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

Filing 316

DECLARATION of Susan J. Kohlmann in Support 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 Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29)(Kohlmann, Susan)

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To: <j marsh @ google, com> From: Cc: Bcc: " "eFax Corporate" < "jmarsh @ google.com" Received Date: 2007-02-12 21:34:19 GMT Subject: Corporate eFax from 12126644733 - 7 page(s) You have received a 7 page fax at 2007-02-12 21:31:28 GMT. * The reference number for this fax is oakl didl 1-1171315701-65061 81833-1. Please visit https://www.efaxcorporate.com/corp/twa/page/customerSuppo=t if you have any questions regarding this message or your service. =ou may also e-mail our corporate support department at corporatesuppo=t@ mail.efax.com. service! Thank you for using the eFax Corporate Attachments: d0dca3l.pdf E~HIB\T~ O Highly ConfidentidL 600001-02826791 FEE-12-2007 17:16 From:M2BI Jr7~ NBC= ~bt~;Sef W Ib4a &P~e ts;~a~B~ RICHARD COTTON EXECUTIVEVICE PRESIDENT and GENERAL toUNS6L NBC UNIVERSAL, INC. 30 Rockefeller Plate, Ream 5249E New York, New York ~01~2 Phone: ~212) 664-7024 Fax: 1212) 664-4733 To: Mr. Dctvld Drummond fax: Telephone; Date: february 12, 2007 sheet: 2 Pages being sent including transmittal The information containedInthis Ccsimllemessa~e 16 c6nfidential inf6rm,2tion inlcnd~d\d ortlyfr~r Itse of me Indlvldwl e,ltih/ the or. r~unleQ at~ove.II Ulewcipientot tills~t~cyi~·nite message is not Ihe intendedrRclplent ~med obovo,o, the err,t,loyee agent as c~r I~cponsiblo dolivoi to mointol~dod to i! rcoipiont, i~dsheiuIlt·rt~t~y nulitied anydlssemlnali6n, #7at di8tributioncolsgny this or ol r:onlmc.miratinnstridly prohibited.Ifyou have cccclvcdthis oornmunicatIon error, please irnmwdiately is in notltyby tolephune,and mlurn Il~eotiainal tncu~apra It, Iw (II IhHHt,llvct RddmFiR. 711Rnk yo~~. Highly Confidentidl 600001-02826792 /7 W ~d= Bkr rrpW n ~nz a;nF~saIL, RICW~FI~HD CC3TTC)N Excicutlve ~hnd t~n*rc~l Vlcu Pruaidc~nt Ctn~lnEll rjg Mew 211 ~~7 liuchatallrr York MY I 'I~ 1011P tel lic~ GG~1 7021 fiFFiZ 4193 Februar.y 20Q7 12, WITHOUT PREJUDICE rick cottonS3nbcunl.c~m Via Fcrx and FedEx nuvid Kent Dr~un~rnoild Walker Senior Vice President, Corporate Development Vice President and General C;oc~nscl Googte, Inc. 1Ci00Amphltheatre Parkway Mountain Zahovoh View, California Lr-~vine 94043 General Counsel YouTube,lnc. and Vice President, t3usin~ss Affairs 1000 Cherry Ave. San Bruno, CA 94066 Re: NBC Univt·rsal/VouT~Ibe Deui Mr- Drummond, Mr. Walker and Ms. Lev~ne: I am writing to request your urgent attention, and prompt action on your pol-t, to address' the persistent infringement of NBC Universal ("NBCU") copyrighted content orl the YauTube. corn websitr?. Ar;discussed in greater detail below, tt~le status quo sintPlydoes not work as an ongoing proposition for conduct of husincss by our respective companies, ~ither Independently or in prospective partnerr;hip, and it must: change, We urgently request that YouTubeirnmediotelytake?all necessary steps, includingdeployment of a preventive filtering system for copyrigkted content across its platform, that willeff~ctivclyand pro-actively prevent the constant, endlessly repetitive appearance of wholesale amounts of Nf3CU copyrighted content on YouTube which NBCUhas not outhonzed, Highly Confidential 600001-02826793 David Drummond, et ol. February 12, 2007 Png~ 2 As you know, NBCU entered into a variety of agreements with YouTube has authar'ining the exhibition of a variety of NBGUcontent. 'Those arrangements have worked to our mutual benefit. What does not:work to our mutual b~ncfit - and indeed damages NBCU greatly and irreparobly - Is the constant appearance on the YouTube site of NBCUcontent that NRCU clotauthor·ized. NBCU hfls executives have repeatedly discussed with YouTube personnel the absolute need for YouTube to to ke pro-octive steps to screen o~Jt~lnauthoriz~d NBCU content,as opposedto its currentenunciatedpracticeof postingand exhibiting vast volumes of copyrighted material unless and until it receives a notice to remove it. In Voufube's situation, where it both knows of the iiuge volume of infringingmaterial and benefits financiallyfrom the traffic this illegalcontent drives to the site, it must do m01'~. Indeed, we write this letter now because