

~ To: Halle, Michelena; Perry, Alfred - Paramount; Martin, Scott - Paramount ~Cc: Prentice, Rebecca - Paramount; Cahan, Adam; Fricklas, Michael ~Subject: RE: Variety stories:Privileged and Confidential

~From: Halle, Michelena
~Sent: Tuesday, February 06, 20074:37 PM

~ To: Perry, Alfred - Paramount; Morril, Mark; Martin, Scott - Paramount ~Cc: Prentice, Rebecca - Paramount ~Subject: RE: Variety stories:Privileged and Confidential

l .. I
down.
~ ~ ~ ~

cl sand ro iding ip addresses to Bay so they know not to take them

~From: Perry, Alfred - Paramount
~Sent: Tuesday, February 06, 20074:08 PM

~ To: Morril, Mark; Martin, Scott - Paramount; Hallie, Michelena ~Cc: Prentice, Rebecca - Paramount ~Subject: FW: Variety stories:Privileged and Confidential

~Thanks.
~

~From: Powell, Amy - Paramount ~Sent: Tuesday, February 06, 2007 12:56 PM ~ To: Anderson, Jon - PPI ~Cc: Heath Tyldesley/pPI/MP/ParamounLPictures@ParamounLPictures; Perry, Alfred - Paramount ~Subject: RE: Variety stories

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~ ~Hi Jon, ~

~Great to see you too. I am cc'ing AI Perry who can give you more information re: the YouTube position.
~

~Thanks.
~ ~ ~

~Amy Powell
~Senior Vice President

~Interactive Marketing ~Paramount Pictures

~ ~

~From: Jon Anderson/PPI/MP/ParamounLPictures@PARAMOUNLPICTURES
~Sent: Monday, February 05, 2007 6:48 AM

~ To: Powell, Amy - Paramount ~Cc: Heath Tyldesley/PPI/M P/paramounLPictues@ParamounLPictues
~Subject: Fw: Variety stories
~

~HiAmy,
~

~Good to see you last week.
~

~Below is an article (scan down) on Youtube and Viacom's position.
~
~Can you clarify Paramount's position on dealing with Youtube at a local level- are we able to work with them if we are using our own approved material- or is this a blanket ruling that we should not be dealing with Youtube at all.

~
~Kind regards

~Jon
~----- Forwarded by Jon Anderson/pPI/MP/ParamounLPictures on 05/02/2007 14:45 ----~ ~ ~
~From:Jaakko Niemela ~05/02/2007 08:49

~To: ~cc:

~Subject: Variety stories
~ ~ ~ ~

~'Pursuit' shows Wil power overseas ~'Happyness' tops 'Museum,' 'Diamond' ~By DAVE MCNARY ..http://W.variety.com/index.asp?layout=bio&peopleID=1508~ ~Showing the worldwide drawing power of Wil Smith, "The Pursuit of Happyness" topped a healthy weekend at the

international box offce with $16 millon at 3,100 playdates in two dozen markets.
~"The Pursuit of Happyness" beat "Night at the Museum" and "Blood Diamond" by more than $2 milion in a threeway battle for the top slot. The race would have been far closer had many Brit chains not banished "Museum" due to Fox's decision to shorten the DVD release window, but "Pursuit" would have likely stil won. ~ The frame also saw "Casino Royale" continue to mint money overseas, thanks mostly to a boffo Chinese launch,

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while "Dreamgirls" posted a decent Brit launch but stumbled in its German debut. ~ ~"Pursuit" prevailed thanks to a combo of solid openings plus respectable holdover perfs as Sony took advantage of Smith's ongoing star power plus his Oscar nom. Best figures came from pic's second-place Spanish launch with $2.4 milion at 286; its Japanese soph sesh of $2.3 milion at 271, down 21%; its French launch of $2.2 million at 322, losing narrowly to the "Blood Diamond" debut; and its German second weekend with $1.7 milion at 521, off 19%. "Pursuit" also opened respectably in Mexico with $1.3 million at 300. ~Despite the Brit ban, "Night at the Museum" showed plenty of pop elsewhere with $13.5 milion at 4,500 in 50 markets, led by a socko first-place Italian launch of $4.7 milion at 536 and a solid Spanish soph sesh of $3.6 milion at 481, down 34%. ~But Brit biz nearly vanished for "Museum," plunging 87% to $274,000 at 190 in its sixth weekend as the number of locations -- including many top destinations -- dropped from 458 in the previous frame. "Museum" stil managed to hit the $40 milion mark in U.K. grosses, the leading overseas market for a pic that's cumed $212 milion internationally and $438 million worldwide. ~It was the first time in six seshes that "Night at the Museum" didn't top the foreign charts. ~Overall biz exceeded the same frame a year ago, when "Munich" led with $13.3 milion. ~Warner's "Blood Diamond" continued to turn up solid rather than spectacular overseas returns with $13.2 million from 3,200 prints in 51 markets, led by its first-place French opening of $2.5 millon at 459. ~"Blood Diamond," which opens next weekend in Mexico and Spain, has cumed $45.5 milion offshore and should go

