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Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 1 of 12
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`VIACOM INTERNATIONAL INC.,
`COMEDY PARTNERS,
`COUNTRY MUSIC TELEVISION, INC.,
`PARAMOUNT PICTURES CORPORATION,
`And BLACK ENTERTAINMENT
`TELEVISION LLC,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE INC.
`
`
`Defendants.
`
` ECF Case
`
`
`No. 1:07-cv-02103 (LLS) (FM)
`
`DEFENDANTS’ ANSWER AND
`DEMAND FOR JURY TRIAL
`
`
`
`
`
`
`Viacom's complaint in this action challenges the careful balance established by Congress
`
`when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of
`
`copyright holders and the need to protect the internet as an important new form of
`
`communication. By seeking to make carriers and hosting providers liable for internet
`
`communications, Viacom's complaint threatens the way hundreds of millions of people
`
`legitimately exchange information, news, entertainment, and political and artistic expression.
`
`Google and YouTube respect the importance of intellectual property rights, and not only comply
`
`with their safe harbor obligations under the DMCA, but go well above and beyond what the law
`
`requires.
`
`Defendants YouTube, Inc., YouTube, LLC and Google Inc. (collectively, “Defendants”),
`
`by their undersigned attorneys, hereby answer Plaintiffs’ Viacom International Inc., Comedy
`
`Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 2 of 12
`
`Entertainment Television LLC (all collectively, “Plaintiffs”) Complaint For Declaratory and
`
`Injunctive Relief and Damages (the “Complaint”) as follows:
`
`INTRODUCTION
`
`1.
`
`Defendants admit that the internet has had a significant impact on the way in
`
`which Americans inform and entertain themselves. Defendants are without information
`
`sufficient to form a belief as to the remaining allegations of paragraph 1 of the Complaint, in part
`
`because such allegations are not simple, concise and direct averments as required by Federal
`
`Rule of Civil Procedure 8(e), and on that basis Defendants deny such allegations.
`
`2.
`
`3.
`
`Defendants deny the allegations of paragraph 2 of the Complaint.
`
`Defendants admit that the website located at www.youtube.com is a forum for
`
`users to share their own original “user generated” video content. Defendants are without
`
`sufficient knowledge or information to confirm that Dow Jones reported the information averred
`
`in paragraph 3 of the Complaint, and therefore deny it. Defendants deny the remaining
`
`allegations in paragraph 3 of the Complaint.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`Defendants deny the allegations of paragraph 4 of the Complaint.
`
`Defendants deny the allegations of paragraph 5 of the Complaint.
`
`Defendants deny the allegations of paragraph 6 of the Complaint.
`
`Defendants deny the allegations of paragraph 7 of the Complaint.
`
`Defendants deny the allegations of paragraph 8 of the Complaint.
`
`Defendants admit that Google purchased YouTube Inc. for $1.65 billion.
`
`Defendants deny the remaining allegations of paragraph 9 of the Complaint.
`
`10.
`
`Defendants admit that Plaintiffs seek a declaration of willful infringement, a
`
`permanent injunction and damages, but deny that Plaintiffs are entitled to any such relief.
`
`Defendants deny the remaining allegations of paragraph 10 of the Complaint.
`
`
`
`-2-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 3 of 12
`
`JURISDICTION AND VENUE
`
`11.
`
`Defendants admit that the Complaint purports to state a claim for damages and
`
`injunctive relief for copyright infringement, but deny that Plaintiffs are entitled to any such relief
`
`and otherwise deny the allegations of paragraph 11 of the Complaint.
`
`12.
`
`Defendants admit that this Court has original subject matter jurisdiction over this
`
`matter.
`
`13.
`
`Defendants admit this Court has personal jurisdiction over them for purposes of
`
`this action. Defendants admit that Google maintains an office and employs personnel in New
`
`York and this District, and is thus physically present in the state. Defendants are without
`
`sufficient knowledge or information to form a belief as to the truth of the allegations that
`
`Plaintiffs Viacom International Inc. and Comedy Partners have their principal places of business
`
`in New York and in this District, and therefore deny them. Defendants deny the remaining
`
`allegations of paragraph 13 of the Complaint.
`
`14.
`
`Defendants admit that venue is proper in this District.
`
`PLAINTIFFS AND PLAINTIFFS’ BUSINESSES
`
`15.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 15 of the Complaint, and therefore deny them.
`
`16.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 16 of the Complaint, and therefore deny them.
`
`17.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 17 of the Complaint, and therefore deny them.
`
`18.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 18 of the Complaint, and therefore deny them.
`
`
`
`-3-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 4 of 12
`
`19.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 19 of the Complaint, and therefore deny them.
`
`20.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 20 of the Complaint, and therefore deny them.
`
`21.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 21 of the Complaint, and therefore deny them.
