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

Filing 276

DECLARATION of Elizabeth Anne Figueira, Esq. in Opposition re: 167 MOTION for Summary Judgment.. Document filed by The Music Force LLC, Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., The Football Association Premier League Limited, Robert Tur, National Music Publishers' Association, The Rodgers & Hammerstein Organization, Edward B. Marks Music Company, Freddy Bienstock Music Company, Alley Music Corporation, X-Ray Dog Music, Inc., Federation Francaise De Tennis, The Scottish Premier League Limited, The Music Force Media Group LLC, Sin-Drome Records, Ltd., Murbo Music Publishing, Inc., Stage Three Music (US), Inc., Bourne Co.. (Attachments: # 1 Exhibit 189, # 2 Exhibit 190, # 3 Exhibit 191, # 4 Exhibit 192, # 5 Exhibit 193, # 6 Exhibit 194, # 7 Exhibit 195, # 8 Exhibit 196, # 9 Exhibit 197, # 10 Exhibit 198, # 11 Exhibit 199, # 12 Exhibit 200, # 13 Exhibit 201, # 14 Exhibit 202, # 15 Exhibit 203, # 16 Exhibit 204, # 17 Exhibit 205, # 18 Exhibit 206, # 19 Exhibit 207, # 20 Exhibit 208, # 21 Exhibit 209, # 22 Exhibit 210, # 23 Exhibit 211, # 24 Exhibit 212, # 25 Exhibit 213, # 26 Exhibit 214, # 27 Exhibit 215, # 28 Exhibit 216, # 29 Exhibit 217, # 30 Exhibit 218, # 31 Exhibit 219, # 32 Exhibit 220, # 33 Exhibit 221, # 34 Exhibit 222, # 35 Exhibit 223, # 36 Exhibit 224 Part 1, # 37 Exhibit 224 Part 2, # 38 Exhibit 225, # 39 Exhibit 226, # 40 Exhibit 227 Part 1, # 41 Exhibit 227 Part 2, # 42 Exhibit 227 Part 3, # 43 Exhibit 227 Part 4, # 44 Exhibit 228, # 45 Exhibit 229, # 46 Exhibit 230, # 47 Exhibit 231, # 48 Exhibit 232, # 49 Exhibit 233, # 50 Exhibit 234, # 51 Exhibit 235, # 52 Exhibit 236, # 53 Exhibit 237, # 54 Exhibit 238, # 55 Exhibit 239, # 56 Exhibit 240, # 57 Exhibit 241, # 58 Exhibit 242, # 59 Exhibit 243, # 60 Exhibit 244, # 61 Exhibit 245, # 62 Exhibit 246, # 63 Exhibit 247, # 64 Exhibit 248, # 65 Exhibit 249, # 66 Exhibit 250, # 67 Exhibit 251, # 68 Exhibit 252, # 69 Exhibit 253, # 70 Exhibit 254, # 71 Exhibit 255, # 72 Exhibit 256, # 73 Exhibit 257, # 74 Exhibit 258, # 75 Exhibit 259, # 76 Exhibit 260, # 77 Exhibit 261, # 78 Exhibit 262, # 79 Exhibit 263, # 80 Exhibit 264, # 81 Exhibit 265, # 82 Exhibit 266, # 83 Exhibit 267, # 84 Exhibit 268, # 85 Exhibit 269, # 86 Exhibit 270, # 87 Exhibit 271, # 88 Exhibit 272 Part 1, # 89 Exhibit 272-2, # 90 Exhibit 272 Part 3, # 91 Exhibit 272 Part 4, # 92 Exhibit 272 Part 5, # 93 Exhibit 272 Part 6, # 94 Exhibit 272 Part 7, # 95 Exhibit 272 Part 8, # 96 Exhibit 272 Part 9, # 97 Exhibit 272 Part 10, # 98 Exhibit 272 Part 11, # 99 Exhibit 272 Part 12, # 100 Exhibit 272 Part 13, # 101 Exhibit 272 Part 14, # 102 Exhibit 272 Part 15, # 103 Exhibit 272 Part 16, # 104 Exhibit 272 Part 17, # 105 Exhibit 272 Part 18, # 106 Exhibit 272 Part 19, # 107 Exhibit 273, # 108 Exhibit 274, # 109 Exhibit 275, # 110 Exhibit 276, # 111 Exhibit 277, # 112 Exhibit 278, # 113 Exhibit 279, # 114 Exhibit 280, # 115 Exhibit 281, # 116 Exhibit 282, # 117 Exhibit 283, # 118 Exhibit 284, # 119 Exhibit 285, # 120 Exhibit 286, # 121 Exhibit 287, # 122 Exhibit 288, # 123 Exhibit 289, # 124 Exhibit 290, # 125 Exhibit 291, # 126 Exhibit 292, # 127 Exhibit 293, # 128 Exhibit 294, # 129 Exhibit 295, # 130 Exhibit 296, # 131 Exhibit 297, # 132 Exhibit 298, # 133 Exhibit 299, # 134 Exhibit 300, # 135 Exhibit 301, # 136 Exhibit 302, # 137 Exhibit 303, # 138 Exhibit 304, # 139 Exhibit 305, # 140 Exhibit 306, # 141 Exhibit 307, # 142 Exhibit 308, # 143 Exhibit 309, # 144 Exhibit 310, # 145 Exhibit 311, # 146 Exhibit 312, # 147 Exhibit 313, # 148 Exhibit 314, # 149 Exhibit 315, # 150 Exhibit 316, # 151 Exhibit 317, # 152 Exhibit 318, # 153 Exhibit 319, # 154 Exhibit 320, # 155 Exhibit 321, # 156 Exhibit 322, # 157 Exhibit 323, # 158 Exhibit 324, # 159 Exhibit 325, # 160 Exhibit 326, # 161 Exhibit 327, # 162 Exhibit 328, # 163 Exhibit 329, # 164 Exhibit 330, # 165 Exhibit 331, # 166 Exhibit 332, # 167 Exhibit 333 Part 1, # 168 Exhibit 333 Part 2, # 169 Exhibit 334, # 170 Exhibit 335, # 171 Exhibit 336, # 172 Exhibit 337, # 173 Exhibit 338)(Figueira, Elizabeth)