well past the $54 milion domestic total.
~Sony's sturdy "Casino Royale" generated plenty of B.O. heat in its first six days in China with $6.9 millon at 468, including $4 million for the weekend as the first James Bond pic ever to play in that market. Weekend launch was the third best for a non-Chinese pic, trailing only those of "The Da Vinci Code" and "Harry Potter and the Goblet of Fire." ~"Casino" has cumed $416.8 million overseas and $582 milion worldwide -- No. 34 of all time. ~BVI kicked in an impressive launch in Germanic markets for local family comedy "Wild Bunch 4" with $5.5 millon at 700, including $4.7 millon at 600 in Germany, where it easily topped the "Saw ILL" opening with $3 milion at 439. ~"Rocky Balboa" continued to punch in decent numbers with $5.4 milion at 2,300 in 21 territories, led by its third Brit frame with $1.7 milion and its French so ph sesh of $1.5 million. The sixth "Rocky" pic has grossed $47 milion overseas and $116 milion worldwide. ~With its eight Oscar noms, Paramount's "Dreamgirls" doubled its foreign gross with $4.7 millon at 1,188 in 11 markets, led by a Brit launch of $2.5 millon at 271. ~"Babel," with seven Oscar noms, remained an international contributor with $3.6 million at 1,126 to lift foreign cume to nearly $59 milion. ~Fox's Brit launch of "Notes on a Scandal," with Oscar noms for Cate Blanchett and Judi Dench, nearly matched

"Dreamgirls" with $2.3 milion at 300 in its first foreign outing. And its "The Last King of Scotland" pulled in $1.4 millon at 378 in 15 markets to push foreign gross to $8.3 milion.
~Warner's 'The Departed" continued to shake down more foreign coin with $1.8 milion at 1,200 in 31 markets for a foreign cume of $142.4 milion and a worldwide total of $271 million. ~Fox saw "Apocalypto" grab $3.1 millon at 600, led by a South Korean launch of $1 millon at 157, while Warner's ~"Happy Feet" kicked up $2.8 milion at 2,700 for a foreign total of $165.2 milion. BVl's "Deja Vu" materialized with $2.5 millon at 1,857 to cross the $100 milion foreign mark -- the 11th Jerry Bruckheimer film to hit the milestone for
BVI. ~

~Scorsese wins at DGA Awards ~'Departed' director takes Feature Film prize ~Martin Scorsese has scored the top feature award from the Directors Guild of America for his work on Warner Bros.' gangster thriller "The Departed." ~ ~It was the first victory in seven DGA nominations for Scorsese, who topped Alejandro Gonzalez Inarritu for "Babel," Bil Condon for "Dreamgirls," Jonathan Dayton and Valerie Faris for "Little Miss Sunshine" and Stephen Frears for

"The Queen," ~"i just wanted to make a good film and people would go see it and enjopy the fim and God wiling I'd get another
picture and that's it," Scorsese told the audience of about 1,000 at the Centiury Plaza HoteL. "I did not think I'd be standing here tonight, I'll tel you that," ~ The award, presented by Steven Spielberg on Saturday night in ceremonies at the Century Plaza Hotel, places Scorsese as a front-runner for the Best Director Oscar. The DGA winner, based on voting by 13,400 Guild members,
has matched the Oscar winner in 52 of its 58 awards, including last year when Ang Lee won both for "Broke

back

Mountain." ~In his acceptance speech, Scorsese paid tribute to genre film directors such as Don Seigel, Samuel Fuller, Anthony

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Mann and Robert Aldrich. And he noted that the grosses were especially strong in such organized crime centers as Las Vegas and Boca Raton, Fla. ~Scorsese now faces Frears and Inarritu for the Oscar along with Clint Eastwood for "Letters From Iwo Jima" and Paul Greengrass for "United 93." It's his sixth Oscar directing nomination along with "Raging Bull," "The Last Temptation of Christ," "Good Fellas" "Gangs of New York" and "The Aviator." ~"The Departed" has taken in the highest gross among the nominated fims with $127 millon domestically and nearly $270 millon worldwide. Scorsese won the Golden Globe for Best director three weeks ago; since then, "Uttle Miss Sunshine" won both the top feature film awards from the PGA and SAG. ~Scorsese's previous DGA nominations were for 'The Aviator," "Gangs of New York," "The Age of Innocence,"

"Goodfellas," "Raging Bull" and 'Taxi Driver." He won the DGA's Ufetime Achievement Award in 2003. ~Richard Shepard won the DGA trophy for comedy series for ABC's pilot of "Ugly Bett- and Jon Cassar won the drama series award for Fox's "24." Rob Marshall took the musical variety award for NBC's "Tony Bennett: An American Classic" and Walter Hil won for TV movies for AMC's "Broken TraiL." ~Marshall won the DGA feature award four years ago for "Chicago" while Hil won the drama award two years ago for the "Deadwood pilot." ~Uthuianian filmmakter Arunas Matelis won for feature documentary award for "Before Flying Back to the Earth," centered on children hospitalized with leukemia, topping Oscar nominees, "Deliver Us From Evil" and "Iraq in

