2010 12 14 Summary of Amici Support

8/4/2019 2010 12 14 Summary of Amici Support

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SUMMARY EXCERPTS FROM

VIACOM YOUTUBE / GOOGLE AMICI BRIEFS

On December 3, 2010, Viacom filed its opening brief with the U.S. Court of Appeals for theSecond Circuit in connection with its copyright infringement case against Google and YouTube.Viacom is appealing the denial of its summary judgment by the U.S. District Court of theSouthern District of New York, issued on June 23, 2010, on the ground that the District Courterroneously held that the Digital Millennium Copyright Act (DMCA) shielded Google andYouTube from liability for their infringing conduct.

A wide of array of parties have voiced their support for Viacom by filing amici briefs with theCourt of Appeals including guilds and unions, musicians, newspapers, magazines, bookpublishers, technology companies, music companies, content distributors, trade associations,think tanks, public policy groups and leading law professors and economists. In all, nearly 100

parties in 12 amici briefs spoke out to stress the legal, economic and public policy dangers of notprotecting copyright in the U.S.

That is because the precedent set by the outcome of this case will have repercussions for the U.S.economy. Americas intellectual property is worth over $5 trillion more than the GDP of anyother country and is responsible for the employment of more than 18 million Americans.Accounting for over 60% of all U.S. exports, IP drives 40 % of our economic growth today, witheven greater potential going forward. Specifically, the core copyright industries in this countryemployed nearly 5.6 million workers in 2007, more than 4% of the U.S. workforce, while totalcopyright industries employed 11.7 million, or more than 8.5% of the U.S. workforce.

With so much at stake for the U.S. economy, markets depend on the protection of content and

on investments in content. Indeed, the incentive to innovate is extinguished if an investmentcannot be protected under U.S. law.

In enacting the DMCA, Congress expressly sought to achieve a balance between protectingcontent and encouraging the development of new forms of online distribution. It's a sensibleapproach that benefits all parties who work in good faith. The intentional theft of copyrightedworks not only undermines that balance, it destroys the value of the very works Congress soughtto protect along with the businesses of online distributors who honestly comply with the law.That is no truer than in this case, where the lower court acknowledged that YouTube 'welcomed'infringement in order to build traffic on its site.

Viacom is entitled to summary judgment on its claims.

The protection of copyrighted material on or offline is paramount for

America to be competitive in an information-based economy.


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Prominent Content Owners, Trade Groups and Think Tanks

A diverse group of prominent content owners, trade groups and think tanks argue that the DMCAdoes not give safe harbor to businesses that knowingly build an audience by distributing stolencontent. To interpret this law otherwise would have dangerous consequences for the amici andother content creators.

The District Court erroneously interpreted the DMCA as a "notice and takedown" statute. Undera proper reading of the statute, businesses that seek to encourage and profit from infringement arenot entitled to the safe harbor and are liable for their conduct.

If the District Courts ruling were left standing it would sanction a deeply disturbing businessmodel. It would authorize and, by its economic logic, encourage enterprises to exploitinfringing copyrighted content in order to attract traffic and create value for their sites to thedetriment of content owners, as long as the enterprises respond to formal takedown notices.Upholding the District Courts opinion will turn copyright on its head by vesting sitesconsciously built on infringement with a broad shield of legal immunity.

This group of influential publishers include: The Association of American University Presses,American Society of Media Photographers, Associated Press, Association of AmericanPublishers, Blues Destiny, Center for the Rule of Law, Advance Publications, Gannett, ICBCBroadcasting Holdings, Institute for Policy Innovation, Los Angeles Times, LPGA, McClatchy,National Football League, MIMITID Corp., National Association of Black Owned Broadcasters,Newspaper Association of America, Picture Archive Council of America, ProfessionalPhotographers of America, Radio Television Digital News Association, Rosetta Stone Ltd.,Scripps, Sports Rights Owners Coalition, The Media Institute, Washington Post, Inner CityBroadcasting, Minority Media & Telecommunications Council.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-publishers_amicus_brief.pdf

Leaders in Technology and Content Distribution

Microsoft Corporation and Electronic Arts Inc. stress the careful balance that Congress struck inthe DMCA. A site operator cannot be shielded by the safe harbor if it had direct knowledge ofinfringing activity. The safe harbor provision cannot be extended to YouTube, as its ownersknowingly allowed and encouraged infringing content on their website.

YouTubes founders were fixated on increasing the number of YouTube users in a short period oftime in order to maximize its commercial value and they knew YouTube had quickly become amagnet for pirated works. The founders recognized the value of retaining infringing content onthe site that, by YouTubes own estimates, accounted for 80% of its traffic and affirmatively

decided not to remove it and even uploaded some of it themselves in order to reach theirgoal of rapidly expanding YouTubes user base.

The District Court decision in this case must be reversed because it extends the DMCAs safeharbor to cover site operators that intentionally build their businesses on massive copyrightinfringement. The District Court's holding disrupts the motivation that Congress created forinternet service providers and content owners to work together to prevent online infringement.