Figueir

Deci.

Thb

327

FRACKMAN RUSSELL KARIN 0. PAGNANELLI
J.

LState

Bar No.

MARC
11377

E.

MAYER

State

State Bar No. Bar No. 190969

49087 174763

MITCHELL

SILBERBERG

KNUPP LLP

West Ojyrnpic Blvd. Los Angeles California 90064 310 312-2000 Telephone Facsimile 310 312-3786

NBC

Attorneys for Amicus Curiae Inc. Universal

UNITED

STATES DISTRICT

COURT

CENTRAL DISTRICT
10

OF CALIFORNIA

11

12

ROBERT TUR d/b/a NEWS SERVICE

LOS ANGELES

CASE NO. CVO6-4436
The Honorable

FMC

AJWx
Cooper

Florence-Marie

13

Plaintiff

BRIEF OF AMICUS CURIAE NBC

14

V.

UNIVERSAL

IS

YOUTUBE

INC.
Defendant.

PLAINTIFF ROBERT TURS OPPOSITION TO MOTION OF

INC. IN

SUPPORT OF

16

YOUTUBE JUDGMENT
Date

INC.

FOR SUMMARY

17

May 21 2007
1000
750
a.m.

Time
Ctrm.

18

19

20
21

22 23 24 25 26 27 28

DOCKETED
HAY

ON CM

292007

BYS1

202

6422.1

TABLE OF CONTENTS
Page

I.

POSITION

OFAMICUS CURIAE

II.

THE BALANCE AND PROTECTIONS IMPLEMENTED BY THE DMCA WILL BE ELIMINATED IF

YOUTUBES MOTION
III.

IS

GRANTED

YOUTUBE HAS NOT CARRIED ITS BURDEN OF PROVING THAT IT MEETS THE REQUIREMENTS OF SECTION 12c
A.
Qualification
Is

For The Section Defense

An

Affirmative

On Which

12c

Safe Harbor

YouTube

Bears The Burden B.

10

Under The Applicable
For Vicarious
Liability

Common Law

Standard

11

Met The Requirements
C.

YouTube Has Not Of Section 512c1B
Its

12

YouTube Has Not Met
Safe Harbor
Qualification

Burden Of Showing On Either Of The

13

Additional Requirements

Of Lack Of Knowledge

Or Repeat Infringer
14 IV. 15

Policy

16

PROVIDE DISSEMINATE AND PROFIT FROM COPYRIGHTED WORKS CONCLUSION

SECTION WEBSTTES

12c DOES NOT PROTECT COMMERCIAL SUCH AS YOUTUBE THAT COLLECT
19

17

25

18

19

20 21 22 23 24 25

26 27
28

64Z21

TABLE OF AUTHORITIES
Pages CASES

AM AM AM
10

Records
141 F.

