They cant have it both ways.
gonna be interesting !
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
Francis C.J. Pizzulli (State Bar No. 67151)
718 Wilshire Blvd.
Santa Monica, CA 90401
Telephone: (310) 451-8020
Fax: (310) 458-6156
E-mail: pizzullilaw@yahoo.com
Attorney for Plaintiff
Robert Tur d/b/a Los Angeles News Service
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ROBERT TUR d/b/a LOS ANGELES
NEWS SERVICE,
Plaintiff,
v.
YOUTUBE, INC.,
Defendant.
_________________________________
Case No. CV 06-4436-FMC (AJWx)
NOTICE OF MOTION AND MOTION
FOR SUMMARY ADJUDICATION
OF DEFENDANT’S FIRST
AFFIRMATIVE DEFENSE
OF DMCA SAFE HARBOR;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
ROBERT F. TUR AND
ACCOMPANYING EXHIBITS
Fed. R. Civ. P. 56
Date of hearing: December 4, 2006
Time: 10:00 a.m.
Court: The Honorable
Florence-Marie
Cooper
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
PLEASE TAKE NOTICE that on December 4, 2006 at 10:00 a.m. or as
soon thereafter as counsel may be heard, Plaintiff Robert Tur will move the Court
for a partial summary judgment and/or, in the alternative, an order to specify
material facts that appear without substantial controversy in connection with
Defendant YouTube’s First [Affirmative] Defense (DMCA Safe Harbor). In
particular, Plaintiff Tur seeks an order specifying that, contrary to the requirement
of 17 U.S.C. §512(c)(1)(A), YouTube does receive a financial benefit directly
attributable to the infringing activity alleged herein, in a case in which the service
provider has the right and ability to control such activity, and therefore, that
Defendant YouTube is barred from relying upon the DMCA safe harbor in this
case.
This motion is made following the conference of counsel pursuant to L.R. 7-
3, which took place on October ___, 2006.
This motion is based upon the attached Memorandum of Points and
Authorities, the Declaration of Robert Tur and accompanying exhibits, and
pleadings and papers on file herein, along with the accompanying Statement of
Uncontroverted Facts and Conclusions of Law, Fed. R. Civ. P. 56(d), in Support of
Plaintiff’s Motion for Summary Adjudication of Defendant’s First Affirmative
Defense of DMCA Safe Harbor; and [Proposed] Order Specifying Material Facts
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
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Without Substantial Controversy and Conclusion of Law Re: First Defense of
DMCA Safe Harbor.
Dated: November ___, 2006
_____________________________
Francis C. Pizzulli
Attorney for Plaintiff Robert Tur,
d/b/a Los Angeles News Service
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
There can be no dispute that serious and repetitive infringements of Tur’s
copyrighted works are displayed on Defendant’s website, YouTube.com, on a daily
basis. As is evident from YouTube’s publicity campaign, directed against its
reputation as an, e.g., “bootleg-heavy site,”1 YouTube’s first and paramount
defense is the safe harbor provided by 17 U.S.C. §512(c)(1) of the Digital
Millennium Copyright Act (“DMCA”), more particularly, the Online Copyright
Infringement Liability Limitation Act (“OCILLA”) portion of the DMCA. Despite
the potential complexities of this case, however, the First [Affirmative] Defense of
DMCA Safe Harbor is relatively simple to adjudicate. That is because one of the
three essential conditions for a putative Internet service provider to escape direct,
contributory or vicarious liability for undisputed copyright infringement, occurring
on its website cannot be satisfied as a matter of undisputed fact. The source of the
undisputed facts is party admissions derived from YouTube’s very own website.
Adjudication of this motion should therefore streamline discovery and
further proceedings in this case.
1 Los Angeles Times, ___ [date], ___ [page], Fed. Evid. R. ____.
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SUMMARY
The safe harbor immunity provided by 17 U.S.C. §512(c)(1) of OCILLA is
not met by YouTube with respect to the infringements of Tur’s works appearing on
YouTube.com because YouTube receives a financial benefit in the form of banner
advertising directly attributable to the infringing video clips. See, e.g., Exhibits
___.
BACKGROUND
Plaintiff Robert Tur is a pioneering television journalist who, in connection
with his Los Angeles News Service, has obtained numerous copyright registrations
for segments of newsworthy videotape footage.
Plaintiff’s tape library of over 10,000 hours includes works such as Tur’s
first-on-the-scene tracking of the ignominious 1994 freeway chase of O.J. Simpson
(PA-733-108). In 1992, Tur reported exclusively over the intersection of Florence
and Normandie the shocking attack upon Reginald Denny at the start of the 1992
Los Angeles riots (PA-576-704).
Over the past two decades, Tur has helped the copyright owners of
newsworthy works generally in successfully litigating limitations to the assertion
of “fair use” as an excuse for pirating news organizations’ copyrights. See, e.g.,
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002);
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
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Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997);
Los Angeles News Service v. Tullo, 973 F.2d 791 (9th Cir. 1992).
