The Football Association Premier League Limited et al v. Youtube, Inc. et al

Filing 266

DECLARATION of Andrew H. Schapiro, Group 9, Exhibit 315 - 318 in Opposition re: 158 MOTION for Partial Summary Judgment dismissing with prejudice Defendants' First Defense asserted in Defendants' Answer to the Second Amended Class Action Complaint... Document filed by Google, Inc., Youtube, Inc., Youtube, LLC. (Attachments: # 1 Exhibit 319 - 335, # 2 Exhibit 336, Part 1, # 3 Exhibit 336, Part 2, # 4 Exhibit 336, Part 3, # 5 Exhibit 337 - 345, # 6 Exhibit 346 - 368, # 7 Exhibit 369 - 373)(Schapiro, Andrew)

Schapiro Exhibit 347

Schapiro Exhibit 349

Subject: RE: Checking in...
From:
To: Cc:
"Scott Roesch" ..EX:/O=ATOMSHOCKWAVE/OU=SAN FRANCISCO/CN= RECI PIENTS/CN=SROESCH~ Rosen, Andrew - Viacom
Date: Thu, 01 Feb 2007 22:39:40 +0000

Hey Andrew,
Yeah, we have been splitting up the moderating responsibilities ... customer support takes care of it during business hours but a few of us are tackling the early morning and late night shifts! We call it Porn Patrol.
It's not terrible but not the long term solution we all want. Any update on timing for Catalytic? Maybe we can touch base tomorrow or early next week.

From: Rosen, Andrew (mailto:[e-mail]

Sent Thursday, February 01, 2007 7:45 AM

To: Scott Roesch
Subject Checking in...

Scott,
Just wanted to see how you were coming along with the moderation solution. Learned from Dave at Shockwave that you have been getting up at 4am to moderate...
Let me know if you would like to discuss.
A
andrewa. rosen

global digital media group

mtv networks

t: 212.846.8862
f: 212.846.1854
(please note new number) e: [e-mail]

Highly Confidential

VIAO 1675542

Schapiro Exhibit 351

Schapiro Exhibit 355

From: Date: To: Cc:

"Rosen, Andrew" [e-mail]:: Tue, 20 Mar 200712:15:35 -0400 "Harrison, Blair - iFilm" [e-mail]::

"West, Denmark" [e-mail]::

Subject FW: MTV-UGC Addicting Clips Proposal
Blair,

Good running into you yesterday.

As per our brief conversation, attached is the Addicting Clips proposal from Catalytic.

Let's set up time to discuss. There is room to add other brands and allocate the $6,250/month fee across brands. The question is how iFilm could use Catalytic for moderation.
Would like to learn more from your end as to standards and practices issues you are now facing.
A

Ii
Regards,
Adam

Andrew A. Rosen
MTVNGDM

From: Adam Young (mailto:[e-mail] Sent: Sunday, March 18, 2007 9:45 PM To: Jackson, Brendan - Atom Entertainment Cc: [e-mail]; Rosen, Andrew; [e-mail] Subject MTV-UGC Addicting Clips Proposal
Dear Brendan,

Attached please find Catalytic's proposal for moderation of the Addicting Clips website. We are excited to get started on this project with your organization and are hopeful that its success wil lead to the broadening of this solution across multiple MTVN brands. Please contact me once you have reviewed the proposal to discuss any questions and next steps. I look forward to hearing from you shortly.

Adam Young

Catalyic Softare, Inc.
Mobile:

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system administrator [e-mail] ..http://na2.salesforce.com/se rvleVservlet.lmageServer?
oid=OOD 300000006AU R&esid=O 1840000005L6ZD::

List of attachments:

HIGHLY CONFIDENTIAL

VIA0070 1323

Catalytic~ddicting Clips ProposaL 070315-2.doc

HIGHLY CONFIDENTIAL

VIA0070 1324

UGC Moderation Program

March 2007

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UGC Moderation Program Proposal

Contact Information

Proposal Submitted to:

Andrew Rosen
MTV Networks

T: [phone]

Proposal Submitted by:
Adam Young
Sales Executive

Catalytic Software, Inc.
M:

E: [e-mail]

Date Submitted:
March 17, 2007

Confidential

@2007 Catalytic Software, Inc.

