United States District Court, S.D. New York
VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION LLC, Plaintiffs,
YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE INC., Defendants
[Copyrighted Material Omitted]
For Viacom International, Inc., Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, Black Entertainment Television, LLC, Plaintiffs: James C. Cox, Scottt Block Wilkens, LEAD ATTORNEYS, PRO HAC VICE, Jenner & Block, LLP (DC), Washington, DC; Luke Cardillo Platzer, LEAD ATTORNEY, Jenner & Block, LLP (DC), Washington, DC; Sarah Ann Maguire, LEAD ATTORNEY, PRO HAC VICE, Grayson & Kubli, P.C.; McLean, VA; Susan Joan Kohlmann, LEAD ATTORNEY, Jenner & Block LLP (LA), Los Angeles, CA; John Gueli, Stephen Robert Fishbein, Stuart Jay Baskin, Shearman & Sterling LLP (NY), New York, NY; Matthew S. Hellman, PRO HAC VICE, Jenner & Block, LLP (DC), Washington, DC; Michael Brian Desanctis, Paul March Smith, Jenner & Block, LLP (DC), Washington, DC; Matthew Dempsey McGill, Gibson, Dunn & Crutcher, LLP (DC), Washington, DC.
George May, Movant, Pro se, Palm Bch. Gardens, FL.
For Youtube, Inc., Youtube, LLC, Google, Inc., Defendants: A. John P. Mancini, LEAD ATTORNEY, Mayer Brown LLP (NY), New York, NY; Andrew H. Schapiro, LEAD ATTORNEY, Mayer Brown LLP (DC), Washington, DC; Brian Michael Willen, LEAD ATTORNEY, Wilson Sonsini Goodrich & Rosati, New York, NY; Jonathan M. Jacobson, Tonia Maria Ouellette Klausner, LEAD ATTORNEYS, Wilson Sonsini Goodrich & Rosati (NYC), New York, NY; Richard Ben-Veniste, LEAD ATTORNEY, Mayer Brown LLP, Washington, DC; Bart E. Volkmer, Caroline Wilson, Dylan J. Liddiard, Leo P Cunningham, Maura Lea Rees, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA; David H. Kramer, PRO HAC VICE, Wilson, Sonsini, Goodrich & Rosati, Palo Alto, CA; David Bernard Schwartz, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY; James Joseph Hartnett, IV, Faegre & Benson LLP (MN), Minneapolis, MN; John H. Hinderaker, PRO HAC VICE, Faegre & Benson LLP, Minneapolis, MN; Michael Harrison Rubin, PRO HAC VICE, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA.
For American Library Association, et al., Amicus: Edward Hernstadt, Hernstadt Atlas, LLP, New York, NY.
For Washington Legal Foundation, Amicus: Lauren J. Wachtler, LEAD ATTORNEY.
For American Society of Composers, Authors And Publishers, Broadcast Music, Inc., SESAC, Inc., Disney Enterprises, Inc., NBC Universal, Inc., Warner Bros. Entertainment Inc., Association Of American Publishers, Center For The Rule Of Law, Institute For Policy Innovation, The Media Institute, Picture Archive Council Of America, Professional Photographers of America, Rosetta Stone Ltd., Zuffa, LLC, Amicus: Christopher Gardner Clark, Skadden, Arps, Slate, Meagher & Flom LLP (MA), Boston, MA; Clifford M. Sloan, PRO HAC VICE, Skadden, Arps, Slate, Meagher & Flom LLP (DC), Washington, DC; Mary Eleanor Rasenberger, Skadden, Arps, Slate, Meagher & Flom LLP (NYC), New York, NY.
For Directors Guild of America, Screen Actors Guild, American Federation of Television and Radio Artists, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Amicus: Peter Dante DeChiara, Cohen, Weiss and Simon, New York, NY.
For eBay, Inc., Facebook, Inc., IAC/Interactivecorp, Yahoo! Inc., Amicus: Asim M. Bhansali, LEAD ATTORNEY, Keker & Van Nest LLP, San Francisco, CA.
For The Sideshow Coalition, Amicus: Eric Joseph Grannis, LEAD ATTORNEY, Law Offices of Eric J. Grannis, New York, NY.
LOUIS L. STANTON, U.S. D. J.