Fragments."
~

~YouTube to remove Viacom clips ~Conglom wants over lOOK videos taken down ~By BEN FRITZ .:http://ww.variety.com/index.asp?layout=bio&peopleID=1372~ ~ The simmering tension between Hollywood and the new Google/youTube combination exploded on Friday as Viacom demanded that the viral video giant take down every single clip of its copyrighted content after talks about a revenue sharing and distribution deal between the two companies broke down. ~ YouTube said it wil comply with the request, though it wil likely be a long process as Viacom identified more than 100,000 clips from MTV, Comedy Central, BET, Paramount, and its other propertes. ~After more than a year of tolerating huge amounts of its content being ilegally uploaded onto the site, Viacom is now issuing the massive legal takedown notice in an attempt to pressure Google and YouTube to bend its way in negotiations. Thus far, companies have been unable to reach terms on a formula to give Viacom a portion of the advertising money generated by its clips. ~ ~Conglom also expressed frustration that YouTube has not yet fully implemented a long-promised content identification system that would allow it to identif and automatically delete copyrighted clips, or let media partners share in the revenue from ads around the content they own, regardless of who posted it. ~Viacom apparently concluded that private talks wouldn't go its way and took the dispute public, issuing a hostile ~public statelent saying that Google and YouTube are "unwillng to come to a fair market agreement that would make

Viacom content available to YouTube users."
~While no other congloms are currently joining Viacom, all are in some stage of active negotiations wih YouTube and many are also believed to be frustrated by their inability to reach a deaL. ~AII are hoping to get a big payout from YouTube's new owner, Google, which bought the website for $1.65 billon last falL. Search giant ended 2006 with nearly $4 billon cash and has a market cap of close to $150 billon. ~In the meantime, however, all are passively allowing YouTube to keep up many clips of their content. By not issuing takedown notices, as Viacom did, they're demonstrating they think the video site has some promotional value, or that they don't want to alienate its users. ~Viacom previously had the same strategy. Even in October, when it asked the Netco to take down only about 10,000 of the longest clips of its shows, it allowed tens of thousands of shorter ones to stay online. ~News Corp., which has its own Web properties like MySpace and isn't as dependent on YouTube to distribute its content online, also hasn't been getting along well with the video site recently. Last week it demanded that YouTube not only take down episodes of "24" and "The Simpsons," but identify the users who uploaded them. ~If other traditional media companies aren't able to find common ground to forge an agreement with Google and YouTube, then there wil likely be more public disputes and takedown requests. ~In a worse case scenario, there could potentially be copyright infringement lawsuits, like those Universal Music already filed againt video websites Grouper and Bolt.com. ~"With the News Corp. issue and now this, you're seeing the first sparks of something that could ignite in the future," IDC research manager Rachel Happe said. ~Several big media congloms have also been talking about launching a YouTube competitor with all of their content pooled together. But insiders say that while the talks aren't dead, it's unlikely there wil be an agreement anytime

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soon.
~CBS is the only network to have pacted with YouTube, along with record labels Universal, Warner, and Sony BMG. ~However, all four agreements, reached in the fall, included YouTube rolling out the content identification system as a key provision. ~ Though it was promised by the end of last year, YouTube is stil working on deploying it. ~"Content identification architecture is not one single component, but rather a collection of tools for our partners, some of which are already in use," YouTube co-founder Chad Hurley told Daily Variety in a statement. "We wil continue to evolve these tools and roil out additional components over time." ~Big media execs have been increasingly friendly toward websites that are earning money off their content,

recognizing that ignoring or attacking them could alienate young consumers.
~In fact, Viacom itself even pacted with Google Video last summer for a test of an ad-supported video syndication

service.
~But it was clear that the seas between Hollywood and Silicon Valley may be getting choppy again in the two companies' public statements issued on Friday. ~"Filtering tools promised repeatedly by YouTube and Google have not been put in place, and they continue to host and stream vast amounts of unauthorized video," Sumner Redstone-led conglom said. "YouTube and Google retain all of the revenue generated from this practice, without extending fair compensation to the people who have expended all of the effort and cost to create it." ~ ~By the afternoon, YouTube shot back that "It's unfortunate that Viacom wil no longer be able to benefit from YouTube's passionate audience which has helped to promote many of Viacom's shows." ~Conglom noted that it has a broad array of Web properties that feature its content. However, none match the availabilty and ease-of-use of YouTube. ~MTV-owned IFilm, for instance, legally posts full episodes of shows like "The Colbert Report" and "Laguna Beach," but doesn't have nearly as many clips. In addition, YouTube users often cut up episodes to show only the exact moments that are most popular. ~

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Schapiro Exhibit 45