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UGC Moderation Program Proposal

Contents
1.0 Executive Summary ......................................................................................... ............................................. 4
1.1 Program Objectives...... ........ ............ .......................... ...... ...................... ...................... ...... ............... 4

1.2 Solution Key Points ...... ........ ................ ............................ ...................... ...................... .......... ........... 4

2.0 Addicting Clips Requirement .......................................................................................................................5
2.1 Existing Moderation Process.............................................................................................................5

3.0 Addicting Clips Solution...............................................................................................................................6
3.1 Service Description ...........................................................................................................................6 3.2 Service Level........................ ............ .......................... .................. .............................. .......... .............6 3.3 Reporting and Management........... .......................... ................ ........ ........ .................................. .....6

3.4 Resource Requirements ...................................................................................................................6
3.5 Getting Started ..... ........ ........ ........... ................... .......... ............ .................. ............ ............ ............... 6 3.6 Deployment.......................................................................................................................................7

3.7 Roster System...................................................................................................................................7
4.0 Implementation ..............................................................................................................................................9 4.1 Training.. ...... ...................................... ...... ........................ ............ .......................... ...................... .....9 4.2 Availability.......................................... ........................ ............................................ ............ ...............9 4.3 Work Flows .......................................................................................................................................9
5.0 Program Management................................................................................................................................. 10 5.1 Quarterly Business Reviews ................ ........................ .......... ...................................... ................... 10 5.2 Key Performance Indicators ............................................................................................................10 5.3 Retention .............................. ................ .............. .......... ............ .......................... .............................10

6.0 Scalability.....................................................................................................................................................12
7.0 Pricing ..........................................................................................................................................................13 7.1 Addicting Clips Solution ..................................................................................................................13 7.2 Terms..............................................................................................................................................13

7.3 Schedule.........................................................................................................................................13
8.0 About Catalytic Software ............................................................................................................................ 14
8.1 Our Focus .......................................................................................................................................14 8.2 Services and Solutions....................................................................................................................14 8.3 Infrastructure ...................................................................................................................................14 8.4 CMMI@Level 5 Quality Certified..................................................................................................... 15

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UGC Moderation Program Proposal

1.0 Executive Summary
Catalytic is pleased to submit this proposal to provide moderation services of user generated content uploaded to

web properties of MTV Networks. This proposal follows a study by Catalytic Software of two MTVN properties, iFilm
and Addicting Clips, both of which support uploading of user generated video files to branded websites. The findings
of that study indicate that a managed solution can bring immediate cost and quality benefits to Addicting Clips, as
well as offering economies of scale when leveraged across several MTVN brands.

1.1 Prog ram Objectives
Provide a process-driven 24*7 service to MTVN

· Uphold MTVN's DMCA compliance guidelines

· Manage processes, guidelines, and standards according to brand requirements
· Deliver value in terms of total ROI and management overhead

The proposed solution is a managed service with Catalytic assuming full delivery responsibility of the service. The
service is initiated and ramped according to an implementation process that is outlined in this proposaL.

1.2 Solution Key Points
Addicting Clips all inclusive monthly rate of $6,250, equivalent to an hourly rate of $8.56
· Phased approach: ramp Addicting Clips solution first then scale to other brands
Immediate night coverage for Addicting Clips; four weeks to full 24*7 service deployment
Services provided from Catalytic's delivery facility in India

· US-based program management; MTVN brands do not have to manage Indian time zones

Confidential

@ 2007 Catalytic Software, Inc.

