Case 1:14-cv-02396-PGG-SN Document 222 Filed 11/11/20 Page 1 of 4
`
`
`
`ANDREW TRASK
`(202) 434-5023
`atrask@wc.com
`
`
`
`
`
`
`
`VIA ECF
`
`November 11, 2020
`
`
`
`Hon. Paul G. Gardephe
`United States District Court
`Southern District of New York
`40 Foley Square, Room 2204
`New York, NY 10007
`
`
`Re: Network-1 Technologies, Inc. v. Google LLC, et al., Nos. 1:14-cv-2396 &
`1:14-cv-9558 (S.D.N.Y.)
`
`
`Dear Judge Gardephe:
`
`I write on behalf of Defendants Google LLC and YouTube, LLC (collectively, “Google”)
`
`to request leave to file under seal several documents that will be submitted in connection with
`Google’s Motion for Summary Judgment and Network-1’s Motion for Summary Judgment.
`
`I.
`
`Documents Submitted with Google’s Motion for Summary Judgment That Google
`Seeks Leave to Redact and Seal
`
`Google respectfully requests leave to file redacted versions of the briefs and certain
`
`exhibits that will be submitted in connection with its Motion for Summary Judgment. A
`complete list of the documents that Google seeks leave to file in redacted form is enclosed as
`Exhibit A.
`
`
`
`Plaintiff Network-1 Technologies, Inc. (“Network-1”) does not object to the proposed
`redactions, and in submitting its opposition to Google’s Motion for Summary Judgment it will
`file several documents containing redactions of similar material. In addition, Network-1 will file
`under seal certain internal Google documents that it has obtained through discovery in these
`cases. A complete list of the documents that Network-1 will file in redacted form and under seal
`is enclosed as Exhibit B.1
`
`1 In accordance with Rule II.B of the Court’s Individual Rules of Practice in Civil Cases, the
`parties will publicly file the documents with the proposed redactions and electronically file under
`a seal a copy of the unredacted documents with the redactions highlighted.
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 222 Filed 11/11/20 Page 2 of 4
`
`
`
`
`Hon. Paul G. Gardephe
`November 11, 2020
`Page 2
`
`The materials accompanying Google’s Motion for Summary Judgment that the parties
`
`intend to file in redacted form and under seal have been designated “Confidential Outside
`Counsel Only” by Google under the Stipulated Confidentiality Agreement and Protective Order
`because they contain “non-public, confidential information that provides a commercial
`advantage” and that “describes with particularity the technical implementation” of Google’s
`“products or services.” -2396 Case, Dkt. No. 48 ¶ 3. Google acknowledges “that documents
`submitted to a court for its consideration in a summary judgment motion are … judicial
`documents to which a strong presumption of access attaches,” even if they are subject to a
`confidentiality agreement or protective order. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
`110, 121 (2d Cir. 2006). Google respectfully submits, however, that there are “compelling
`reasons” for the proposed sealing in this case. Id. at 123; see id. at 120 (explaining that a request
`to file “judicial documents” under seal involves a “balance [of] competing considerations,”
`including “the privacy interests of those resisting disclosure”).
`
`The redacted passages describe specific techniques for structuring or searching data that
`
`Google has not disclosed publicly and that are kept confidential in order to preserve Google’s
`competitive standing. A number of the redacted passages reference or characterize the
`confidential source code that implements portions of Google’s Content ID system. See, e.g., Ex.
`6 to Google’s Mot. Summ. J. ¶¶ 63–64 and 73–75. Other passages have been redacted because
`they describe proprietary algorithms or parameters used by Google in its Content ID system that
`could not be ascertained without access to Google’s confidential source code or related
`documentation. See, e.g., Google’s R. 56.1 Stmt. ¶¶ 34–42 and 45–56. Courts routinely
`authorize the sealing of this kind of confidential technical information, including when it is
`submitted in connection with a motion for summary judgment. See, e.g., Hypnotic Hats, Ltd. v.
`Wintermantel Enters., LLC, 335 F. Supp. 3d 566, 600 (S.D.N.Y. 2018) (explaining that
`“categories commonly sealed” include documents “containing trade secrets” or “confidential
`research and development information”); Guzik Tech. Enters., Inc. v. W. Digital Corp., No. 5:11-
`cv-3786-PGS, 2013 WL 6576266, at *3–4 (N.D. Cal. Dec. 13, 2013) (sealing documents
`submitted in connection with a motion for summary judgment of non-infringement that
`“contain[] confidential technical information relating to the operation of [a party’s] products”).
