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

Filing 371

DECLARATION of ANDREW H. SCHAPIRO in Support re: 177 MOTION for Summary Judgment Regarding Applicability of the DMCA and on Plaintiffs' Inducement Claims.. Document filed by Youtube, Inc., Youtube, LLC, Google, Inc.. (Attachments: # 1 Exhibit 1 - 3, # 2 Exhibit 4 - 12, # 3 Exhibit 13 - 17, # 4 Exhibit 18 Part 1, # 5 Exhibit 18 Part 2, # 6 Exhibit 19 - 32, # 7 Exhibit 33 - 41, # 8 Exhibit 42 Part 1)(Schapiro, Andrew)

Schapiro Exhibit 19

Schapiro Exhibit 20

Schapiro Exhibit 21

Subject: Re: MTVN Weekly Report November 27 - December 03, 2006 From: "Cahan, Adam" ..EX:/O=VIACOM/OU=MTVUSNCN=RECIPIENTS/CN=CAHANA~ To: Halle, Michelena
Cc:
Date: Thu, 07 Dec 2006 15:33:35 +0000

Less than 130? I thought we were going to. 2:30.

-----Original Message-----

From: Halle, Michelena
To: Ashendorf, Sandy - MTVN; Bakish, Robert; Cahan, Adam; Cheeks, George; Dilon, Michelle; Dominguez, Chris iFilm; Ells, Gary; Fahey-Rush, Colleen; Fricklas, Michael; Gonlock, Brian; Harrison, Blair - iFilm; Herzog, Doug; Hurvitz, Lauren; Jackson, Genise; Kim, Clara; Manhews, Beth; Salmi, Mika; Moosnick, Heather - MTVN; Morril, Mark; Robinson, Carole; Shapiro, Andra; Simon, Joe; Sussman, David; Sutphen, David; Weinstein, Caleb; Wen, Pauline; West, Joella; Wiliams, Reggie; Wolf, Michael

Sent: Thu Dec 07 09:51:32 2006
Subject: FW: MTVN Weekly Report November 27 - December 03, 2006
PRIVILEGED AND CONFIDENTIAL

- 1665 of the clips retrieved on youtube were smaller than our criteria and therefore not taken down. 435 of those
were South Park. It is difficult to reconcile this number with the information on the size of clips because they were collected at different times, but it appears that the majority of those not taken down were probably less than 1:30

minutes.

- There were ¡iewer hits and 3,300,935 on those not taken down.

As always, call or email with questions.

Michelena Halle

Confidential

Senior Vice President Deputy General Counsel, Intellectual Propert MTV Networks, Business and Legal Affairs 1515 Broadway, 34th Floor New York, New York 10036

From: Deana Arizala (mailto:[e-mail])
Sent: Wednesday, December 06,20065:19 PM

To: Halle, Michelena
Cc: Mark M. Ishikawa; Courtney Nieman; Evelyn Espinosa; Morales, Cindy; Sarah Cruz Subject: MTVN Weekly Report November 27 - December 03, 2006

Michelena,
Enclosed is the November 27 - December 03,2006 Weekly Report. I will be out of the offce at 3PM (PST) today,

VIA 11787337

so you if you have any question please redirect them to Courtney Nieman.
Thank you.
Best Regards,

Deana Arizala

Deana Arizala Client Services Manager. BayTSP, Inc

408.341.365 (direct) 408.341.300 (voice) 408.341.399 (fax)

Confidential

VIA 11787338

Schapiro Exhibit 22

Schapiro Exhibit 23

From: Date:
To:

"Worsnup, Mickey - Paramount" [e-mail]:: Thu, 21: Jun 2007 16:32:29 -0700

"Powell, Amy - Paramount" , "Teifeld,
Tamar - Paramount" [e-mail]::, "Chiang, Cat - Paramount" [e-mail]::, "Tipton, Kristina Paramount" [e-mail]::

Subject:

Re: Transformers

These are all legit. The first one is from someone just compiled all our TV spots and trailers and made their own music video....its actually good, we should turn a blind eye.
I think KT said the rest of them are just EPK clips.

On 6/21/074:21 PM, "Powell, Amy - Paramount"

wrote:

----- Original Message ----From: Courtney Nieman [e-mail]::
To: Perry, Alfred - Paramount; Powell, Amy - Paramount
Cc: Mark M. Ishikawa [e-mail]::; Evelyn Espinosa [e-mail]::; Warren Kim

[e-mail]:: Sent: Thu Jun 2116:19:47 2007
Subject: FW: Transformers

We found these just a short time ago. I have asked Blair to send take down notices on them. They
don't look like teasers or trailers. Many scenes I haven't picked up on before. Let me know if you want me to stop the take down notices.
Courtney Nieman

From: Blair Taylor Sent: Thursday, June 21,20074:10 PM To: Warren Kim; Courtney Nieman

