Mr. Howard E. KingDecember 4, 2014Page 2an exclusive right that has been infringed. Indeed, you continue to be unclear about exactly whatrights GMR purports to have, whether those rights were effectively withdrawn from other performance rights organizations with whom YouTube has licensing agreements, and whether GMR actually has the authority to assert infringement claims on behalf of the relevant copyrightowners.These statutory requirements for a valid takedown notice “are not superfluous.”
Perfect 10, Inc. v. CCBill LLC
, 488 F.3d 1102, 1112 (9th Cir. 2007) (explaining that because“[a]llegations of alleged infringement have drastic consequences,” the DMCA does “not requirea service provider to start potentially invasive proceedings if the complainant is unwilling to stateunder penalty of perjury that he is an authorized representative of the copyright owner, and thathe has a good-faith belief that the material is unlicensed”). They reflect that “[c]opyright holdersknow precisely what materials they own, and are thus better able to efficiently identify infringingcopies than service providers.”
UMG Recordings, Inc. v. Shelter Capital Partners
, 718 F.3d1006, 1022 (9th Cir. 2013). The “goal of this provision is to provide the service provider withadequate information to find and address the allegedly infringing material expeditiously.” H.R.Rep. No. 105-551 (II) at 56 (1998). You have not done that here. But without informationidentifying what specific videos GMR believes include unauthorized versions of the works atissue, YouTube cannot—and has no legal obligation to—seek out such material, guess atwhether it is infringing (as opposed to material uploaded by a copyright holder or a licensed third party, or material that makes fair use of the work), and remove it.As I explained in my last letter, this understanding is clearly reflected in the
Viacom
court’s holding that a DMCA notice, in addition to identifying the works at issue, must “alsogiv[e] the works’ locations at the site”—such as a URL where the allegedly infringing materialresides.
Viacom Int’l, Inc. v. YouTube, Inc
., 718 F. Supp. 2d 514, 528-29 (S.D.N.Y. 2010) (citingH.R. Rep. 105-551 (II) at 55). You respond that we “somewhat embarrassingly” fail to cite theSecond Circuit’s subsequent decision, but it is not I who should be embarrassed. The SecondCircuit in no way disturbed Judge Stanton’s holding about the requirements for a valid DMCAnotice. To the contrary, the court of appeals affirmed that “the basic operation of § 512(c)requires knowledge or awareness of specific infringing activity.”
Viacom Int’l, Inc. v. YouTube, Inc
., 676 F.3d 19, 30 (2d Cir. 2012) (“
Viacom II
”). It explained that “the nature of the removalobligation itself contemplates knowledge or awareness of specific infringing material, becauseexpeditious removal is possible only if the service provider knows with particularity which itemsto remove.”
Id
. That applies equally to the DMCA’s notice-and-takedown requirement. YouTubecan respond “expeditiously” to a notification of claimed infringement (§ 512(c)(1)(C)) only if thenotice indicates “with particularity” what clips it is being asked to remove. You also ignoreJudge Stanton’s subsequent decision on remand, in which he once again granted summary judgment to YouTube.
Viacom Int’l, Inc. v. YouTube, Inc
., 940 F. Supp. 2d 110 (S.D.N.Y. 2013)(“
Viacom III
”). In so doing, the court explained yet again that “Congress has determined that the