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database of reference hashes. Hash comparisons work
most effectively when two videos are completely
identical.”) (GOO001-07171347)

K. Walker Tr. 130:14-18 (Tab 116) (“YouTube had a
system called MDS hashing, which identified unique
copies of a given video, and when we received a DMCA
notice for one version, I believe we would block other
versions that also had that same hash.”)

Cuong Do Tr. 134:21-135:2 (Tab 11) (“Q. And I think
you said if you have exactly the same content in another
file as the original video file, it would produce the exact
same Hash. Is that right? A. That's right.Q. Butif
you change the content one iota, it produces a different
Hash? A. That's right.”)

18. Defendants permit videos
containing content that had been the
subject of DMCA takedowns to be
reposted on the website.

Levine Ex. 24 (GO0001-01918032) (Tab 86) (Fuji
Television: “Even if a video of a certain program is
deleted, the same content is uploaded, again, over and
over. We are very disappointed at how unproductive
this process is...”)

Gillette Ex. 13 (GO0001-00041715-20) (Tab 30)
(Copyright owner submits DMCA notices and states “I
expect that there will be more videos uploaded this
evening and into the night. I will continue to use the
verification tool to request that you remove the videos
that are infringing on our copyrights.”) (GOO001-
00041716)

Videos from YouTube (Tab 188) (Display of reposted
clips of Class Plaintiffs’ works.)

19. By their own analysis of
content, including infringing content,
on YouTube, Defendants recognize
professionally produced sports
programming as among the array of
content attracting substantial
viewership.

Ellerson Ex. 10 (GO0001-02519867-73) (Tab 22)
(Ellerson: “Our opinion ~ based in particular on the
recent analysis... done on query stream data... is that
Chad’s initial conclusion [that ‘users... don’t want to
watch professionally produced content’] is not correct.
This data suggests that our users do want to watch
professional content, but we either haven’t yet licensed
the content that they’re looking for, or, for content that
we have licensed, we are not doing the best job that we
can to surface that content for users... Of the Top 100
Playback Queries... Music = EE... Non -Music
Premium = Of ‘Premium’ content queries: ...

18



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the number that they had randomly chosen and -- and
were able to categorize with these subcategorizations.”
92:20-93:17 (Tab 178) (“Q: And the premium/rémoved
category includes content that is copyrighted in whole
or substantial part, plus removed, which are links that
were taken down; right? A: Yeah, that's how it's
categorized here from -- from the Google folks. Q: And
the no category is categorized here by

the people from Google as no copyright but includes
commercials, trailers, public service, promos, and

true UGC; right?...”)

14. Google management recognized
the risk of infringement liability
arising from YouTube’s policies and
practices, but nonetheless sought to
expand its business by continuing
those policies and practices.

Schmidt Ex. 2 (CSSU003560-86) (Tab 108) (Credit
Suisse Analysis had calculated percentages of Premium
content.) (CSSU003570)

Schmidt Tr. 109:20-21 (Tab 111) (“our policy from
acquisition was to grow the user base.”)

Yu Ex, 9 (SC009721-26) (Tab 125) (Term Sheet for the
Acquisition of YouTube, Inc. By Google, Inc. —
“Indemnification of Google... the representations and
warranties related to intellectual property shall survive
for three years.”) (SC009725)

Schmidt Ex. 8 (GO0001-00496614-00496647) (Tab
109) (Google perceived You Tube as “trafficking
mostly illegal content — it’s a Video Grokster.”)
(GO0001-00496619-20; GOO001-004966330)

Narasimhan Ex. 8 (GOO001-06555098-99) (Tab 94)
(“Google Video Community Policing Change...“tonight
we are planning on changing our process for reviewing
videos on Google Video... Videos under 11 mins will
be indexed and will go live without review... “on the
front end, users will be able to flag videos as
inappropriate and will be able to specify from one of the
following categories: pornography, obscenity, graphic
violence, racially or ethnically hateful content, and other
content inappropriate for young viewers.”) (GOO001-
06555098)

15. YouTube identifies
“premium” content on its site and

Maryrose Dunton Tr. '-18 (Tab 18) (Tab

18) (Q: Okay. Then you respond ‘oh, what I meant to

12

!
i

niente at


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a quick look through the index and post on the sparrow
page/take down any clearly infringing, official
broadcast footage that you notice from these right
holders below... Liverpool Football FC... Chelsea
Football FC... Manchester United Football Club...
Arsenal Footbal Club... Sky Sports.”) (GOO001-
00923351)

23. By their own analysis of
content, including infringing content,
on YouTube, Defendants recognize
professionally-produced music as
among the array of content attracting
substantial viewership.