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UGC Moderation Program Proposal

2.0

Addicting Clips Requirement
Immediate solution to address overnight (PST) drop in service

Full deployment within one month of start

Compliance with DMCA, brand guidelines, and common law

Turn-key solution that includes training, reporting, delivery, and standards compliance
Reduce costs by leveraging program across other brands

2.1 Existing Moderation Process

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UGC Moderation Program Proposal

3.0 Addicting Clips Solution

3.1 Service Description
· Pre-moderation of video and image files on www.addictingclips.com

· Remote delivery model

Continuous program using trained resources on a roster system

3.2 Service Level
~1 0 minute moderation process, from upload to posting

24*7 managed service

· Catalytic will deploy the resources and the quality processes required to meet service levels

3.3 Reporting and Management
· Clear documentation of moderation criteria, processes, and objectives · Weekly data report covering volumes, moderation times, issues
Monthly statistics report and data analysis

· Business manager located in the US - no need for Addicting Clips to coordinate with Indian time zones

3.4 Resource Requirements
· At current loads, total team size of 9 to enable a rotating two-week roster
· University educated resources with previous experience in IT enabled service industry
Experienced senior management

3.5 Getting Started
· Minimal disruption to existing moderation process

· Transfer existing process to Catalytic to manage
· Optimization planned over time

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@2007 Catalytic Software, Inc.

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UGC Moderation Program Proposal

3.6

Deployment

The Program will consist of an offsite Business Manager, housed at Catalytic's Seattle location, and an offshore team

housed at Catalytic's facility in India. The offshore team will be trained and managed by Catalytic's Seattle based
Business Manager, and communication between MTVN and Catalytic shall run through this resource. Catalytic has extensive experience supporting multi-site delivery, with time-sensitive services already being delivered

from India to multiple locations in Europe and North America. Catalytic understands that its team will be 'brought
online' independent of any other existing team or third party vendor, and we are confident that we can do this with
minimal disruption to Addicting Clips and other MTVN brands.
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3.7 Roster System
The roster system allows continuous coverage with a lower rate of attrition as resources are able to control their work

times to a great extent. It also covers sick leave, holiday leave, and scaling of teams without dropping service
The Addicting Clips solution will ensure one moderator is operational at any given time, with support from either the
offshore Project Manager or the Seattle based business manager.

Confidential

@ 2007 Catalytic Software, Inc.

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Shifts are 12 hours each and bridged by the offshore and offsite managers. Resources work three shifts one week
and four shifts the next for a 168 hour month.

Confidential

@2007 Catalytic Software, Inc.

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HIGHLY CONFIDENTIAL

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UGC Moderation Program Proposal

4.0 Implementation
Schedule
Week 1:

Management training
Process definition

Weeks 2-3:

Assumption of moderation services from 2100 - 0700 PST using test bed
Moderator hiring and training
Initial reporting

Week

4:

Full implementation

4.1

Training

Catalytic will conduct training as part of its implementation and ongoing managed service. The training program shall
cover topics such as the DMCA and DMCA compliance, tools and processes, service levels, reporting formats,

communication, client information and product, productivity expectations, and brand-specific guidelines.

4.2 Availabilty
The offshore team shall be 100% dedicated to the Program (i.e. no commitments to other Catalytic clients) and

retained on an ongoing basis.

4.3 Work Flows
MTVN will provide requirements to and discuss performance with Catalytic's Seattle based resource via email, phone

call or other established process. Escalation paths will also be via the Seattle based resource.

Confidential

@ 2007 Catalytic Software, Inc.

9

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5.0 Program Management
Catalytic has successfully implemented remote teams that function as an extension of the client's teams delivering

high value services. To ensure new programs benefit from our experience, Catalytic allocates a governance team

comprised of an executive sponsor, the account manager, and the delivery manager. A governance team is able to
make fast decisions, operate with authority, and ensure cohesive action across Catalytic's multiple sites. Governance teams regulate a program's quality compliance, act as an escalation point, and advocate on behalf of the

client within our own delivery group. Other activities of the Program governance team are:

· Risk identification and risk planning
Quarterly Business Reviews (QBRs)
. Client advocacy and issue resolution

· Drive program improvement and knowledge base creation

5.1 Quarterly Business Reviews
Catalytic conducts Quarterly Business Reviews in conjunction with the MTVN program owner to ascertain Catalytic's performance, identify knowledge gaps and any service issues, address any areas of concern, and plan for upcoming

requirements.