Inc.

v.

Napster Inc.

Supp. 2d 896

N.D.

Cal.

2000

22

Records 239F.3d

Inc.

v.

Napster Inc.

10049thCir.2001
Inc. v.

911121321

Records.

Napster Inc.
1746

U.S.P.Q.2d

N.D.

Cal.

2000
Inc.

18

19

ALS Scan
239
11

Inc.

v.

RemarQ Communities
Cr.

F.3d 619 4th

2001
Inc.

Corbis
12

Corp. 351
F.

v.

Amazon.com
2d 1090

Supp.

W.D.
Inc.

Wash. 2004

23

13

CoStar 14
15

Group

Inc.

v.

Loopnet

164 F. Supp. 2d 688

D.
4th

Md.
Cir.

2001
2004
24

affd

373

F.3d 544

16

Doev.GTECorp.
347 F.3d 655

7th

Cir.

2003

20

17 Ellison 18
v.

Robertson
F.3d 1072

357 19

9th

Cr. 2004 Alabama
Cir.

10

19

Fame PubIg Co.
20
21 Fed.

Inc.

v.

Custom

Tape

Inc.

507 F.2d 667 5th

1975
Clearing

Trade

Commn

v.

Publishing
Cir.

House

Inc.
15

22 23 24 25 26 27 28

104 F.3d

11689th
v.

1997
Inc.

Fonovisa

Inc.

Cherry Auction

76 F.3d 259

9th

Cir.

1996
Inc.
Cal.

11

12

Hendrickson 298
F.

v.

Amazon.com

Supp. 2d 914

C.D.

2003

72425

Hendrickson
165
F.

v.

eBay

Inc. 1082

Supp. 2d

C.D.

Cal.

2001

24

16422.1 II

In re

Aimster

Copyright

Litig.

334 F.3d 643 7th

Cir 2003

19

Jarvis

v.

K2

Inc.

F.3d

2007 WL
Service
v.

1239222

9th

Cir.

April

30 2007

22

Los Angeles
305

News

CBS
2002

Broadcasting

inc.
16

F.3d 924 9th

Cir.

Los Angeles

News

Service

v.

Reuters

Television

intern.

Ltd.
16

149 F.3d 987 9th

Cir.

1998

Martin

v.

Alamo Cmty.
5th

College Dist.
Cir.

353 F.3d 409
10

2003
Inc. v.

Metro-Goldwyn-Mayer
545 U.S.913

Studios

Grokster

Ltd.

ii

2005
CCBi1I

1213

12

Perfect

10

Inc.

v.

LLC

481 F.3d

7519th

Cir.

2007

18 1923

13

Perfect

iQjpc.

v.

Cybernet

Ventures Inc.

14

213F.Supp.2d1146C.D.CaI.2002
Perfect

111418

15

10

Inc.

v.

Google
2d 828

Inc.

416F.
16
17

Supp.

C.D.

Cal.

2006
Inc.

9101123

Playboy

Enters.

Inc.

v.

Russ Hardenburgh

982F.
18

Supp.

503

ND.

Ohio 1997
Inc.

1116

19

jyboy

Enter..

Inc.

v.

Webbworld N.D.Tex. Webbworld N.D. 5th
Tex.
Cir.

96SF. Supp.
20

1171

1997
Inc.

Playboy Enters.
21

Inc.

v.

991 F. Supp.

543

1997
1999 Sens. 12
Studios. 13

22 23 24 25 26 27 28

affd

163 F.3d 486

22

Religious Tech.

Ctr.

v.

Netcom

On-Line Communication
Cal.

907

F.

Supp.

1361

N.D.
v.

1995
City

Sony Corp. of America

Universal

Inc.
21

464U.S.4171984
Thornhill

PubIg Co.

Inc.

v. Cir.

General

Tel.

Electronics

Corp.
15

594 F.2d 730

9th

1979

In

Twentieth

Century
F.

Fox Film Corp. 2007

v.

Cablevision

Sys.

Corp.

Supp. 2d

WL

867093
22

S.D.N.Y.

Mar 22 2007
Inc. v.

UMG UMG

Recordings
92
F.