`
`The proposed redactions are necessary to avoid competitive harm. The particular design
`
`choices reflected in the production versions of Google’s Content ID system are the result of
`extensive research and development efforts by teams of Google computer scientists and software
`engineers. Publicizing the configurations selected by Google could allow competitors to benefit
`from Google’s substantial investments in its proprietary methods for determining instances of
`reuse of video, audio, and melody content. Moreover, the Content ID system was designed in
`part to discover and deter adversarial behavior by copyright infringers, including those who
`intentionally modify copyrighted music, movies, and other works in an effort to distribute them
`unlawfully without detection. Infringers could attempt to exploit knowledge of the confidential
`techniques and parameters used by Google, which could prove detrimental not only to Google
`itself, but also to copyright holders who rely on the Content ID system to manage reuse of their
`content on YouTube. It is well established that judicial records should be sealed in order to
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 222 Filed 11/11/20 Page 3 of 4
`
`
`
`
`Hon. Paul G. Gardephe
`November 11, 2020
`Page 3
`
`avoid these kinds of competitive harms. See. e.g., Nixon v. Warner Commncn’s, Inc., 435 U.S.
`589, 598 (1978) (observing that “the right to inspect and copy judicial records is not absolute”
`and noting approvingly that courts have sealed “business information that might harm a litigant’s
`competitive standing”); Louis Vuitton Malletier S.A. v. Sunny Merchandise Corp., 97 F. Supp. 3d
`485, 511 (S.D.N.Y. 2015) (approving redactions to “judicial documents” that were “generally
`limited to specific business information and strategies, which, if revealed, may provide valuable
`insights into a company’s current business practices that a competitor would seek to exploit”).
`
`The proposed sealing is “narrowly tailored to achieve” the important objectives of
`
`preserving the confidentiality of the technical details of Google’s Content ID system and
`preventing the competitive harm that could result from disclosure. See Lugosch, 435 F.3d at
`121. Although Google seeks leave to seal specific passages and original documents that describe
`confidential techniques or parameters, it is not asking the Court to seal entire briefs or shield the
`parties’ arguments or legal theories from public view. Google’s targeted redactions preserve the
`privacy of particular technical details without impeding the public disposition of this matter. The
`proposal therefore is fully consistent with the balance that courts must strike in determining
`which materials merit sealing. See, e.g., GoSMiLE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C.,
`769 F. Supp. 2d 630, 649–50 (S.D.N.Y. 2011) (concluding that certain documents should remain
`sealed because “the privacy interests of the defendants” with respect to “proprietary material
`concerning the defendants’ marketing strategies, product development, costs and budgeting”
`should “outweigh the presumption of public access”); BASF Plant Sci., LP v. Commonwealth
`Sci. & Indus. Research Org., No. 2:17-cv-503-HCM, 2020 WL 973751, at *15–16 (E.D. Va.
`Feb. 7, 2020) (sealing documents submitted with motions for summary judgment that reflect
`“confidential commercial information” because, among other things, “the parties have filed
`detailed public versions, which do not seek to completely seal their briefing, outlining in detail
`the legal and factual issues raised by the motions”).
`
` For the foregoing reasons, Google respectfully requests leave to file redacted versions of
`
`the documents listed in Exhibit A, and respectfully requests that Network-1 be granted leave to
`file in redacted form and under seal the documents listed in Exhibit B.
`
`II.
`
`Documents Submitted with Network-1’s Motion for Summary Judgment That
`Third-Party Relatable LLC Seeks Leave to Redact
`
`Some of the exhibits that will be filed in connection with Network-1’s Motion for
`
`Summary Judgment describe documents that have been designated “Confidential” by third-party
`Relatable LLC (“Relatable”) under the Stipulated Confidentiality Agreement and Protective
`Order. Relatable is not represented by counsel in this matter, but it has been informed of the
`standard for sealing and has requested that the parties file in redacted form the exhibits to
`Network-1’s Motion for Summary Judgment listed in Exhibit C.
`
`The passages that Relatable wishes to redact describe the particular details of certain
`
`source code developed by Relatable, which has indicated that these redactions are necessary for
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 222 Filed 11/11/20 Page 4 of 4
`
`
`
`
`Hon. Paul G. Gardephe
`November 11, 2020
`Page 4
`
`the following reasons: “Relatable LLC has made substantial investments in developing key
`technologies – often well-ahead of their time. Relatable LLC continues to retain rights in
`considerable IP, trade secrets, know-how and other intangible assets that it believes have
`significant value. The redactions requested would protect against wider disclosure beyond the
`limited disclosures designated by this litigation, and thus preserve Relatable’s rights in such IP
`for the potential future benefit of its owners.” The parties do not object to Relatable’s proposed
`redactions.2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Enclosures
`
`Cc: Counsel of Record (via ECF)
`
`Sincerely,
`
`/s/ Andrew V. Trask
`
`Andrew V. Trask
`
`
`2 Because Relatable is not represented by counsel, Google is conveying Relatable’s justification
`for its proposed redactions in this letter in lieu of requesting that Relatable file its own letter in
`the manner described in Rule II.B of the Court’s Individual Rules of Practice in Civil Cases.
`
`