Tur filed this complaint well before any news of a pending $1.6 billion
acquisition of Defendant YouTube by Google, Inc. Rather, in light of MGM, Inc.
v. Grokster Ltd., (___ U.S. ___, 125 S. Ct. 2764 (2005)), Tur was called upon to
file this complaint, a la Cincinnatus, to address a new threat to news media
copyrights.
YouTube operates a web site where users may post audiovisual content for
viewing via “streaming” through the YouTube website. YouTube Answer, ¶14.
Defendant YouTube was started in approximately February, 2005, and its service
was publicly launched December 15, 2005. YouTube has grown into one of the
most popular video services on the Internet. Approximately 65,000 clips are
uploaded to the YouTube service per day, with more than 100 million views per
day of videos on YouTube.com. Id., ¶¶17-18 and 35.
Tur’s copyrighted works are routinely infringed by users of the YouTube
service, and thereby with the direct, contributory and/or vicarious liability of
YouTube. See Tur Declaration.
YouTube attempts to immunize itself from liability under MGM, Inc. v.
Grokster Ltd., supra, principally by relying upon 17 U.S.C. §512(c)(1).
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YOUTUBE DOES NOT QUALIFY FOR THE DMCA/OCILLA SAFE
HARBOR, AS A MATTER OF LAW, BECAUSE OF THE DIRECT
ADVERTISING BENEFITS IT OBTAINS FROM
THE INFRINGEMENTS OF TUR’S WORKS.
YouTube’s first defense of DMC/OCILLA safe harbor is based upon
§512(c)(1), as follows:(c) Information residing on systems or networks at direction of
users.
(1) In general. A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of
the storage at the direction of a user of material that resides on a
system or network controlled or operated by or for the service
provider, if the service provider–
(A) (i) does not have actual knowledge that the
material or an activity using the material on the system or network is
infringing;
(ii) in the absence of such actual knowledge,
is not aware of facts or circumstances from which infringing activity
is apparent; or
(iii) upon obtaining such knowledge or
awareness, acts expeditiously to remove, or disable access to, the
material;
(B) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which the service
provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as
described in paragraph (3), responds expeditiously to remove, or
disable access to, the material that is claimed to be infringing or to be
the subject of infringing activity.
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YouTube, however, cannot satisfy the necessary condition of §512(c)(1)(b).
As is manifest in Exhibit 1-___ attached hereto, YouTube applies banner
advertising to the locations on its website where infringing copies of Tur’s works
have been uploaded and are displayed. In addition, YouTube advertises in
juxtaposition to the infringing clips of Tur’s works, promotions for other
advertises in juxtaposition to the infringing clips of Tur’s works, promotions for
other YouTube site locations, as well as promoting its branding. See Tur Decl. and
exhibits.
YouTube admits in its answer what is obvious from the attached screencaptured
exhibits, i.e., that it sells advertising on its Website. Answer, ¶20. See
also, e.g., Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 858 (C.D. Cal. 2006)
(broad definition of “direct financial benefit” would encompass even a “future
hope to ‘monetize,’ citing 4 Nimmer on Copyright § 12.04[A][1] (2005)
(commenting on A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001))).
Further, YouTube further admits that, in effect, that it “has the right and
ability to control such [infringing] activity”, within the meaning of §512(c)(1)(B)
by virtue of its online User Agreement. In relevant part, the User Agreement,
which is entered into electronically by each user of YouTube, grants and entitles
YouTube as follows:
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. . . .hereby grant[s] YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
derivative works thereof) in any media formats and through any
media channels. [You] also hereby grant each user of the YouTube
Website a non-exclusive license to access [your] User Submissions
through the Website, and to use, reproduce, distribute, prepare
derivative works of, display and perform such User Submissions as
permitted through the functionality of the Website and under these
Terms of Service….
Tur Decl., ¶ 7.
Thus, given YouTube’s inability to comply with §512(c)(1)(B),
YouTube should be precluded from relying on a safe harbor defense. Such
an adjudication, pursuant to Fed. R. Civ. P. 56(d), will substantially
streamline discovery, pretrial, and trial proceedings in this case. For
example, partial summary judgment/summary adjudication of the First
Defense will obviate or truncate substantial discovery and issues otherwise
pertinent to the safe harbor defense, such as:
1. Whether YouTube qualifies as a §512(k) service provider;
2. The timing and/or extent of the actual knowledge of YouTube
that the registered works were being infringed;
3. Whether and when, and to what extent, YouTube was aware of
the facts or circumstances from which infringing was or should be apparent;
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4. Whether and when, and to what extent, upon obtaining such
knowledge or awareness of the infringing activity, YouTube has acted
expeditiously to remove or disable access to infringing material;
5. Whether an alleged “take-down procedure”, in the context of
YouTube’s business-operational model, qualifies as a meaningful take-down
of infringing material if, as with Tur’s notice of infringements in his
complaint, the alleged take-down is immediately followed by an even
greater number of infringing uploads of the cited work on a continuing
basis.