Ellerson Ex. 10 (GOO001-02519867-73) (Tab 22)
(Ellerson: “Our opinion — based in particular on the
recent analysis... done on query stream data... is that
Chad’s initial conclusion [that ‘users... don’t want to
watch professionally produced content’] is not correct.
This data suggests that our users do want to watch
professional content, but we either haven't yet licensed
the content that they’re looking for, or, for content that
we have licensed, we are not doing the best job that we
can to surface that content for users... Of the Top 100
Playback Queries... Music = EN ... Non -Music

Premium = Of ‘Premium’ content queries: ...
Sports = |... News = [IP) (G00001-02519869)
(emphasis added)

King Ex. 2 (GO0001-01403792-93) (Tab 66) (Tony
Lee, Technical Product Manager: “Music content is a
key element to Youtube’s success. Premium music
content is the most watched genre of content on
YouTube. Thus, it is imperative that we acquire, and
allow content owners to claim, as much content as
possible to promote the growth and success of
YouTube.”) (GO0001-01403792)

Eun Ex. 25 (GO0001-00986823-26; GOO001-
00986825-997) (Tab 24) (Seth: “Top 10K queries...
“Searches do reflect popularity pretty well... Fresh
content is being searched for consistently... Music, TV
Shows, Movies, Celebrities, Sports, etc, are definitely
our top categories to attack... beckham, rooney
(wayne), christiano ronaldo, steven gerrard, fernando
torres.”) (GOO001-00986823)

B. Hurley Ex. 18 (GOO001-01016964-86) (Tab 41)
(Content Lead Discussion — June 26, 2007: “users are
searching for lots of things, but primarily for premium
content... Music Videos ”) (GOO001-01016969)

King Ex. 4 (GO0001-01404022) (Tab 67) (King:

22

i
i

apna enn


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http:/Awww.gstatic.com/youtube/engagement/platform/a

utoplay/advertise/downloads/Y ouTube_InTheKnow.pdf
[last accessed March 4, 2010]

(“July 2009: 98.1 million unique visitors, and 17.5
billion page views per month... 8.9 video views in July
2009.”) (Tab 148)

4. — Prior to Google’s acquisition of
YouTube in October 2006, YouTube
management recognized the vast
amount of unlicensed copyrighted
content on the website and its value
in attracting users to the site.

paises
C. Hurley Ex. 4

ae

1 (JK00007416) (Tab 47) (Chen: if we
remove all that content, we go from 100,000 views a
day down to about 20,000 views or maybe even lower.
the copyright infringement stuff. I mean, we can
presumably claim that we don’t know who owns the
tights to that video... who don’t we just remove the
XXX stuff for now?”).

Dunton Ex. 5 (GO0001-00507535-GO0001-00507540)
(Tab 15) (Dunton to “tunawarrior” [Steve Chen]: “I did
a little exercise on friday and went through all the most
viewed/most discussed [sic]/top favorites/top rated to
try and figure out what percentage is or has copyrighted
material. it was over 70%.”) (p. 8)

C. Hurley Ex. 33 (JK00005929) (Tab 45) (Chen: “first,
regardless of the video they upload, people are going to
be telling people about the site, therefore making it
viral. they’re going to drive traffic. second, it adds
more content on the site. third, we're going to be adding
advertisements in the future so this gets them used to it.
i'm asking for a couple more weeks.”)