MP3.com. S.D.N.Y.

Inc.

Supp. 2d 349

2000

23

Recordings 300
F.

Inc.

v.

Sinnott

Supp. 2d 993

ED.
v.

Cal.

2004
Invsco

13

Universal

City

Studios

Inc.

American
111.

Mngrnnt

Inc.
16

217 U.S.P.Q. Video Pipeline
192
F. Inc.

1076

N.D.

1981

v.

Buena

Vista

Home Entmt.

Inc.

Supp. 2d 321

affd
11

342 F.3d

191

D. N.J. 2002 3d Cir. 2003

22

12

13

STATUTES
Digital

14

Millennium

Copyright

Act

DMCA

17

U.S.C. passim

15

512
512a-d
512c

16

passim

17

512i

15171819
13

18

512m

512n

19

20
21

LEGiSLATIVE
H.R. Rep.

HISTORY 1998

22

No. 551 190

part

105th Cong.

2d Sess.

7923
13 1720

23 24 25
S.

Rep.

No.

105th Cong.

2d

Sess.

1998

26
27

28

iv
4fl

MISCELLANEOUS
H.

Salow

Liability
it

Immunity for

internet

Service

Providers

Howls
Billion-Dollar

Working
Viacom

J.

Tech.

Law

Policy

12001

20

Battle Tribune

vs.

You Tube
16

Chicago

March

14 2007

interview

with

Google

CEO

Eric Schmidt
10

Wired April 2007 Viacom
Tells

You

Tube Hands

Off
14

New York Times Feb. 32007
VouTube and
10 the

Law
Journal

The

Fort

Wayne

Gazette

April

2007

16

11

12

13

14

15

16

17

18

19

20
21

22 23 24 25 26

27
28

which

infringing

activity

is

apparent
it

that

upon

notice

it

expeditiously

removes

infringing

material2

and that

has and implements
as Congress

repeat infringer
wrote
it

policy.

Thus

applying
it

Section

512c

--

and not of the

as

YouTubes

lawyers rewrite
prerequisites

--

YouTube must
above on the

prove

that

it

meets each

statutory

listed

basis

of undisputed

record evidence.

YouTubes

failure to

do so with respect motion.

to any

of the
this

requirements

dooms
is

its

summary
there exists any

judgment

The

issue

before with

Court therefore
to

whether

triable issue of material

fact

respect that

whether

YouTube

has met any one of
copyright

the

Section

512c
merely

requirements whether

Congress responds

included

to protect

owners

10

--

and

not

YouTube

promptly

to

takedown

notices.

11

In

view of

the

foregoing
that

Amicus on
to

respectfully

urges the

Court to decide

the

case on narrow
13 are

grounds
unsettled

focus

the

particular

record before the Court.

There
to

numerous

questions as such
as

how

Section

12c

of the

DMCA

applies

14

consumer media websites
differ

YouTube.
record

The answers shows about

to those

questiobs

will

15

depending

on what
the extent

particular

the

nature

of

YouTubes
its

16
17

business
intention

model

of

YouTubes
blindness

knowledge
to obvious

of infringement evidence

including

to infringe

or willful

of infringement from which
it

18

YouTubes

ability

to take

active

steps

to

prevent

infringement

obtains

19

20
21

22 23 24 25 26

notice before suit. The burden always copyright holder need not serve each of the other safe harbor requirements. remains on the ISP to prove that it meets alone is far from sufficient protection for copyright holders In fact notice

DMCA

DMCA

as illustrated that
it

by the facts removes infringing

here.

YouTube

claims

which

Amicus
notice.

does not

material

YouTube
provide

material which
infringing

must locate the infringing omits to state that is indexed on YouTuhe own server by YouTube and located and remove the notice and then wait for YouTube to process the notice
material.
it

after receiving holder first the copyright

DMCA

concede

However

27
28

During this time the infringing material remains available on is removed the identical infringing material can as soon as Moreover that the be and as here has been replaced by the same or other users requiring these realities The DMCA recognized by providing the process stan over again. and not in place of for safe harbor protection addition in to separate requirements YouTube.
notice.

ha

direct

financial

benefit

and

YouTubes
its

willingness

to

implement

policy

that

prevents

repeat

infringers

among

users

from continuing of

to infringe.

