viacom youtube

-1 -UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK-------------------------------xVIACOM INTERNATIONAL INC.,et al.,Plaintiffs, 07 Civ. 2103 (LLS)v.YOUTUBE INC., YOUTUBE LLC,and GOOGLE INC.,Defendants.-------------------------------x

OPINION AND ORDER

THE FOOTBALL ASSOCIATION PREMIERLEAGUE LIMITED, et al., onbehalf of themselves and allothers similarly situated,Plaintiffs,v. 07 Civ. 3582 (LLS)YOUTUBE INC., YOUTUBE LLC,and GOOGLE INC.,Defendants.-------------------------------xPlaintiffs in these related lawsuits (the “Viacomaction” and the “Premier League class action”) claim to ownthe copyrights in specified television programs, motionpictures, music recordings, and other entertainmentprograms. They allege violations of the Copyright Act of1976 (17 U.S.C. § 101 et seq.) by defendants YouTube

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andGoogle Inc., who own and operate the video-sharing website

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Defendants YouTube Inc. and YouTube LLC are both referred to as“YouTube.”

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-2 -known as “YouTube.com”. Plaintiffs claim, as set forth inViacom’s First Amended Complaint ¶¶ 30-31, that:Defendants encourage individuals to upload videosto the YouTube site, where YouTube makes themavailable for immediate viewing by members of thepublic free of charge. Although YouTube toutsitself as a service for sharing home videos, thewell-known reality of YouTube’s business is fardifferent. YouTube has filled its library withentire episodes and movies and significantsegments of popular copyrighted programming fromPlaintiffs and other copyright owners, thatneither YouTube nor the users who submit theworks are licensed to use in this manner.Because YouTube users contribute piratedcopyrighted works to YouTube by the thousands,including those owned by Plaintiffs, the videos“deliver[ed]” by YouTube include a vastunauthorized collection of Plaintiffs’copyrighted audiovisual works. YouTube’s use ofthis content directly competes with uses thatPlaintiffs have authorized and for whichPlaintiffs receive valuable compensation.. . . .When a user uploads a video, YouTube copies thevideo in its own software format, adds it to itsown servers, and makes it available for viewingon its own website. A user who wants to view avideo goes to the YouTube site . . . enterssearch terms into a search and indexing functionprovided by YouTube for this purpose on its site,and receives a list of thumbnails of videos inthe YouTube library matching those terms . . .and the user can select and view a video from thelist of matches by clicking on the thumbnailcreated and supplied by YouTube for this purpose.YouTube then publicly performs the chosen videoby sending streaming video content from YouTube’sservers to the user’s computer, where it can beviewed by the user. Simultaneously, a copy ofthe chosen video is downloaded from the YouTubewebsite to the user’s computer. . . . Thus, theYouTube conduct that forms the basis of this

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-3 -Complaint is not simply providing storage space,conduits, or other facilities to users who createtheir own websites with infringing materials. Tothe contrary, YouTube itself commits theinfringing duplication, distribution, publicperformance, and public display of Plaintiffs’copyrighted works, and that infringement occurson YouTube’s own website, which is operated andcontrolled by Defendants, not users.(Viacom’s brackets).Plaintiffs allege that those are infringements whichYouTube and Google induced and for which they are directly,vicariously or contributorily subject to damages of atleast $1 billion (in the Viacom action), and injunctionsbarring such conduct in the future.Among other defenses, YouTube and Google claim theprotection afforded by the Digital Millennium Copyright Actof 1998 (“DMCA”) (17 U.S.C. §§ 512(c)-(d), (i)-(j)), whichamong other things limits the terms of injunctions, andbars copyright-damage awards, against an online serviceprovider who: (1) performs a qualified storage or searchfunction for internet users; (2) lacks actual or imputedknowledge of the infringing activity; (3) receives nofinancial benefit directly from such activity in a casewhere he has the right and ability to control it; (4) actspromptly to remove or disable access to the material whenhis designated agent is notified that it is infringing;(5) adopts, reasonably implements and publicizes a policy

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