`
`22.
`
`Defendants are without sufficient knowledge or information to form a belief as to
`
`the truth of the allegations in paragraph 22 of the Complaint, and therefore deny them.
`
`23.
`
`Defendants deny the allegations in paragraph 23 of the Complaint.
`
`DEFENDANTS
`
`24.
`
`25.
`
`Defendants deny the allegations of paragraph 24 of the Complaint.
`
`Defendants admit that YouTube LLC is a Delaware limited liability company
`
`with its principal place of business in San Bruno, California. Defendants otherwise deny the
`
`allegations of Paragraph 25.
`
`26.
`
`Defendants admit that YouTube LLC is a wholly-owned subsidiary of Google
`
`Inc. (“Google”), and that Google Inc. is a Delaware corporation with it principal place of
`
`business in Mountain View, California. Defendants further admit that Google has a place of
`
`business in the State of New York, in this judicial district, and that Google acquired YouTube,
`
`Inc. for $1.65 billion in a transaction announced on October 9, 2006 and closed on November 13,
`
`2006. Defendants deny any remaining allegations of Paragraph 26.
`
`27.
`
`Defendants admit that YouTube LLC and Google today operate an online service
`
`called “YouTube” which can be accessed at the website www.youtube.com, and that the service
`
`is popular. Defendants deny the remaining allegations in paragraph 27 of the Complaint.
`
`
`
`-4-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 5 of 12
`
`28.
`
`Defendants admit that Google’s press release announcing that it had closed its
`
`acquisition of YouTube quoted Chad Hurley, CEO and Co-Founder of YouTube, as saying, “The
`
`community will remain the most important part of YouTube and we are staying on the same
`
`course we set out nearly one year ago.” Defendants admit that Google’s website includes a
`
`capability for users to search for video clips and receive search results that include links to clips
`
`on YouTube. Defendants deny the remaining allegations in paragraph 28 of the Complaint.
`
`NATURE OF THE ACTION
`
`29.
`
`Paragraph 29 of the Complaint states legal conclusions as to which no responsive
`
`pleading is required. To the extent a response is required, Defendants deny the allegations of
`
`paragraph 29 of the Complaint.
`
`30.
`
`Defendants admit that paragraph 30 of the Complaint quotes small excerpts from
`
`a YouTube, Inc. Press Release dated December 15, 2005. Defendants admit that YouTube
`
`encourages users to upload video clips to the service that the users have the right to upload, and
`
`that clips uploaded to the service are typically available for viewing free of charge by members
`
`of the public who have internet access. Defendants deny the remaining allegations in paragraph
`
`30 of the Complaint.
`
`31.
`
`Defendants admit that when a user uploads a video to the YouTube service, the
`
`video is copied into a software format, stored on YouTube’s computers, and made available for
`
`viewing through the YouTube service. Defendants admit that users of the YouTube service can
`
`search for videos stored on the service by entering a search query, and that they will receive a list
`
`of thumbnails – single frame images of video clips stored on the service – identified in response
`
`to that search query. Defendants admit that the purpose of these thumbnails is to help users find
`
`what they are searching for. Defendants deny the remaining allegations of paragraph 31 of the
`
`Complaint.
`
`
`
`-5-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 6 of 12
`
`32.
`
`33.
`
`Defendants deny the allegations of paragraph 32 of the Complaint
`
`Defendants admit that a YouTube user can send another person an email message
`
`containing a link to a video clip stored on the YouTube service, and that if the recipient of the
`
`email message clicks on the link the recipient will be able to view the video clip on the YouTube
`
`service. Defendants deny the remaining allegations of paragraph 33 of the Complaint.
`
`34.
`
`35.
`
`36.
`
`37.
`
`38.
`
`Defendants deny the allegations of paragraph 34 of the Complaint.
`
`Defendants deny the allegations of paragraph 35 of the Complaint
`
`Defendants deny the allegations of paragraph 36 of the Complaint.
`
`Defendants deny the allegations of paragraph 37 of the Complaint.
`
`Defendants admit that YouTube users must agree to Terms of Use prior to posting
`
`video clips to YouTube’s service. Defendants admit that the Terms of Use contain certain
`
`content-based restrictions on the types of videos users may upload and store on the service, and
`
`that YouTube reserves the right to remove from the service material uploaded in violation of
`
`YouTube’s Terms of Use. Defendants admit that paragraph 38 quotes an excerpt from
`
`YouTube’s Terms of Use. Defendants deny the remaining allegations in paragraph 38 of the
`
`Complaint.
`
`39.
`
`Defendants admit that YouTube has sent letters to third parties in which it
`
`accused them of enabling users to make unauthorized use of the YouTube service. Defendants
`
`deny the remaining allegations of paragraph 39 of the Complaint.