Amicus would
website can
reveal

believes

that

thorough

discovery

YouTubes

operations

likely

that

it

has extensive knowledge
is

of massive of

infringement

on
that

its

that

this infringement

key

driver

its

financial

success

it

readily

control

that

infringement on
its

and that

it

takes

wholly

inadequate discovery

steps

to

prevent
in this

repeat

infringement
the

website.

Because

no such
clear

has

occurred
the

case however
limited record

record

does

not provide

answers.

Although

even
for

before
that

this

Court should
bare

preclude

summary judgment
against

YouTube

10

Amicus submits

at

minimum any

disposition

Tur should be based

11

on his failure to develop misreading
III.

adequate

record evidence

and

not

on

YouTubes

12

of Section

512c.

13

YOUTUBE HAS NOT CARRIED ITS BURDEN OF PROVING THAT OF SECTION 512c. IT MEETS THE REQUIREMENTS
A. Qualification Affirmative

14

For The Section Defense

15

512c Safe Harbor Is An On Which YouTube Bears The Burden.

16

Contrary defense

to

YouTubes
defendant

contention
bears the

DMCA
burden

safe

harbor

is

an affirmative

17

on which the

on summary

judgment.

18

Hendrickson

v.

Amazon.com
is

Inc.

29SF. Supp. 2d 914 915
defense

CD.

Cal.

2003
liability

19

Amazon
claim same
it

asserting

an affirmative of the
safe

on the

vicarious

20
21

must

establish

all

elements

harbor rule under confirms
this

the

DMCA..
See

The
Rep.

legislative

history

onwhich

YouTube
at

relies

fact.

HR.

22 23

No. 551
provided
limitations

pt.

105th

Cong.

2d Sess.
are

26

1998 The
defenses
like

exemption
the

and limitations and
this

in

this

subsection

affirmative

exceptions
asserting

24
25 26 27 28

established

elsewhere

in

title

17....

defendant
in

exemption
establishing

or limitation

as an affirmative

defense

such

suit

bears

the

burden

of

its

entitlement.. of the essential

Accordingly
elements

YouTube
...

must

establish

beyond judgment 5th
Cir.
in

peradventure favor.

all

of the

defense

to warrant

Martin

v.

Alamo Cmty.

College Dist. 353

F.3d

409

412

2003.

YouTube
of

has not met that burden
that

on

this

record and therefore

there

remain

triable issues

fact

preclude

summary

judgment.

See

Ellison 357 F.3d

at

1080.

YouTubes
disputed issue of above.
raised

motion

for

summary judgment must
one of the Section

be denied

if there

is

fact

as to

any

12c

requirements described regarding the issue
is

There certainly
in

is at

minimum

disputed
--

issue of fact

Turs

motion
benefit

for

summary judgment
on

whether website
for

YouTube
and

receiving

direct

financial

from infringement

its

has the right and should motion

ability

to control

that

infringement.

Summary judgment
goes
fbrther

YouTube YouTubes
whether

be denied should has

on

10
11

that

basis alone.

If the

Court

however
disputes

be

denied

because

there

are

genuine

factual

as to

YouTube

12

knowledge ofor

is

aware

of facts and circumstances reasonable

indicating policy

infringement
is

13

maintains and enforces
the

repeat the

infringer

or even

eligible for

14

protections

of Section

12c

in

first

place.

15

B.

Under The Applicable Common Law Standard For Vicarious Of Has Not Met The Requirements Liability VouTube
Section

16

512c1B.
presented single narrow
safe

17

Turs
disqualified

motion

issue

whether because

YouTube
receives

is

18

from the

DMCA

harbor

it

invokes

it

financial

19

benefit

directly

attributable

to the

infringing

activity

in

case

in

which

the

service

20
21

provider

has the

right and

ability

to control

such

activity.

17

U.S.C.
incorrect

512c1B.
view of
benefit
the

YouTubes
applicable law.

arguments

on

this

question
that

hinge

on

clearly

22 23 24 25

YouTube
to

contends under

the

standard

for direct

financial

and right and ability narrower

control

Section

512c1B
under
that

is

different

and significantly

than the
Circuit

test

for vicarious

liability

common

law.

Memo.

at

1-22.

The Ninth
on the

now

has firmly

rejected

contention
that

26 27
28

Based

well-established rule of construction have
court

where Congress uses terms that meaning under common law
statute

accumulated
to

settled

otherwise
the

incorporate

dictates established

that

must infer Congress means
these

unless

the

meaning of
benefit

terms... be

hold that

direct

financial

should