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To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-microsoft_amicus.pdf

The Music Industry

The music industry submitted a brief in support of Viacom that included renowned recording

artists, songwriters, composers, music publishers, music unions, performing rights organizationsand trade groups. These amici include: Broadcast Music, Inc., American Society of Composers,Authors And Publishers, Sesac, Inc., The Society of Composers And Lyricists, The Associationof Independent Music Publishers, The Songwriters Guild of America, The Recording Academy,The Nashville Songwriters Association International,, American Association of IndependentMusic, Music Publishers Association of The United States, Lisa Thomas Music Services, LLC,Garth Brooks, Bruce Hornsby, Boz Scaggs, Sting, Roger Waters, Glenn Frey, Don Henley,Timothy B. Schmit and Joe Walsh (The Eagles). Combined, these parties collectively representhundreds of individuals and companies that own millions of copyrights.

This brief argues that the DMCA was designed to guarantee the continued viability of copyrightin this new internet age, while also encouraging the development of new technology. The District

Court destroyed this balance by construing the DMCA in a way that eliminated most of thequalifications and conditions for safe harbor and limited the statutes protections solely to thenotice and take-down procedure.

Instead of providing protections for both copyright owners and qualifying service providers, theDistrict Court has perversely turned the DMCA into a roadmap to build a business based onmassive use of copyrighted works without paying for them. As a result, copyright owners bothlarge and small lose control of their creations and are limited significantly in their ability tolicense their works, while their property is disseminated virally over the internet worldwide toanonymous users, without consent or compensation.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-

BMI_Amicus_Brief.pdf

The Film Industry

This brief was submitted by the Motion Picture Association of America and the Independent Film& Television Alliance , which collectively represent the interests of the leading film andtelevision producers and distributors in the United States.

The brief focuses on the fundamental errors of statutory interpretation in the District Courtdecision and the incompatibility of the DMCA safe harbor with the intent to encourage and profitfrom massive infringement.

Any intent to foster infringement under MGM v. Grokster cannot fall within the protections of theDMCA, which extends only to service providers that do not knowingly promote infringement.The brief also makes clear that the District Court decision impermissibly renders severalprovisions of the DMCA meaningless by granting service providers immunity as long as theyrespond to takedown notices.

The DMCA imposes substantial obligations on service providers beyond responding to takedownnotices - obligations that YouTube ignored in order to encourage and profit from infringement.


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To read the brief in full please visit: http://news.viacom.com/pdf/MPAA_Amicus_Filing.pdf

International Intellectual Property Institute (IIPI)

The Honorable Bruce A. Lehman is the Chairman and President of IIPI. From August 1993through December 1998, Mr. Lehman served as Assistant Secretary of Commerce and U.S.

Commissioner of Patents and Trademarks.

In its brief, the IIPI explains that the safe harbor provision of the DMCA was never intended toexempt companies, such as YouTube, which profited from, and knowingly facilitated, copyrightinfringement. Protecting companies that benefit from infringing content encourages them toenable infringements in order to gain a competitive advantage. This increases the ease ofavailability and volume of infringing material and makes it much more difficult for authors toprotect their works, undermining their incentive to create.

Holding content providers responsible for the infringements they enable does not mean the deathof businesses that rely on user-provided content. It merely encourages the development oflegitimate strategies for managing potential liabilities. This approach is a win-win for all parties:

the authors regain an element of control over their works, the companies that license the worksshare in the profits and the public is enriched by the authors creativity.

To read the brief in full please visit: http://news.viacom.com/pdf/IIPI_Amicus_Filing.pdf

Labor Unions and Guilds

This brief was submitted by U.S. labor unions and guilds, including the American Federation ofMusicians, American Federation of Television and Radio Artists, Directors Guild of America,Inc., International Alliance of Theatrical Stage Employees, Screen Actors Guild, Inc., StudioTransportation Drivers, Local 399 and the International Brotherhood of Teamsters.

The more than 300,000 members of Guilds and Unions are crucial to the entertainment industryand are at a substantial risk of losing work, health benefits, pensions and the ability to adequatelysupport themselves or their families due to the unwarranted copyright infringement by YouTube.

The unlawful posting of audiovisual and sound creations on YouTube detrimentally impacts theprofits and subsequent salaries of members of such Guilds and Unions. On-line theft poses anexistential threat to the entertainment industry. On-line theft has already decimated the recordbusiness and as the on-line theft of motion pictures and television programs becomestechnologically more feasible, it threatens to seriously impact the production of audio-visualcontent as well. Allowing YouTubes systematic theft and facilitation of theft of copyrightedworks to go unpunished threatens the ability of those in this industry to support their families andtheir contributions to American culture are at stake.