`
`40.
`
`Defendants admit that the YouTube service provides copyright protection tools
`
`that help copyright owners find clips that users have uploaded that the copyright holders may
`
`contend infringe their copyrights. Defendants further admit that these tools can prevent the
`
`reloading of copies of the same video clip after it has been removed from YouTube’s service
`
`
`
`-6-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 7 of 12
`
`following notice of alleged infringement from a copyright holder. Defendants deny the
`
`remaining allegations of paragraph 40 of the Complaint.
`
`41.
`
`42.
`
`43.
`
`Defendants deny the allegations of paragraph 41 of the Complaint.
`
`Defendants deny the allegations of paragraph 42 of the Complaint.
`
`Defendants admit that the YouTube service enables users to limit the audience of
`
`persons able to see video clips they upload to the service. Defendants admit that following
`
`Google’s acquisition of the YouTube service, the user search function on the service now
`
`identifies no more than 1,000 video clips for any given search by a user. Defendants deny the
`
`remaining allegations of paragraph 43 of the Complaint.
`
`44.
`
`45.
`
`Defendants deny the allegations of paragraph 44 of the Complaint.
`
`Defendants admit that Google CEO Eric Schmidt stated in a media interview that
`
`Google would offer anti-piracy technologies. Defendants deny the remaining allegations of
`
`paragraph 45 of the Complaint
`
`ANSWER TO CLAIMS FOR RELIEF
`
`COUNT I
`
`46.
`
`Defendants incorporate by reference their responses to paragraphs 1-45 as if set
`
`forth herein.
`
`47.
`
`48.
`
`49.
`
`50.
`
`51.
`
`Defendants deny the allegations of paragraph 47 of the Complaint.
`
`Defendants deny the allegations of paragraph 48 of the Complaint.
`
`Defendants deny the allegations of paragraph 49 of the Complaint.
`
`Defendants deny the allegations of paragraph 50 of the Complaint.
`
`Defendants deny the allegations of paragraph 51 of the Complaint.
`
`
`
`-7-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 8 of 12
`
`52.
`
`Defendants incorporate by reference their responses to paragraphs 1-51 as if set
`
`COUNT II
`
`forth herein.
`
`53.
`
`54.
`
`55.
`
`56.
`
`57.
`
`Defendants deny the allegations of paragraph 53 of the Complaint.
`
`Defendants deny the allegations of paragraph 54 of the Complaint.
`
`Defendants deny the allegations of paragraph 55 of the Complaint.
`
`Defendants deny the allegations of paragraph 56 of the Complaint.
`
`Defendants deny the allegations of paragraph 57 of the Complaint.
`
`COUNT III
`
`58.
`
`Defendants incorporate by reference their responses to paragraphs 1-57 as if set
`
`forth herein.
`
`59.
`
`60.
`
`61.
`
`62.
`
`63.
`
`Defendants deny the allegations of paragraph 59 of the Complaint.
`
`Defendants deny the allegations of paragraph 60 of the Complaint.
`
`Defendants deny the allegations of paragraph 61 of the Complaint.
`
`Defendants deny the allegations of paragraph 62 of the Complaint.
`
`Defendants deny the allegations of paragraph 63 of the Complaint.
`
`COUNT IV
`
`64.
`
`Defendants incorporate by reference their responses to paragraphs 1-63 as if set
`
`forth herein.
`
`65.
`
`66.
`
`67.
`
`68.
`
`69.
`
`Defendants deny the allegations of paragraph 65 of the Complaint.
`
`Defendants deny the allegations of paragraph 66 of the Complaint.
`
`Defendants deny the allegations of paragraph 67 of the Complaint.
`
`Defendants deny the allegations of paragraph 68 of the Complaint.
`
`Defendants deny the allegations of paragraph 69 of the Complaint.
`
`
`
`-8-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 9 of 12
`
`70.
`
`71.
`
`Defendants deny the allegations of paragraph 70 of the Complaint.
`
`Defendants deny the allegations of paragraph 71 of the Complaint.
`
`COUNT V
`
`72.
`
`Defendants incorporate by reference their responses to paragraphs 1-71 as if set
`
`forth herein.
`
`73.
`
`74.
`
`75.
`
`76.
`
`77.
`
`78.
`
`79.
`
`80.
`
`Defendants deny the allegations of paragraph 73 of the Complaint.
`
`Defendants deny the allegations of paragraph 74 of the Complaint.
`
`Defendants deny the allegations of paragraph 75 of the Complaint.
`
`Defendants deny the allegations of paragraph 76 of the Complaint.
`
`Defendants deny the allegations of paragraph 77 of the Complaint.
`
`Defendants deny the allegations of paragraph 78 of the Complaint.
`
`Defendants deny the allegations of paragraph 79 of the Complaint.