6. Whether YouTube qualifies as a storage-at-the-direction-ofusers
service provider, within the meaning of §512(c), where the YouTube
service manipulates, categorizes, sorts, and promotes the audiovisual data
uploaded by its users, as well as to link and embed video clips with other
sites.
Thus, it would be an appropriate use of Rule 56(d) to adjudicate the
First Defense. As explained in Boston Scientific Corp. v. B. Cordis Corp.,
422 F. Supp. 2d 1102, 1106 (N.D. Cal. 2006):
Plaintiffs’ motions do not dispose of the entire case – they
merely prevent Cordis from asserting anticipation and priority as
affirmative defenses. Accordingly, the Court regards the motions as
motions for partial summary judgment.
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
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Although motions for partial summary judgment are common,
Rule 56 of the Federal Rules of Civil Procedure, which governs
summary judgment, does not contain an explicit procedure entitled
“partial summary judgment.” However, inherent in Rule 56 is
authority of the District Court to grant partial summary judgment, i.e.,
on a particular claim or a particular affirmative defense, even if doing
so would leave other triable issues.
Therefore, the motion should be granted.
Dated: November ___, 2006 Respectfully submitted,
_____________________________
Francis C.J. Pizzulli
Attorney for Plaintiff Robert Tur
d/b/a Los Angeles News Service
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
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DECLARATION OF ROBERT TUR
I, Robert Tur, declare as follows:
1. I [along with Marika ________ and __________] am an owner of the
Los Angeles News Service (“LANS”).
2. LANS is a duly accredited news gathering and reporting organization,
which produces video and audio tape recordings of newsworthy events.
3. LANS both operates and contracts to other news organizations and
licenses and sells news video, videotapes, photographs, and other products used by
other news operations for all media, including television, cable, motion picture,
Internet and print media.
4. I am the owner of, inter alia, the following registered copyrighted
works:
a. PA-576-702: “Beating of man in brown hatchback with
rescue;”
b. PA-576-703: “Beating of man in white panel truck;”
c. PA-839-603: “Earthquake;”
d. PA-576-704: “Beating of Reginald Denny”, and
e. PA-862-544: “North Hollywood shootout.”
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Each of these five works (collectively, “Infringed Works-A”) has b
een uploaded
on the YouTube website, YouTube.com, both before the filing of the complaint in
this case, after service of the complaint on YouTube, and presently.
5. At no time have I given an assignment, license, or permission of any
kind to YouTube or to any of its users who have uploaded my copyrighted works
onto YouTube.com.
6. A representative set of infringements currently ongoing of my
Infringed Works-A include Exhibits 1-___, attached hereto. These exhibits are
true and correct copies of downloads of YouTube.com taken on ________, 2006.
Each of them shows a frame from one of my Infringed Works A juxtaposed against
the following types of advertising: (a) banner advertising – such as for NetFlix;
(b) promotion of other YouTube.com videos (on the right side of the screen
captured); (c) promotion/branding of the YouTube.com logo and name (at the
upper part of the screen captured).
7. At the YouTube.com website is the User Agreement, which must
automatically be accepted electronically by each user. Section 5.B of the User
Agreement states in relevant part:
…you hereby grant YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
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derivative works thereof) in any media formats and through any media
channels. You also hereby grant each user of the YouTube Website a
non-exclusive license to access your User Submissions through the
Website, and to use, reproduce, distribute, prepare derivative works of,
display and perform such User Submissions as permitted through the
functionality of the Website and under these Terms of Service….
The foregoing facts are within my personal knowledge, and I could
competently testify to them.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed this 13th day of November, 2006 at Santa Monica, California.
_______________________
Robert Tur
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a party to the within action; my business address Boulevard, Santa Monica, California 90401.
On November 13, 2006, I served the foregoing document described as
NOTICE OF MOTION AND MOTION FOR SUMMARY
ADJUDICATION OF DEFENDANT’S FIRST AFFIRMATIVE
DEFENSE OF DMCA SAFE HARBOR; MEMORANDUM OF
-POINTS AND AUTHORITIES; DECLARATION OF ROBERT TUR
ANDACCOMPANYING EXHIBITS FED. R. CIV. P. 56
on the interested parties in this action by placing a true copy thereof, enclosed in a
sealed envelope, addressed as follows:
BY U.S. MAIL I placed such envelope, with postage fully prepaid thereon,
in the United States mail at Santa Monica, California.
X BY PERSONAL SERVICE / FAX. By stipulation of counsel, papers in
connection with this motion are deemed personally served upon Defendant
YouTube, Inc. on the day of fax transmission thereof prior to 5 p.m. PST.
Claire E. Goldstein
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Fax: (650) 802-3100
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct and that this declaration was executed on
November 13, 2006 at Santa Monica, California.
__________________________
S. Hathaway