C. Hurley Ex. 38 (GO0001-01424047-48) (Tab 46)
(Chen: “but we should just keep that stuff on the site. i
really don't see what will happen. what? someone from
cnn sees it? he happens to be someone with power? he
happens to want to take it down right away. he gets in
touch with cnn legal. 2 weeks later, we get a cease &
desist letter. we take the video down.”) (GOO001-
01424047)

Karim Ex. 25 (JK00009933-34) (Tab 62) (Karim: “I’d
just remove the obviously copyright infringing stuff...
none of the most favorite [sic] videos are movies or tv



Contains Material Designated Confidential and Highly Confidential Pursuant to Protective Order

Sports = HE. . News = i) (emphasis added)
(GOO001-02519869)

Ellerson Ex. 9 (GOO001-03065453-306467) (Tab 21)
(Ellerson: “Attached is the recommendation that we
made to Dave [Eun]... Potential Target... English
Premier League.”)

C. Hurley Ex. 41 (JK00007416) (Tab 47) (“take down
whole movies. take down entire TV shows. take down
XXX stuff. everything else keep including sports,
commercials, news, etc.”) (emphasis added)

Zameczkowski Ex. 13 (GOO001-02341604-09) (Tab
126) (Premier League was “world’s biggest and most
recognized sporting leagues” and “already popular” on
GV and YouTube.) (GOO001-02341605)

Zameczkowski Ex. 18 (GOO001-00716143-45) (Tab
130) (Redic: “We are working on estimating the
potential value of various sports content to YouTube.
This requires us to estimate the number of video views
that we could potentially experience if the content of
certain content providers was on the site. For example,
if we had UEFA [Union of European Football
Associations] in 2008, what would be the potential
number of views that we could see.”) (GOO001-
00716143)

Zameczkowski Ex. 19 (GOO001-01655883-84.0003)
(Tab 131) (“Premier League” is listed as a Tier 1
content partner, part of “Sporting organizations and
clubs with international recognition.”) (GOO001-
01655883)

Patrick Walker Ex. 9 (Tab 117) (Bill Kipp:
“Authoritative 3rd party data sources for movie titles,
song lists, etc... Patrick [Walker] create a nice list of
sports-related content providers and subjects to help us
with our search for unauthorized content...Soccer
(Football) Most Followed Leagues (use both
league/competition names and team/club names)...
English Premier League... German Bundesliga...
Scottish Premier League... Tennis... Top
Competitions: Wimbledon, US Open, Australian Open,
Roland Garros (French Open)...”) (GOO001-00313643-

19

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127) (Walker:“[...] there’s a deadline mid next week to
put in a proposal for English Premier League rights
globally and we’re trying to run some commercial
models to guage [sic] value based on video usage in the
categories listed below... [which] might become a
recurring need... For the following terms:

1, soccer
2. football

3. Premier League (sp?)

... What are:

a. # searches for the above done on YT daily
b. # titles with tagged with the above
c. # tales with the above in the title text”)
(GOO001-00214966)

Zameczkowksi Ex. 18 (GOO001-00716143-45) (Tab
130) (YouTube estimations of Premier League video
views in excess of 30 million.) (GOO001-00716143;
GO0001-00716145) (See above)

Ellerson Ex. 10 (GOO001-02519867-73) (Tab 22)
(See above)

22. YouTube did not license
Premier League content despite
knowledge that videos of Premier
League footage on YouTube were
unauthorized.

Molnar Ex. 19 (GOO001-01211705-14) (Tab 92)
(Zameczkowksi: “Dear Paul and Phil, Iam working
with Patrick Walker in the YouTube/Google Video
EMEA team. According to the ITT you sent us on
January 24th, the bidding form was supposed to be
supplied 7 days after the date of issue of this ITT but we
didn't receive it. Are you able to send us the bidding
form shortly?”)

(GOO001-01211707)

P. Walker Tr. 227:10-228:14 (Tab 123) (YouTube
“decided not to make a bid for these rights.”)

Zameczkowski Ex. 14 (GOO001-00214966-67) (Tab
127) (YouTube personnel requested searches for
Premier League materials.)

