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`Case 1:14-cv-02396-PGG-SN Document 267 Filed 09/07/22 Page 1 of 3
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`ANDREW V. TRASK
`(202) 434-5023
`atrask@wc.com
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`VIA ECF
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`September 7, 2022
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`Hon. Paul G. Gardephe
`U.S. District Court, Southern District of New York
`40 Foley Square, Room 2204
`New York, NY 10007
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`Re: Network-1 Technologies, Inc. v. Google LLC, et al., Nos. 1:14-cv-2396-PGG-
`SN & 1:14-cv-9558-PGG-SN (S.D.N.Y.)
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`Dear Judge Gardephe:
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`I write on behalf of Defendants Google LLC and YouTube, LLC (collectively, “Google”)
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`to request leave to file under seal five exhibits submitted in connection with the parties’ joint
`letter regarding a dispute arising from a supplemental expert report served on August 26, 2022
`by Plaintiff Network-1 Technologies, Inc. (“Network-1”). Specifically, Google seeks leave to
`seal portions of the recently served expert report that is the subject of the joint letter (Exhibit A)
`as well as excerpts of two expert reports previously served by Google (Exhibits B and C), an
`excerpt of the transcript of a deposition of a Google employee (Exhibit D), and an interrogatory
`response (Exhibit F). In each instance, Google has applied targeted redactions to the exhibits,
`and it is not seeking to seal the filing in its entirety. In accordance with Rule II.B of the Court’s
`Individual Rules, Google will publicly file the documents with the proposed redactions and file
`under a seal a copy of the unredacted documents with the redactions highlighted. Network-1
`does not object to the proposed redactions.
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`The exhibits that Google seeks leave to file in redacted form have been designated
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`“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.” ECF No. 48 ¶ 3. Google respectfully submits that its
`redactions are warranted because its interests in maintaining the confidentiality of certain
`commercially sensitive information outweigh the “presumption of access” that generally attaches
`to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir.
`2006); see id. at 120 (explaining that a court should “balance competing considerations” when
`determining whether sealing is warranted, including “the privacy interests of those resisting
`disclosure”). Many of the redacted passages describe specific techniques for structuring or
`searching data that Google keeps confidential in order to preserve its competitive standing. For
`example, a number of the redactions cover portions of expert reports that characterize
`confidential source code that implements aspects of Google’s Content ID system. See, e.g., Ex.
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`Case 1:14-cv-02396-PGG-SN Document 267 Filed 09/07/22 Page 2 of 3
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`September 7, 2022
`Page 2
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` A
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` ¶¶ 53–54 and 126–28. Other passages have been redacted because they contain descriptions
`by fact of expert witnesses of 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., id. ¶¶ 49–52 and 107–112. Courts routinely authorize the
`sealing of this kind of confidential “technical information” because public disclosure “could
`allow competitors an unfair advantage, and would thus be highly prejudicial.” Kewazinga Corp.
`v. Microsoft Corp., 1:18-cv-4500-GHW, 2021 WL 1222122, *7 (S.D.N.Y. Mar. 31, 2021)
`(evaluating a request in a patent infringement litigation to seal “confidential and proprietary data
`collection procedures, image processing procedures, specific hardware used to perform these
`procedures, and confidential details about … specific algorithms and the names of specific
`variables and functions in [the defendant’s] source code”); see also 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”).
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`The particular design choices and other technical details reflected in the redacted
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`passages are the result of extensive research and development efforts by teams of Google
`computer scientists and software engineers. Publicizing the confidential details of the techniques
`used 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. The
`proposed redactions are therefore necessary to avoid competitive harm. 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”). 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 avoid these kinds of harms to parties and non-parties. See, e.g.,
`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”).
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`As the enclosed highlighted exhibits indicate, Google’s proposed redactions are limited to
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`the confidential and commercially sensitive details regarding Google’s Content ID system and
`related aspects of its internal operations. Google is not seeking to seal this filing in its entirety,
`and the arguments advanced in the parties’ joint letter will remain on the public docket. This
`targeted approach is 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. &
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`Case 1:14-cv-02396-PGG-SN Document 267 Filed 09/07/22 Page 3 of 3
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`September 7, 2022
`Page 3
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`Indus. Research Org., No. 2:17-cv-503-HCM, 2020 WL 973751, at *15–16 (E.D. Va. Feb. 7,
`2020) (sealing exhibits 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”).
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` For the foregoing reasons, Google respectfully requests leave to file redacted versions of
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`Exhibits A through D and Exhibit F to the parties’ joint letter of September 7, 2022.
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`Sincerely,
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`/s/ Andrew V. Trask
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`Andrew V. Trask
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`Cc: Counsel of Record (via ECF)
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