5.2 Key Performance Indicators
Catalytic will work with MTVN during the Program initiation to establish KPls. The KPls will be quantitative, easily
measurable, and reflect MTVN's productivity and quality expectations of the Catalytic Program. Catalytic will also
build KPls around skill acquisition and professional development based on the Competencies Roadmap. Once established, Catalytic will track these indicators and use them as a basis to continuously improve the quality

and value of its service. Tracking will occur on a weekly or monthly basis with full review during the QBR.

5.3 Retention
To ensure the retention of trained resources within the UGC Moderation Program, Catalytic has implemented the
following:

· Tiered team structures for career progression within the Program
· Performance bonuses

· Rotating rosters for late shifts and weekend work

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@ 2007 Catalytic Software, Inc.

10

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UGC Moderation Program Proposal

Annual performance reviews and bonus structure
· Option to live on-campus
. Long service benefits

Regardless of how good a retention strategy is, resources are people who for various reasons leave a company. To
manage attrition effectively, Catalytic incorporates a planned attrition rate for the team and manages training and

recruiting accordingly. For a team of 9 people working shifts and weekends on a continuous basis in an employee
market, we will assume an attrition rate of 25% or 3 resources per annum. Given the company's attrition rate of
between 12 and 15%, we believe we have accounted adequately for the anticipated attrition risks.

Confidential

@ 2007 Catalytic Software, Inc.

11

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UGC Moderation Program Proposal

6.0 Scalabilty
It is Catalytic's intent to provide a high quality service and expand the UGC Moderation program from Addicting Clips

to other MTVN brands. The solution uses already trained 'buffer' resources to seed teams around new brands
quickly, leveraging previous training and minimizing any impact on the team's overall productivity during periods of

expansion.
Our approach is to build a brand-specific knowledge base (KB) and cross-train moderators on two or three brands to

support a more flexible moderation solution that seamlessly adjusts to meet fluctuations in demand across the

different brands. This means that brands with smaller volumes pay only for what they use to meet their own service
level requirements.

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12

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UGC Moderation Program Proposal

7.0 Pricing

7.1 Addicting Clips Solution
Catalytic prices the Addicting Clips service at $6,250 per month all inclusive. This equates to an hourly rate of $8.56

per hour on volumes less than 400 uploads per day.
While Catalytic is only providing night time coverage (i.e. first calendar month) the fee will be $3,000 for service from
8pm PST - 8am PST.

7.2 Terms
Catalytic shall invoice one month in full on contract signing, to be applied as a credit on the contract's last scheduled

invoice.
From Program start, Catalytic will invoice monthly on the last day of the month for services rendered. Payment terms
are net 30 days from receipt of invoice.

7.3 Schedule
On contract signing:

$6,250

After ccmpletion of month 1:
Each month thereafter:
Final invoice:

$3,000 $6,250
($6,250) ¡credit back initial payment)

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@ 2007 Catalytic Software, Inc.

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8.0 About Catalytic Software
Today Catalytic provides turn-key delivery solutions to independent software vendors (ISVs) and technology-led

enterprises, and counts some of America's leading companies as customers. Companies like AOL, eBay, Sun
Microsystems, Agilent, and Countrywide have all benefited from Catalytic's ability to consistently provide value in a

competitive setting. In addition to large enterprises, we support a host of award-winning hi-tech start-ups,
successfully providing support for companies that previously found their complex technical requirements and
communication-intensive processes too great an obstacle to make outsourcing work.
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Boston and New York. Our successful track record is supported by New Oroville, our state-of-the-art delivery center
set on 50 acres in Hyderabad, India. New Oroville is the result of 2 years planning and construction, and provides
instant scalability and outstanding responsiveness for Catalytic customers.

8.1 Our Focus
Catalytic entered the software services landscape in 2000 with a vision of bringing cost-effective capacity to the US

software industry. Since then we have grown and expanded our service offering to become a true turn-key solution

provider, specializing in application development and support services for the Media and Entertainment industry.
Catalytic Software has successfully brought its experience working on consumer facing products and services to the
media and entertainment industry, offering one of the most easy-to-manage global delivery solutions available today.