Levine Ex. 21 (GO0001-00707313) (Tab 85) (“millions
of Football goals on YouTube.”)

GO0001-00923351-52 (Tab 152) (P. Walker: “I’ll be
attending a seminar on Wednesday (tomorrow) in
Dublin with heads of several major sports teams and
leagues. I would be much appreciated if you could have

21



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Levine Ex. 21 (GO0001-00707313) (Tab 85) (“... there
are millions of Football goals on YouTube... Here are
several copies of the video that other people have
uploaded.
http://www.youtube.com/results?search_query=sahatfu
Iham &search=Search”)

King Ex, 2 (GO0001-01403792-93) (Tab 66) (Tony
Lee: “music content is a key element to YouTube’s
success. Premium music content is the most watched
genre of content on YouTube.”) (GO0O001-01403792)

GO0001-00923351-52 (Tab 152) (P. Walker: “I’ll be
attending a seminar on Wednesday (tomorrow) in
Dublin with heads of several major sports teams and
leagues. I would be much appreciated if you could have
a quick look through the index and post on the sparrow
page/take down any clearly infringing, official
broadcast footage that you notice from these right
holders below... Liverpool Football FC... Chelsea
Football FC... Manchester United Football Club...
Arsenal Footbal Club... Sky Sports.”) (GOO001-
00923351)

17. Defendants adhere to a policy
that they would only take down
videos in response to a formal DMCA
notice, and then only remove the
specific URLs listed in the individual
notice and only future uploads that
specifically match the unique “hash
mark” known as a “md5 hash” that
YouTube created for each URL.

Gillette Ex. 13 (GOO001-00041715-20) (Tab 30) (The
YouTube Team to user: “To file a notice of
infringement with us, you must provide a written
communication that sets forth the items specified below.
To expedite our ability to process your request, please
use the following format (including section numbers): 1.
Identify in sufficient detail the copyrighted work that
you believe has been infringed upon, including the
owner of the work. For example, ‘The copyrighted work
at issue is the video titled ‘My Video produced by me.’
... 2, Identify the material that you claim is infringing
the copyrighted work listed in item #1 above. YOU
MUST IDENTIFY EACH VIDEO THAT
ALLEGEDLY CONTAINS INFRINGING
MATERIAL. This requires you to specify the URL of
the playback page for that video (like this:

http:/Avww.youtube.com/watch?v=QCVxQ_3Ejkg).”)
(GOO001-00041718)

C. Hurley Ex. 38 (GOO001-01424047-48) (Tab 46)
(Chen advised that videos should remain on the site

16



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goal is to use funding to pursue a two-phased approach.
First we will further grow our audience and reach to
secure our position as the #1 place for personal videos
on the internet. Then we will monetize the audience we
have acquired by hosting video ads.”) (JK00009871)

C. Hurley Ex. 38 (GO0001-01424047-48) (Tab 46)
(Hurley emphasizes that “serious traffic” will allow
them to sell YouTube for “big money.”)

C. Hurley Ex. 12 (Tab 44)

C. Hurley Tr. 107:14- 108:20 (Tab 49) (SPEAKER 1:
“It was like pretty impressed. You’re basically right. It’s
like anywhere on the Internet you have a little that can
control and, you know, basically serve up ads, and the
whole of things with tags and, you know, what our
viewers have seen before the flash. It’s pretty --
SPEAKER 2: So if we get them involved, at what point
would we tell them our dirty little secret, which is that
we actually just want to sell out quickly? SPEAKER 1:
Are you filming? You're going to actually have to erase
this. SPEAKER 2: No. It won't be released until after
the acquisition.” MR. BROWNE: Q: Now, Mr. -- stop
that. Now, Mr. Hurley, have you ever seen that video
before? A: I don't remember it. Q: Okay. Did you
recognize the two individuals that were on camera
during that video? A: I recognize Steve and myself, and
it sounded like Jawed’s voice. Q: Okay. And it sounded
like -- and Mr. Karim’s voice on the video, you
recognized that? A: It sounded like it. Q: Did you hear
yourself say on -- on -- on that video that -- that you
have to -- something like” we’ll have to erase the file”?
A: I mean, yeah, it seemed like a pretty sarcastic remark
to his sarcastic comment.”)