YouTube has been stoting for months Lhut it woulddo more. Forinstance,YouTube publicly announcedthat "[b]y end of the year the [2006),"YouTubewould provide "s;ophisticatedtools to help content owners identifytheir content or~the site" and "[alutomoted audio identification technology to help prevent works previously removed from the site at the request of the copyr·ightowner from reappearing on the site." (Press Release, sept, zs, ZOOCi, <http-llyoutube.com/press_~oom_entrll7Cntry=Ct05EcMt2~M>.) YouTubehas not But provided such tools to prevent infringement. For'many months, NBCU been incurringthe burden and expense of reyularly has attempting to locate video clips from copyrighted works owned by NBtU entities and sending "takedown notices" to VouTube to remove from its site thousands of such clips. Vet, in what ilos becorrle an "everg reen" cycle of infringement, the same content frequently reappears on VouTubc'r; r,ite almost as quickly os it is removed. In addition, there is a constant stream of new unauthoti;red uploads of other NBCUworks that YouTube copies to its servers and displays. Each scenario offers fresh opportunities ~orYouPubeto ottract viewers and garner advertising income using NBCU'Scontent, without benefit of a license. Indeed, despite NBCU'5 substantial efforts at sending takedown notices on a daily basis, the Infringing clips on which NBCU sent notices in January zo07 alone had generated more tt~un28 millionpage views on YouTube. Afew concrete examples willdemonstrate why the status quo is untenable and why YnuTUbc'r;current system is wholly inpd~q unte to prevent continuous, to mpant infringement· Episode 1Zof'NBC'shit television program "Heroes"aired on _lonuory22. 2007. By no later than the next day, Yc~uTube began hosting and streaming at least three separate and complete copies of Episode 12, Althoughthese cl,ps were removed in response to NBCUnotic~ts, YouTube continued to host and stream complete copies of that same episode, os it was uploaded multiple times within that one week period alone, specifically on ~anuary 24, ~5, 26 and 29. Indeed, over the course of the same period, YouTubehosted and streamed complete copies of almost the entire season of "Meroef;"despite having received numerous prior notices of infringement concerning that title. Highly Confidential 600001-02826794 David Drummond, ct 61. Psye ~ Februory 12, ~007 · Universal Studios released the motion picture "American Pie 5. The Naked Mile" ("American for home videoon Decemb~r 2006. Bythe following Pie") 19, day, YouTube was hosting and streaming a complete copy of "Americon Pie'' in tweive seg ments. fhe YouTubesubscriber who uplotrded these videos toaged them simplyas "AP," presumablyto frustratecopyrightmonitoring based on keyward searches. Available filtering technology,whichdoes not depend on keywords, wouldhave been able to identifythis videobeforeit was uploaded. Ihe infringing "AmericanPie"videos have to date generated more than 1.5 millionpage views from YouTube's servers. Manyusers presumablyfoundthe videosthroughpirate linksites, such as Flickpeek,tom,which index complete n/ episodes and motion pictures available on Y~juTube elsewhere. Flickpeek,liker and many pirate sites, does not charge its users any fee but:rather generates revenuethroughGoog~e AdSense. In other words, YouTubeand Google are not only both generating revenue for themselves from the 1.5 millionplus views of "AmericanPie,"but ore also enabling pirate sites such as Ftickpeekto earn advertising income. At the same time, YouTube and GooglE ore providing no compensation to NBCUfor unouthoriz~d use of its content. · Alth~ughYouTubeclaims to terminate users who are repeat infrjngers, its policies end/or practices rcga rding repeat infringersare inadeq uate a nd go unimpl~m~nted. For example, "hakabish,"a user who has been the subject of mulhple notices, c6ntinu~s to upload complete episodes of "Heroes" as well as Warner Bros.'"Smallville." Indeed, the YouTubehome page for this user announces that he willupload "Weroes" every'Tuesday [the day after it airs an NBC) well as OS episodes of "Smallvllle"on Fridays. Haksbish has a Director's Account, which appears to allow him to exceed the 10-minute clip limit that YouTLibeclaims applies to regular user accounts. Hnkabish has indicated In comtnerlts readily viewable on YauTube