8.2 Services and Solutions
Since 2000, the global delivery model has become an important and established business practice, used by hundreds

of American companies to achieve impressive cost savings. But most businesses benefit even more from a
combination of services, delivered locally and remotely, to achieve the kind of operational flexibility that they need. Catalytic offers a full range of flexible delivery options in a plug-and-play environment, and works with companies to

tailor the right mix to best meet their requirements.

8.3 Infrastructure
Catalytic's state-of-the-art delivery center in Hyderabad, India offers clients an unbeatable global delivery solution.

With over 100,000 s.f. of facility space and the ability to deploy resources onsite, offsite, and offshore, Catalytic's

global delivery model cuts across geographies to provide the right service, in the right place and at the right price. By

Confidential

@2007 Catalytic Software, Inc.

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UGC Moderation Program Proposal

selecting the most advantageous mix of resources worldwide, Catalytic can help you lower costs and boost your
business performance.

Forming the backbone of Catalytic's global infrastructure is New Oroville, the company's privately owned live/work

development facility in India. New Oroville emulates the Microsoft campus concept of a highly focused, specialized,
and streamlined technology environment. The campus is also a substantial investment by Catalytic to attract and
retain the best talent, provide watertight security, and reliable continuity of service for the benefit of our customers.

We have made our company campus, New Oroville, deliberately high profile to reassure you of where and under

what conditions your services are being delivered. The development is comprised of over 50 acres of land, and is
located within an Indian-government sponsored high technology park.

Key Features of the New Orovile Faciliy:
"100,000 s.f. facility space
"Live/work campus increases productivity and responsiveness of delivery teams "Secure and "always-on" service

"Fully controlled environment
"Easy and rapid scalability
"Custom-bonded facility for greater tax savings

"Reduces hidden costs of attrition, travel, time-zone management
"Quality that reflects favorably on your organization "Enhanced IP protection; independently secured domes

8.4 CMMI@ Level 5 Quality Certiied
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Catalytic is appraised at SEI Capability Maturity Model

Integration (CMMI) Level 5, the highest maturity rating a

company can obtain in software engineering process. In achieving Level 5, Catalytic joins the top tier of software
engineering service providers worldwide.

What it means for our customers:

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@ 2007 Catalytic Software, Inc.

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UGC Moderation Program Proposal

Improved process for requirements development

· More powerful design evaluation
. Enhanced quantitative project management techniques

Improved processes for verification and validation

More consistent delivery and predictable outcomes

Proven framework for continuous improvement

Confidential

@ 2007 Catalytic Software, Inc.

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Schapiro Exhibit 356

Schapiro Exhibit 357

Schapiro Exhibit 358

Schapiro Exhibit 359

Schapiro Exhibit 360

Redacted at the request of Plaintiffs pending a meet and confer and, if applicable, further action of the Court.

Schapiro Exhibit 361

Schapiro Exhibit 362

1

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HA RRI SON Ju ly of 200 1. It wa s m igr ati ng fr om a

ve nue fo r i nde pen den t s hor t f ilm ma ke rs to ha ve the ir wor ks hos ted an d p os ted to a por tal fo r a ll thi ngs to d o w ith mo vie s - - I sh oul d s ay, al l t hin gs to do wi th fil m. Q. I jus t w ant to es tab lis h

so me tim e f ram es. Wh en was iF ilm ac qui red by Vi aco m? A. Q. Oc tob er of 200 5. Pr ior to th e a cqu isi tio n by

Vi aco m, did iF ilm ha ve the ca pac ity t o ac cep t a nd dis pla y u ser -ge ner ate d co nte nt? A. No . Wel l, it had th e

ab ili ty to dis pla y a ny typ e o f v id eo. Bu t I th ink wh at you me an -- th e a nsw er is no . Q. Wh ere di d t he vid eos th at

iF ilm di spl aye d c ome fr om? A. st udi os. Th ey cam e f rom mo vie T hey ca me fro m r eco rd la bel s.