Defendants having renewed their motion for summary judgment, this Opinion responds to the April 5, 2012 direction of the Court of Appeals,
Viacom Int'l Inc. v. YouTube, Inc., 676 F.3d 19, 42 (2d Cir. 2012), remanding to
. . . allow the parties to brief the following issues, with a view to permitting renewed motions for summary judgment as soon as practicable:
(A) Whether, on the current record, YouTube had knowledge or awareness of any specific infringements (including any clips-in-suit not expressly noted in this opinion);
(B) Whether, on the current record, YouTube willfully blinded itself to specific infringements;
(C) Whether YouTube had the " right and ability to control" infringing activity within the meaning of § 512(c)(1)(B) ; and
(D) Whether any clips-in-suit were syndicated to a third party and, if so, whether such syndication occurred " by reason of the storage at the direction of the user" within the meaning of § 512 (c)(1), so that YouTube may claim the protection of the § 512(c) safe harbor.
Familiarity with the Court of Appeals opinion, and my opinion at 718 F.Supp.2d 514 (S.D.N.Y. 2010) is assumed.
(A) WHETHER, ON THE CURRENT RECORD, YOUTUBE HAD KNOWLEDGE OR AWARENESS OF ANY SPECIFIC INFRINGEMENTS (INCLUDING ANY CLIPS-IN-SUIT NOT EXPRESSLY NOTED IN THIS OPINION)
Pursuant to the first item, I requested the parties to report, for each clip-in-suit, " what precise information was given to or reasonably apparent to YouTube identifying the location or site of the infringing matter?" (Tr. Oct. 12, 2012, p. 29) YouTube submitted a list of 63,060 clips-in-suit, claimed it never received adequate notices of any of those infringements, and challenged plaintiffs to fill in the blanks specifying how they claim such notice was given.
In its response, Viacom stated that
It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge. Defendants apparently are unable to say which clips-in-suit
they knew about and which they did not (which is hardly surprising given the volume of material at issue) and apparently lack viewing or other records that could establish these facts. (Viacom Opp. p. 8, fns omitted)
Viacom recognizes " . . . that Viacom has failed to come forward with evidence establishing YouTube's knowledge of specific clips-in-suit." (Viacom Opp. p. 9)
That does not matter, Viacom says, because it is not Viacom's burden to prove notice. Viacom argues that YouTube claims the statutory safe harbor as a defense, and therefore has the burden of establishing each element of its affirmative defense, including lack of knowledge or awareness of Viacom's clips-in-suit, and has not done so. Plaintiffs' thesis is stated clearly and simply; " If there is no evidence allowing a jury to separate the clips-in-suit that Defendants were aware of from those they were not, there is no basis for applying the safe harbor affirmative defense to any of the clips." (Viacom Opp. p. 2)
Plaintiffs elaborate (Viacom Opp. pp. 8-9):
The Second Circuit vacated this Court's grant of summary judgment regarding actual knowledge or awareness because " a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent." Viacom, 676 F.3d at 34. It remanded for a further assessment of the evidence relating to whether this knowledge extended to Viacom's clips-in-suit. Id. It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge. Defendants apparently are unable to say which clips-in-suit they knew about and which they did not (which is hardly surprising given the volume of material at issue) and apparently lack viewing records that could establish these facts. It follows, given the applicable burden of proof, that they cannot claim the 512(c) safe harbor-especially in light of the voluminous evidence showing that the Defendants had considerable knowledge of the clips on their website, including Viacom-owned material.
The argument is ingenious, but its foundation is an anachronistic, pre-Digital Millennium Copyright Act (DMCA), concept. Title II of the DMCA (the Online Copyright Infringement Liability Limitation Act) was enacted because service providers perform a useful function, but the great volume of works placed by outsiders on their platforms, of whose contents the service providers were generally unaware, might well contain copyright-infringing material which the service provider would mechanically " publish," thus ignorantly incurring liability under the copyright law. The problem is clearly illustrated on the record in this case, which establishes that " . . . site traffic on YouTube had soared to more than 1 billion daily video views, with more than 24 hours of new video uploaded to the site every minute", 676 F.3d at 28; 718 F.Supp.2d at 518, and the natural consequence that no service provider could possibly be aware of the contents of each such video. To encourage qualified service providers, Congress in the DMCA established a " safe harbor" ...