that he may create a private channel on YouTube (viewable only upon invitationof the channel owner) to avoid monitoring by copyright owners. While we could continue to give examples illustrating the deficiencies of YouTube's current "notice-and-to kedown" processes, we think it best to quote a VouTuhe subscriber who posted the followingcomment ofter the removal of Episodes 1Z and 13 of "Meroes":"[Florgod SAKEsomeone efse UPLOAD AND 13 AGAINand if they tnke it oftSOMEONEELSEDO IT 12 AGAIN, they cant take it off the second u upload it FF5. USEURHEAD PEOPLE!" Regrettably, but unsurprisingly,VouTubecontinues to host and stream complete and unauthorized copies of Episodes 12 and 13 of "Heroes"even as of today. Indeed, its business model now seems designed to benefit from traffic generated by these infringements and thF!many thousonds more like them, For several reasons, we firmly believe that the DMCA affords Yol.lTube Foogle no and protectionunder these circumstances.You7ube's purportedstatus as a mere passive"sel-vire pr~ovider" offering"storaS]e the directionof a user'' is completelyeviscerat~ed its at by Highly ConfidentidL 600001-02826795 TtD~lt-CUUI 1I·1I TT'UIII·I'IC\IJI Duvid Dnlmmond. ~et01. PnOe 4 Fehrl~lnry12, 2007 employment of technology to copy, reformat and index the uplooded video on its servers for easier viewing, displayof; its advertisingalongsidethe videowhileit is viewed,its sortingof videos numerous into categories, itsdistribution the video, and of amongthe manyother active steps it takes to enhance its viewers' experience and draw them to its website. As such, VouTube responsible the massiveinfringements is for occurringon its ownsite,and its refusal to employs~st"msto preventthat infringement legallyindefensible. is Manymonthsof operatingexperiencehave conclusively demonstratedthat paper policies against infringement, combinedwitha "noticeand remove"system,are futilemeans to address the massiveamount of copyrightinfringement takingplace on YouTube. trail Th~s of experience unequivocally foraffirmative crrlts measures prevent to copyright infringement on Yourube usingavailable means,whether technological human.More or specifically, YouTube and shouldat a minimum con take the following steps: · YouTube shouldpromptlydeploy"~ngerprint"-bosed filtering technology, such as Audible Magic, screenalluplo~ded to videoagainsta databaseofcopyr.ighted works and preventuploadand/or displayof unauthorized video,both as to fullcopiesof worksand clippedexcerpts. Thecontent fingerprint database shouldbe popl.lloted overtime not onlyby NBCU other copyrightowners,but also by VouTube and itself usingvideoclipsthat VouTube removeddue to copyrightinfringement. has VouTube should work cooperatively with whichever technology vendor it selects, and with content owners,to finetune the filtering system and improveits p~rformonce, especiallyas hackersattempt:to circumventit. Again, willbe pleasedto work we cooperatively with you to that end, as we are doing with MySpac~~ which has announceda plan to rollout Audible Magicfiltering its site to preventcopyright on violations. In nddition to Audible Magic, we note that Philips, GraceNote ond cuba have all developedfiltering solutionsthat establishthe feasibility technologically of detecting and excluding unauthorired content. · Whilethe technological filteringsolution is being ramped up, YouTubeshould use human filteringto prevent uploading and/or display of video t~latis identifiableas copyrightedand unauthorized,justos It opparcntlydoes now for pornography. hate speech and other inappropriole material. · WhenYouTube receivesa takedownnoticeor otherwisc7~ obtairrsknowledge a clip of that has eludedthe filtering system, it: shouldimmediately removenot onlythe clip(~r fullwork)in question,but all other versionsor excerptsof the same copyrighted programming identified the notice, addition "hashing" "fingerprinting" in in to and the copyrightedworkto preventfuture unauthorizeduploadsos discussedabove, · Vou7ube shouldalso activelymonitorits site,including privatechannels,for additional unauthorizedcopiesat NBCU'5 copyrighredworksusingkeywards,tags, and other information provideto you,and removethem when they are locatedwithol.it we wbltirlg for 6 specific notice. Highly ConfidentidL 600001-02826796 TCP"IC-TU~II 1I·1I Tr`UIII·I'ICWI David Drumrr~ond, et