Contains Material Designated Confidential and Highly Confidential Pursuant to Protective Order

Karim Ex. 22 (JK00004969) (Tab 61) (Chen: “for these
mixed videos with music backgrounds, will we get in
trouble for them because the music is copyrighted?...
Hurley: I wouldn’t be too concerned for now.”)

C. Hurley Ex. 6 (GOO001-00660582-83) (Tab 42)
(Premium content causes user traffic to “surge”.)

C. Hurley Ex. 33 (JK00005929) (Tab 45) (Chen: “first,
regardless of the video they upload, people are going to
be telling people about the site, therefore making it
viral. they’re going to drive traffic. second, it adds
more content on the site. third, we’re going to be
adding advertisements in the future so this gets them
used to it. I’m asking for a couple more weeks.”)

Dunton Ex. 5 (GO0001-00507535-GO0001-00507540)
(Tab 15) (discussing the percentage of copyrighted
videos on YouTube.)

6. YouTube has been and is
capable of identifying and removing
copyright infringing and other
“inappropriate” content from the
website through, among other things,
proactive searches by YouTube
personnel and “community flagging”
by users; it deploys such practices
when removal corresponds to its
financial interests.

Schaffer Ex. 12 (GOO001-00561567-82) (Tab 107)
(“Introduction to Content SQUAD, Google Sales
Conference 2007”) (“Community Flagging... * Users
police YouTube by flagging inappropriate content for
review”

+ All flagged videos are reviewed by the YouTube
Content SQUAD), 24 hours a day, 365 days a year

+ Flagged videos are routed into queues, team members
are able to collaborate and escalate difficult decisions to
higher tiers

+ 75% Of all flagged videos are reviewed within three
minutes, most are reviewed within 30 seconds

* Child pornography is typically flagged and removed
within minutes of being uploaded

+ Pornography is typically flagged and removed within
the first 100 views”) (GOO001-00561577)

Gillette Ex. 1 (GO0001-00757950) (Tab 27) (Gillette:
“This content should be removed from the FAQ
immediately. It in itself makes it so we are not protected
by the DMCA: What are you doing to prevent content
that violates your policies from appearing in YouTube?:
We do a preliminary review on uploaded videos through
both a manual and automated process. Although we try
our best to detect and remove videos that violate our
policy guidelines, our review process is primarily
focused on removing adult content or obvious copyright



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shows. we’re ok cracking down on this content. we ‘//
leave music videos, news clip and comedy shows for
now.”) (JK00009933) (emphasis added)

Karim Ex. 40 (JK00006166-6169) (Tab 64) (Chen: “In
other news, jawed, please stop putting stolen videos on
the site. We’re going to have a tough time defending the
fact that we’re not liable for the copyrighted material on
the site because we didn’t put it up when one of the co-
founders is blatantly stealing content from another site
and trying to get everyone to see it.”)

C. Hurley Ex. 6 (GO0001-00660582-83) (Tab 42)
(Chen: “right, i understand those goals but, at the same
time, we have to keep in mind that we need to attract
traffic, how much traffic will we get from the personal
videos? remember, the only reason why our traffic
surged was due to a video of this type [the movies].”)
(GO0001-00660582)

5. YouTube management did not
remove valuable copyrighted content
from YouTube despite being aware of
its extensive and unauthorized
presence.

Karim Ex. 38 (JK00007479) (Tab 63) (Chen: “That
way, the perception is that we are concerned about this
type of material and we’re actively monitoring it. [But
the] actual removal of this content will be in varying
degrees. That way, ... you can find truckloads of .. .
copyrighted content . . . [if] you [are] actively searching
for it.”). (emphasis added)

Karim Ex. 25 (JK00009933-34) (Tab 62) (Karim: “I’d
just remove the obviously copyright infringing
stuff...none of the most favorite videos are movies or tv
shows. we’re ok cracking down on this content. we'll
leave music videos, news clip and comedy shows for
now.”) (JK00009933)

C. Hurley Ex. 38 (GOO001-01424047-48) (Tab 46)
(Chen states that content should remain on the site.)

C. Hurley Ex. 41 (JK00007416) (Tab 47) (Chen states
that YouTube can “presumably claim” that they are
unaware of infringing content and wait for a DMCA
notice).