Subject: Transformers
yugiohtcgcollector02
http://www.youtube.com/watch ?v= 5G8Tcms6xQk
http://www.youtube.com/watch ?v= 3v1N UJze4nl

http://www.youtube.com/watch ?v= rSVdjKXmVDo http://www.youtube.com/watch ?v=VG30jK41Q8E http://www.youtube.com/watch ?v=fyCNSWALU6k http://www.youtube.com/watch ?v=wZRELOQN-HQ
http://www.youtube.com/watch ?v=wxxn IIc5K_g

http://www.youtube.com/watch ?v= RDPGh6hsWOg
http://www.youtube.com/watch ?v= Esyyx1i l_nQ

This user has all the above clips on YouTube. To me they do not appear to be parts of the trailer.

Please advise~
Thanks
b

Blair Taylor

Highly Confidential

VIA 12077787

Client Services Support

BayTSP, Inc

[e-mail]

408.341.2300

The information contained in this email message may be confidential and
is intended only for the parties to whom it is addressed. If you are not
the intended recipient or an agent of same, please notify us of the
mistake by telephone or email and delete the message from your system.

Please do not copy the message or distribute it to anyone.

Highly Confidential

VIA 12077788

Schapiro Exhibit 24

From: Date:
To:

"Fricklas, Michael" -:[e-mail]~

Tue, 6 Feb 2007 22:35:14 -0500
"Ann Brick" -:[e-mail] ~
RE: YouTube Take-Down Notices

Subject:

I've attached a short letter that I hope is helpful in answering your questions.
Please feel free to contact us if you have any more questions. There is a lot of misinformation travelling around the blogs!
Mike Fricklas

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: Ann Brick (mailto:[e-mail])
Sent: Tuesday, February 06,20072:52 PM
To: Fricklas, Michael

Subject: YouTube Take-Down Notices
Please see attached.

Ann Brick Staff Attorney ACLU of Northern California

39 Drumm Street San Francisco, CA. 94111 [phone]
We've moved! Our new address is 39 Drumm Street, San Francisco, CA. 94111. Phone, fax, and

email remain the same.
This message and any files or text attached to it are intended only for the recipients named above, and contain information that may be confidential or privileged. If you are not an intended

recipient, you must not read, copy, use or disclose this communication. Please also notify the sender
by replying to this message, and then delete ail copies of it from your system. Thank you.
List of attachments:

acluresponse.pdf

Confidential

VIA02074233

~
EEl' Networks ~ Famous Music' MTV Networks, Paramount Pictures

Michael O. fr!cklas

Exeo.lüve Vice President

G('meri~! Counsel and Secretary

F cbruary 6, 2007

Ann Brick StaffA ttorncy Nicole Ozer Tcchnology and Civil Libertics Policy Dircctor American Civil Liberties Union Foundation of Northern California 39 Drumm Street San Francisco, CA 94111

Dear Ms. Brick and Ms. Ozcr:

Thank you for your lettcr of earlier today and for the opportunity to respond to your
concerns. There is much misinfonnation circulating and we appreciate the opportunity to
explain what 'we've done.

In fact, at substantial cost, everyone of the over 100,000 clips was identificd through filtering followed by a review of cach clip by a member of our team to ensure that the content was Viacom's and ,vas infringing. For the purpose of ths takedo,vn, wc took a very

conservative approach and gave clear direction to all viewers of clips that they include only
those that constitute clear infringements. Nearly all of these wcre taken 100% from our

networks and motion picturcs without the additional of any new creative materiaL. There are
many, many clips that use material from our shows and movies that have not been removed

because it is possible that there could be a fair use claim and we did not have the resources
to do the analysis. I do not have the precise numbers, but it is estimated that over a million

clips were viewed in the process of preparing for the takedown. To see a few of the clips we did not take down, search on "Jon Stcwart" or "South Park" and scc the clips that remain.
\XTe are very familiar with the doctrines of parody, political commentary and criticism and the

way they relate to the use of copyrighted materiaL. In fact, Viacom relies upon the law in these areas regularly. Watch nearly any episode of South Park, The Daily Show with Jon Stcwart or the Colbert Report and you wil see how our artists draw from copyrighted works
in legitimate ways for legitimate purposes. We believe strongly in the first amendment and

have worked closely with the ACLU in the area on many occasions.

~ti~E, ~h'(;..d~":;;:~~;.' ~~0\'/ ~l::~d( :~ NV' ~~J;.'.:~~ TG,;.