al. February 1Z. 2007 Puge 5 · YouTubeshould notify users who have uplasded clips that ar'e subsequentlll removed, os well as those whose attempted upfotrdsore turned back by the filteringsystem, that their uploads violated copyright tow and YouTut~c'sown Terms oTUse, rather than just a notice assertir~g that the content has been removed at the request of the copyright owner. · You'Tube should immediately implement an effective system to terminate the user accounts of repeat infringers,includinga process for prevs~nting their r~subscl-iption under new user accounts. VouPube should Implement procedures to block the use of YouTubE to host "hiddcn" copyrighted content for pirate linksites such os Flickpeekdiscussed above. These procedures should include a means, such as a designated YouTubee-moil account, for copyright: owners to notify YouTube of such pirate link sites. We harbor no unrealistic expectations that such means would be 1006~ effective at all times, But we do expect implementation of available preventive steps to address wholesale in~r'ingements of this magnitude, especially because these infringements are rr d~rect by- productof the way vouTubeis designedto operate. Sincet~chnolog~cal mearlsare currently available to reduce radically the amount of infringingmaterial that reaches VouTubeusers, there is no excuse not to adopt th~m. Deployment of such preventive meostlres cannot be conditioned on first reaching a cclmmercialagreement. Other user-generated content sites bath large and small -- including MySpace, Revver a nd Guba - have taken significo nt steps to prevent copyright infringement on their sites without such a prerecluisite. Indeed. YouTube's commercial offer indicates that, as a technological matter, YouTubE is fully capable of identifying our copyrighted moter-ial on an oc.ltomotedbasis. But despite its previously declared intention to do more to prevent copyright infringement,YouTubenow seems to be taking the position that it willnot deploy such technology to meet legal obligation~, but will orlly offer it to copyright owners that submit to YouTube'scommercial demands. Whilewe are happy to work with you on the tcchnologicol and legal fronts in developing a filtering system that meets our respective needs and those of other content owners, meeting your legal obligations must be cornpfetely independent of any business discussions. In this connection, although much of this information is already available to you, as a first step in the process we will shortly provide you with a list of NBCU'scopyrighted works, as well as a list of the authorized user accounts from which NBCU content may be uploaded to YouTube. Each of those willbe a livingdocument that we intend to update regularly,and we expect that they will be used as part; of a preventive progrom. In the meontirne, we will continue to send takedown notices, but for the reosons discussed above that simply cannot be regarded as on acceptable solution to the current state of affairs. Highly ConfidentidL 600001-02826797 TCD`IT-TUW1 II·10 TI'UI11·I'IC~LII David Drurnmond, et al. Fcbrua~y 12. 2007 Poge b It is our sincere hope that both the business and filteringdiscussions can and will proceedtowarda commongoal of a mutuallybenefic~al businessrelationship recognizer; that the value and copyrighted nature of NBCU'scontent. Both of these discussions have now been ongoingfor extendedperiodsof time. Fromour point: view,we are quickl~ of approaching a crossroods. By the close of this week, we ask for the following.ii)a commitment planforrapiddepiocJment a systemand procedure pr.event and of to uplosdtng and display of unouthor·izedcontent, and, liilto the extent both pa rties seek to authorize substantial NBtU content on YouTube,an agreement in principleon a commercial deal that clearly delineates the scope and terms for carriage of such authotized NBC\~ content. I suggest we talk on Friday, February 16", to determine where we ore on both questions. Theforegoingis not intendedto be a completestatement of t~le facts, rightsor claims relatingto this matter. NBC Universal expresslyreservesall of its rights,claimsand remedies with respect to the! issues addressed in this letter. Sincerely, i~kt%t~ Richard Cotton cc: ~eff Zucker Beth Comstock Highly Confidential coo001-02826798

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