`
`Defendants deny the allegations of paragraph 80 of the Complaint.
`
`COUNT VI
`
`81.
`
`Defendants incorporate by reference their responses to paragraphs 1-80 as if set
`
`forth herein.
`
`82.
`
`83.
`
`84.
`
`85.
`
`86.
`
`87.
`
`88.
`
`89.
`
`Defendants deny the allegations of paragraph 82 of the Complaint.
`
`Defendants deny the allegations of paragraph 83 of the Complaint.
`
`Defendants deny the allegations of paragraph 84 of the Complaint.
`
`Defendants deny the allegations of paragraph 85 of the Complaint.
`
`Defendants deny the allegations of paragraph 86 of the Complaint.
`
`Defendants deny the allegations of paragraph 87 of the Complaint.
`
`Defendants deny the allegations of paragraph 88 of the Complaint.
`
`Defendants deny the allegations of paragraph 89 of the Complaint.
`
`
`
`-9-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 10 of 12
`
`DEFENSES
`
`FIRST DEFENSE (DMCA SAFE HARBORS)
`
`Plaintiffs’ claims are barred in whole or in part because Defendants are protected by one
`
`or more of the DMCA Safe Harbors in 17 U.S.C. § 512.
`
`SECOND DEFENSE (LICENSE)
`
`Plaintiffs’ claims are barred in whole or in part by licenses, express and implied, granted
`
`or authorized to be granted by Plaintiffs.
`
`THIRD DEFENSE (FAIR USE)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of fair use.
`
`FOURTH DEFENSE (FAILURE TO MITIGATE)
`
`Plaintiffs’ claims are barred in whole or in part because Plaintiffs have failed to mitigate
`
`their damages, if any.
`
`FIFTH DEFENSE (FAILURE TO STATE A CLAIM)
`
`Plaintiffs’ allegations fail to state a claim for copyright infringement of any work not
`
`listed on Exhibit A of the Complaint.
`
`SIXTH DEFENSE (INNOCENT INTENT)
`
`Plaintiffs’ damages, if any, are limited by Defendants’ innocent intent.
`
`SEVENTH DEFENSE (COPYRIGHT MISUSE)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of copyright misuse.
`
`EIGHTH DEFENSE (ESTOPPEL)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel.
`
`NINTH DEFENSE (WAIVER)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.
`
`
`
`-10-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 11 of 12
`
`TENTH DEFENSE (UNCLEAN HANDS)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands.
`
`ELEVENTH DEFENSE (LACHES)
`
`Plaintiffs’ claims are barred in whole or in part by the doctrine of laches.
`
`TWELFTH DEFENSE (SUBSTANTIAL NON-INFRINGING USE)
`
`Plaintiffs’ claims are barred in whole or in part based on the doctrine of substantial non-
`
`infringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine’s
`
`inapplicability.
`
`RELIEF REQUESTED
`
`WHEREFORE, Defendants respectfully request the following relief:
`
`1.
`
`A judgment in favor of Defendants denying Plaintiffs all relief requested in their
`
`Complaint in this action and dismissing Plaintiffs’ Complaint with prejudice;
`
`2.
`
`That Defendants be awarded their costs of suit, including reasonable attorney’s
`
`fees; and;
`
`3.
`
`That the Court award Defendants such other and further relief as the Court deems
`
`just and proper.
`
`DEMAND FOR JURY TRIAL
`
`In accordance with Fed. R. Civ. P. 38(b), Defendants demand a trial by jury on all issues
`
`so triable.
`
`Date: April 30, 2007
`
`
`
`
`
`Respectfully submitted,
`
`s/
`Jonathan M. Jacobson (JJ-0605)
`Tonia Ouellette Klausner (TOK-8279)
`WILSON SONSINI GOODRICH & ROSATI
`PROFESSIONAL CORPORATION
`1301 Avenue of the Americas, 40th Floor
`New York, New York 10019
`(212) 999-5800
`
`-11-
`
`

`

`Case 1:07-cv-02103-LLS Document 21 Filed 04/30/07 Page 12 of 12
`
`David H. Kramer*
`WILSON SONSINI GOODRICH & ROSATI
`PROFESSIONAL CORPORATION
`650 Page Mill Road
`Palo Alto, CA 94304
`(650) 493-9300
`
`Philip S. Beck*
`Mark S. Ouweleen*
`Shayna S. Cook*
`Bartlit Beck Herman Palenchar & Scott LLP
`Courthouse Place
`54 W. Hubbard St.
`Chicago, IL 60610
`(312) 494-4400
`
`(*pro hac vice admission to be requested)
`
`Attorneys for Defendants YouTube, Inc.,
`YouTube, LLC and Google Inc.
`
`-12-
`
`
`
`
`
`

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