Th ey cam e f rom vi deo ga me pub lis her s.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10:36:33 10:36:23 10:36:15 10:35:45 10:35:31

HA RRI SON Th ey cam e f rom in dep end ent fi lmm ake rs. Th ey cam e f rom ma rke tin g/a dve rti sin g pa rtn ers . A f air ly bro ad set of

re lat ion shi ps tha t w e h ad. Q. An d w hen wa s a vi deo u plo ad

se rvi ce -- whe n, if eve r, was a vi deo up loa d s erv ice im ple men ted fo r i Fil m? A. 20 06. Q. Ho w d id the pu rch ase of I bel iev e i t w as Jan uar y of

iF ilm by Vi aco m c ome ab out ? MR . W ILK ENS : th e f orm . Q. Le t m e b rea k t hat do wn. iF ilm , a t s ome po int , w as ac qui red by Vi aco m, cor rec t? A. Q. Co rre ct. Wh at for m d id tha t Obj ect ion to

ac qui sit ion ta ke? A. I bel iev e i t w as a r ev ers e

tr ian gul ar mer ger . Q. Le t's ca ll it the

ac qui sit ion , i f t hat 's acc ept abl e t o yo u.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

Schapiro Exhibit 364

Redacted at the request of Defendants pending a meet and confer and, if applicable, further action of the Court.

Schapiro Exhibit 365

Redacted at the request of Plaintiffs pending a meet and confer and, if applicable, further action of the Court.

Schapiro Exhibit 366

User Generated Content Principles

Page 1 of 5

- - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---Related Releases
· sevenload Protects Professional Content Partners and User Generated Video · Sony Pictures Entertainment and Crackle Join Pioneering User-Generated Content Coalition · Internet and Media Industry Leaders Unveil Principles to Foster Online Innovation While Protecting Copyrights

Leading commercial copyright owners ("Copyright Owners") and services providing user-uploaded and user-generated audio and video content ("UGC Services") have collaborated to establish these Principles to foster an online environment that promotes the promises and benefits of UGC Services and protects the rights of Copyright Owners. In this context, UGC Services are services such as Soapbox on MSN Video, MySpace, Dailymotion and Veoh.com, and not other technologies such as browsers, applets, email, or search services. While we may differ in our interpretation of relevant laws, we do not mean to resolve those differences in these Principles, which are not intended to be and should not be construed as a concession or waiver with respect to any legal or policy position or as creating any legally binding rights or obligations. We recognize that no system for deterring infringement is or will be perfect. But, given the development of new content identification and filtering technologies, we are united in the belief that the Principles set out below, taken as a whole, strike a balance that, on a going-forward basis, will result in a more robust, content-rich online experience for all. In coming together around these Principles, Copyright Owners and UGC Services recognize that they share several important objectives: (1) the elimination of infringing content on UGC Services, (2) the encouragement of uploads of wholly original and authorized user-generated audio and video content, (3) the accommodation of fair use of copyrighted content on UGC Services, and (4) the protection of legitimate interests of user privacy. We believe that adhering to these Principles will help UGC Services and Copyright Owners achieve those objectives. 1. UGC Services should include in relevant and conspicuous places on their services information that promotes respect for intellectual property rights and discourages users from uploading infringing content. 2. During the upload process, UGC Services should prominently inform users that they may not upload infringing content and that, by uploading content, they affirm that such uploading complies with the UGC Service's terms of use. The terms of use for UGC Services should prohibit infringing uploads. 3. UGC Services should use effective content identification technology ("Identification Technology") with the goal of eliminating from their services all infringing user-uploaded audio and video content for which Copyright Owners have provided Reference Material (as described below). To that end and to the extent they have not already done so, by the end of 2007, UGC Services should fully implement commercially reasonable Identification Technology that is highly effective, in relation to other technologies commercially available at the time of implementation, in achieving the goal of eliminating infringing content. UGC Services should enhance or update the Identification Technology as commercially reasonable technology that makes a meaningful difference in achieving the goal becomes available. a. If a Copyright Owner has provided: (1) the reference data for content required to establish a match with user-uploaded content, (2) instructions regarding how matches should be treated, and (3) representations made in good faith that it possesses the appropriate rights regarding the content (collectively, "Reference Material"), then the UGC Service should apply the Identification Technology to that content to implement the Filtering Process described below. UGC Services should ensure that reasonable specifications, as well as any tools and/or technical support, for the delivery of Reference Material are made available to Copyright Owners. If a Copyright