¡:"" .' _ L''1;,;i, mk:~'ë",!h¡d'-"'~(;'''¡''';t'm.c~'~;;

Confidential

VIA02074234

It is true that some identification errors were made, but we understand those errors to be under .1 % of the total number of takedowns and therefore an even smaller percentage of the number of dips reviewed. \XTe have asked YouTube to reinstate every erroneous message as it. We wish these crrors didn't occur, but as you can see we soon as we become aware of were confronted \vith a truly Hercuiean task in demanding the removal of our copyrighted works.
Regrettably, YouTube has allowed itself to be turned not only into a forum for illegal
consumption and sharing of copyrighted material, but it has decided to capture for itself the revenue from advertising to users while they watch and upload. We are insisting that

YouTube respect the rights of authors, composers, singers, actors, producers and distributors of creative works by refusing to allow its website to be used for this behavior
and by insisting that it apply reasonable efforts to \veed out apparently copyrighted materiaL. \'Ve believe YouTube can't hide behind the "we don't know it's there" defense YouTube

already weeds out other material that it deems offensive, such as content with nudity or hate
speech. In fact, you may be aware that Y ouTube recently admitted that it can filter, but tl1at

it will implement fitering only for content owners WllO agree to do a business deaL. This "if you don't sell it, we'll take it" approach clearly exposes YouTubc's inability to assert the DMCA defense as Y ouTube has admitted that it has the ability to control its site and the right to do so, but refuses unless it is paid. It is a shame that we have had to incur the
substantial expense to protect the rights of Viacom and our artists while Y ouTube

irresponsibly benefits from the business model it has created.
Again, thanks for thc opportunity ~ you have any further questions please do

not hesitate to call Mark :Morril at __ Michelena Hallie at _ or me.
Very truly yours,

Michael D. Fricklas

Confidential

VIA02074235

Schapiro Exhibit 25

Schapiro Exhibit 26

Schapiro Exhibit 27

Schapiro Exhibit 28

Schapiro Exhibit 29

Schapiro Exhibit 30

From: [e-mail]
Sent: Friday, December 15, 2006 5:38 PM

To: Deana Arizala; Courtney Nieman
Cc: Morales, Cindy; Weinstein, Caleb
Subject: Fw: Bay Tsp Weekly Report December 04 - 10,2006

Please stop taking down Comedy Cemral Presents clips immediately
-----Ongmal Message-----

From: Weinstein, Caleb To Hallie, Michelena CC: Morales, Cindy; Lathan, Lucy Sent: Fri Dec 1512:18:512006
Subject: RE: Bay Tsp Weekly Report December 04 - 10,2006

Hi-

I didn't realize we were screening for CCP. We should stop pulling down for Comedy Central Presents as 1 believe we are most likely pulling elips dOlvn hom the my spaee pages of the eomedians who peifOlmed on the show.

Thanks,

Caleb

ealeb. weinstein(Q)mtvn. com

Offce: [phone]

From Hallie, Micheleiia Scnt: Thursday, Dcccmbcr 14, 200610:37 AM To: Ioannou, Sofia; Ashendorf, Sandy - MTVN; Bakish, Robert; Cahan, Adam; Cheeks, George; Dillon, Michelle; Dominguez, Chris - iFilm; Ellis, Gary; Fahey-Rush, Colleen; Fricklas, Michael; Gottlock, Brian; Hanison, Blair - iFilm; Herzog, Doug: Hurvitz, Lauren; Jackson, Genise; Kim, Clara; Matthews, Beth; Salmi, lvika; Moosnick, Heather - MTVN; Morril, Mark, Robinson, Carole; Shapiro, Andra; Simon, Joe; Sussman, David; Sutphen, David; Weinstein, Caleb; Wen, Pauline; West, .1oella; Williams, Reggie; Wolf, Michael
Subject: Bay Tsp Weekly Report December 04 - 10,2006

PRIVILEGED AND CONFIDENTIAL

Attachcd is th1s wcck's report on Bay's intemet aetivitics. Highlights:

- 784 clips were taken down oIT youtube. 155 were Chappelle Show (a recent addition to the list so the clips removed included relatively old
ones) and 69 were The Daily Show.

- 336 were taken down off myspace. There is no clear "favorite" on myspace, but 30 clips hom Celebiity Death Match, 45 from Comedy

Central Presents, 32 from Degnissi and 35 from South Park, were removed.

- The reporl now indiides numbers uf clips ü.iund un P2P siles by lellilory (p:lgeI6). Tliuiigli we du nul I;ike duwn ihese clips since ihey i1re nol covered under the DMCA, 1 thought this may be of some assistance 10 intemational marketing and resctirch. If there is addiiional infoimatiou that may be helpful to yeur group, please lei me lmow and I'll see 11' we can gather it.

6/13/2008
HIGHLY CONFIDENTIAL
BAYTSP 004342189

As always, call or email with any qucstions.

Michelena Hallie
Senior Vice President

-

Dcputy Gcncral Counsel, Intcllcctual Propcrty MTV Networks, Business and Legal Affairs 1515 Broadway, 34th Floor New York, New York 100%

6/13/2008
HIGHLY CONFIDENTIAL
BAYTSP 004342190

Schapiro Exhibit 31

Schapiro Exhibit 32