YouTube was one of the initial distributors of infringing content via streaming technology, and isarguably the most famous. Its influence on the proliferation of this technology and the societaleffects of its conscious provision of a platform that allowed its early users to exhibit a rampantdisregard for copyright law cannot be overlooked.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-Guilds_Amicus.pdf
http://news.viacom.com/pdf/2010-12-10-Guilds_Amicus.pdfhttp://news.viacom.com/pdf/2010-12-10-Guilds_Amicus.pdf


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Leading Economists and Academics

This brief was submitted by professors and scholars who, from various perspectives, focus theirwork on the economic incentives of legal liability rules.

In their brief, these academics highlight that willful blindness must be treated the same as

having knowledge of the unlawful acts being committed. The law can encourage an actor whoknows he is committing or contributing to a bad act to refrain from doing so or at least to mitigatethe bad acts detrimental consequences, whereas an unknowing actor is immune to the lawsincentives. Choosing to be willfully blind does not excuse YouTubes actions, which are at oddswith the laws underlying purpose.

When a legal rule involves knowledge, one cannot escape liability by taking steps to ensureignorance of ones actions. Rather, the law underscores the fact that knowledge should be used toreduce harm and that one who acts wrongfully in the face of knowledge is especially culpable. IfYouTube took active steps to avoid learning the details of infringement on its site, it should bedeemed to have the knowledge that they purposefully avoided learning.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-Economists_Amicus.pdf

Washington Legal Foundation (WLF)

In its brief, the WLF notes that the DMCA was designed to create a delicate balance betweenservice providers and content owners. The cornerstone of the DMCA is knowledge and safeharbor should not be provided if a service provider turns a blind eye to red flags of infringement.

In situations where a service provider has repeated knowledge of repeated offenders, a differentstandard should apply. According to the DMCA, a service provider must do what is reasonablypossible in order to prevent repeat infringers from using its service.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-Washington_Legal_Foundation_amicus.pdf

IP Professors

These leading professors argue that the immunity granted to ISPs in the DMCA only extends toISPs who are not aware of infringing activity. The District Court decision threatens to abandonthese conditions by granting ISPs immunity for any infringing activity that is not specificallyidentified in a takedown notice.

Signers to this brief include Howard B. Abrams (University of Detroit Mercy School of Law),

Zoe Argento (Roger Williams University School of Law), Bruce E. Boyden (MarquetteUniversity Law School), Hugh C. Hansen (Fordham University Law School), William D. Henslee(Florida A&M University College of Law), Connie Davis Powell (Baylor University School ofLaw) and Tracy L. Reilly (University of Dayton School of Law).

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-IP_Law_profs_Boyden_et_al.pdf


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Leading American Law and Economics Scholars

Esteemed law professors Ron Cass, Ray Nimmer and Stuart Brotman argue that the lower Courtdecision violates a basic legal principle embodied in the DMCA, copyright law and the law moregenerally: legal responsibility generally rests on the party best able to prevent, limit or eliminateharm. The brief identifies YouTube as the "least cost avoider" because only YouTube is able to

prevent infringing content from going live by using automated filtering and other means to screenthis content out as new clips are being uploaded to YouTube.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-R_Cass_Professors_Amicus.pdf

Business Software Alliance (BSA)

BSA members have compelling interests in promoting both robust copyright protection andfreedom for technological innovation. As creators of software products that are subject tosignificant piracy, they have a strong interest in effective deterrence of copyright infringement,including in the online environment.

In their brief, BSA members note that, although the District Court correctly recognized thatYouTube welcomed infringing material on its website, the Court mistakenly ruled that a jurycould not reasonably find that YouTube was aware of the facts surrounding the infringingactivity.

YouTubes co-founders and high-ranking employees personally posted infringing content onYouTube and were aware that the website contained specific infringing clips, and intentionallyleft material that they identified and knew to be infringing on the website all as part of aconcerted effort to attract more traffic to their site. These facts should ensure that YouTube notreceive safe harbor under DMCA and are sufficient evidence for a trial. Accordingly, this Courtshould reverse the entry of summary judgment and remand for further proceedings.

Members of the BSA include Altium, Apple, Autodesk, AVEVA, AVG, Bentley Systems, CATechnologies, Cadence, Cisco Systems, CNC/Mastercam, Corel, Dassault Systmes SolidWorksCorporation, Dell, HP, IBM, Kaspersky Lab, McAfee, Microsoft, Minitab, Progress Software,PTC, Quark, Quest Software, Rosetta Stone, Siemens, Symantec, Synopsys, and The MathWorks.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-BSA_Amicus.pdf

CBS Corporation

CBS Corporation (CBS) submitted this amicus brief to voice its agreement with the pointsmade in the amicus curiae by the IFTA and MPAA. In order to protect the copyrighted content

of networks such as CBS who deliver and generate content, the original ruling in the DistrictCourt must be altered.

To read the brief in full please visit: http://news.viacom.com/pdf/2010-12-10-CBS_brief.pdf

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2010 12 14 Summary of Amici Support

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