------------The following companies support these principles:

http://www.ugcprinciples.com/

4/30/2010

User Generated Content Principles

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Owner does not include in the Reference Material instructions regarding how matches should be treated, the UGC Service should block content that matches the reference data. b. The Identification Technology should use Reference Material to identify user-uploaded audio and video content that matches the reference data and should permit Copyright Owners to indicate how matches should be treated. c. If the Copyright Owner indicates in the applicable Reference Material that it wishes to block user-uploaded content that matches the reference data, the UGC Service should use the Identification Technology to block such matching content before that content would otherwise be made available on its service ("Filtering Process"). The Copyright Owner may indicate in the applicable Reference Material that it wishes to exercise an alternative to blocking (such as allowing the content to be uploaded, licensing use of the content or other options), in which case, the UGC Service may follow those instructions or block the content, in its discretion. d. Copyright Owners and UGC Services should cooperate to ensure that the Identification Technology is implemented in a manner that effectively balances legitimate interests in (1) blocking infringing user-uploaded content, (2) allowing wholly original and authorized uploads, and (3) accommodating fair use. e. UGC Services should use the Identification Technology to block user-uploaded content that matches Reference Material regardless of whether the UGC Service has any licensing or other business relationship with the Copyright Owners who have provided such Reference Material (except that UGC Services may require that Copyright Owners enter into agreements with respect to the specifications for delivery of Reference Material that are commercially reasonable and that facilitate the provision of Reference Material by Copyright Owners and promote the goal of the elimination of infringing content). If a Copyright Owner authorizes specific users to upload content that would otherwise match Reference Material submitted by the Copyright Owner, the Copyright Owner should provide to the UGC Service a list of such users (a so-called white list). f. UGC Services may, at their option, utilize manual (human) review of all user-uploaded audio and video content in lieu of, or in addition to, use of Identification Technology, if feasible and if such review is as effective as Identification Technology in achieving the goal of eliminating infringing content. If a UGC Service utilizes such manual review, it should do so without regard to whether it has any licensing or other business relationship with the Copyright Owners. Copyright Owners and UGC Services should cooperate to ensure that such manual review is implemented in a manner that effectively balances legitimate interests in (1) blocking infringing user-uploaded content, (2) allowing wholly original and authorized uploads, and (3) accommodating fair use. g. Copyright Owners should provide Reference Material only with respect to content for which they believe in good faith that they have the appropriate rights to do so, and should update rights information as reasonable to keep it accurate. The inclusion of reference data for content by, or at the direction of, a Copyright Owner shall be deemed to be an implicit representation made in good faith that such Copyright Owner has the appropriate rights regarding such content. Copyright Owners should reasonably cooperate with UGC Services to avoid unduly stressing the Services' Identification Technology during limited periods when Copyright Owners, collectively, may be providing an overwhelmingly high volume of Reference Material. UGC Services should reasonably cooperate with Copyright Owners to ensure that such Reference Material is utilized by the Identification Technology as soon as possible during such overload periods. h. Promptly after implementation of Identification Technology, and at intervals that are reasonably timed throughout each year to achieve the goal of eliminating infringing content, UGC Services should use Identification Technology throughout their services to remove infringing content that was uploaded before Reference Material

http://www.ugcprinciples.com/

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pertaining to such content was provided.

i. Copyright Owners and UGC Services should cooperate in developing reasonable procedures for promptly addressing conflicting claims with respect to Reference Material and user claims that content that was blocked by the Filtering Process was not infringing or was blocked in error.

http://www.ugcprinciples.com/

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User Generated Content Principles

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4. UGC Services and Copyright Owners should work together to identify sites that are clearly dedicated to, and predominantly used for, the dissemination of infringing content or the facilitation of such dissemination. Upon determination by a UGC Service that a site is so dedicated and used, the UGC Service should remove or block the links to such sites. If the UGC Service is able to identify specific links that solely direct users to particular non-infringing content on such sites, the UGC Service may allow those links while blocking all other links. 5. UGC Services should provide commercially reasonable enhanced searching and identification means to Copyright Owners registered with a service in order: (a) to facilitate the ability of such Copyright Owners to locate infringing content in all areas of the UGC Service where useruploaded audio or video content is accessible, except those areas where content is made accessible to only a small number of users (not relative to the total number of users of the UGC Service), and (b) to send notices of infringement regarding such content. 6. When sending notices and making claims of infringement, Copyright Owners should accommodate fair use. 7. Copyright Owners should provide to UGC Services URLs identifying online locations where content that is the subject of notices of infringement is found ­ but only to the extent the UGC Service exposes such URLs.

8. When UGC Services remove content pursuant to a notice of infringement, the UGC Service should (a) do so expeditiously, (b) take reasonable steps to notify the person who uploaded the content, and (c) promptly after receipt of an effective counter-notification provide a copy of the counter-notification to the person who provided the original notice, and, at its option, replace the content if authorized by applicable law or agreement with the Copyright Owner. 9. When infringing content is removed by UGC Services in response to a notice from a Copyright Owner, the UGC Service should use reasonable efforts to notify the Copyright Owner of the removal, and should permit the Copyright Owner to provide, or request the UGC Service to provide on its behalf, reference data for such content to be used by the Identification Technology. 10. Consistent with applicable laws, including those directed to user privacy, UGC Services should retain for at least 60 days: (a) information related to user uploads of audio and video content to their services, including Internet Protocol addresses and time and date information for uploaded content; and (b) user-uploaded content that has been on their services but has been subsequently removed following a notice of infringement. UGC Services should provide that information and content to Copyright Owners as required by any valid process and consistent with applicable law. 11. UGC Services should use reasonable efforts to track infringing uploads of copyrighted content by the same user and should use such information in the reasonable implementation of a repeat infringer termination policy. UGC Services should use reasonable efforts to prevent a terminated user from uploading audio and/or video content following termination, such as blocking re-use of verified email addresses. 12. In engaging in the activities set forth in these Principles outside the United States, UGC Services and Copyright Owners should follow these Principles to the extent that doing so would not contravene the law of the applicable foreign jurisdiction. 13. Copyright Owners should not assert that adherence to these Principles, including efforts by UGC Services to locate or remove infringing content as provided by these Principles, or to replace content following receipt of an effective counter notification as provided in the Copyright Act, support disqualification from any limitation on direct or indirect liability relating to material online under the Copyright Act or substantively similar statutes of any applicable jurisdiction outside the United States.

http://www.ugcprinciples.com/

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User Generated Content Principles

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14. If a UGC Service adheres to all of these Principles in good faith, the Copyright Owner should not assert a claim of copyright infringement against such UGC Service with respect to infringing user-uploaded content that might remain on the UGC Service despite such adherence to these Principles. 15. Copyright Owners and UGC Services should continue to cooperate with each other's reasonable efforts to create content-rich, infringement-free services. To that end, Copyright Owners and UGC Services should cooperate in the testing of new content identification technologies and should update these Principles as commercially reasonable, informed by advances in technology, the incorporation of new features, variations in patterns of infringing conduct, changes in users' online activities and other appropriate circumstances.

------------------------------------------------ T op

http://www.ugcprinciples.com/

4/30/2010

Schapiro Exhibit 367

Redacted at the request of Defendants pending a meet and confer and, if applicable, further action of the Court.

Schapiro Exhibit 368

Redacted at the request of Plaintiffs pending a meet and confer and, if applicable, further action of the Court.