Karim Ex. 40 (JK00006166-6169) (Tab 64) (YouTube
founder uploads unlicensed video to the site.)

Co


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regardless of knowledge until YouTube receives as
“cease & desist letter.”) (GOO001-01424047)

C. Hurley Ex. 41 (JK00007416) (Tab 47) (Chen stated
that YouTube can “presumably claim” that they are
unaware of infringing content and wait fora DMCA
notice).

P. Walker Tr. 222:17-223:12 (Tab 122) (“Q: You said
that YouTube makes tools available to content owners
to monitor their rights. What tools are you referring to?
Do they have names? A: There is the standard DMCA
notification process, which is submitting either in bulk
or on an individual URL basis the content they would
like to be removed, which we do remove. And there is
the development of a tool that we call CVT or content
verification program, which would allow them to use
search tools to pull up clips that had -- that responded to
the queries that they insert. Then they would be able to
look at those clips that came up in response to their
search queries. They would then be able to, within that
tool, review those videos and determine whether or not
it was, in fact, in their opinion, an unauthorized use. j
They could tick a box indicating removal, click a |
button, and we would have a batch list sent to us that
would be automatically removed.”)

P. Walker Tr. at 216:25-218:4 (Tab 121) (THE
WITNESS: When anyone, including the Premier
League, indicates to me that their content is on
YouTube, what I tell each and every one of them is,
why is it still there if you don't want it there? The tools
are available to you to have it removed if you object to
its presence there. Q: And you said that to the Premier
League officials? A: Yes. Q: And what did they say
in response? A: They said that we should, meaning
YouTube should take it down. To which I responded,
you are the only one that knows which clips are the ones i
that might be unauthorized, and you must follow
procedures for its removal through the DMCA |
process,”)

Matthew Liu Ex. 15 (GOO001-07171324-07171353)
(Tab 89) (“MD5 Hashes - YouTube uses the checksum
of the video binary that the user uploads to create an
MDS hash. YouTube then compares that MDS hash to a

17

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flag unauthorized copyrighted
content, but YouTube discontinued it
in order to claim ignorance of the
copyright infringing content on the
site.

C. Hurley Ex. 11 (JK00008043) (Tab 43) (Chad Hurley:
“can we remove the flagging link for ‘copyrighted’
today? we are starting to see some complaints for this
and basically if we don't remove them we could be held
liable for being served a notice. it's actually better if we
don't have the link there at all because then the
copyright holder is responsible for serving us notice of
the material and not the users.”)

B. Hurley Ex. 3 (JK00008393) (Tab 39) (Chad Hurley:
“we took it down, because, as stated in the Digital
Millennium Copyright Act, we’re only obligated to
remove content when contacted directly by the
copyright owner. We don’t want random users to flag
things as copyrighted because they don’t own the
content.”)

8. YouTube no longer undertakes
proactive searches generally for
copyright infringing content (but only
for select partners).

Levine Ex. 10 (GO0001-00839903) (Tab 84) (Gillette:
“Other than American idol and SNL, please stop the
stop the scans so that we can spend more time on
email.”)

Gillette Tr, 73:22-74:10 (Tab 31) (“A: I do not recall
actually the -- the periods where we did proactive
scanning when -- when exactly they were. Q: Do you
recall when it -- well, did it ever stop? A: Yes, it did. Q:
Okay. Do you recall when? A: I recall that it was pre-
acquisition. I’m fairly sure. I do not recall how early on
we actually decided to stop doing that. Q: Who at
YouTube made that decision to stop doing that? A: I
believe legal. It was a legal decision.”)

9. By exploiting unlicensed
copyrighted material, YouTube’s
founders/management effectively
implemented a plan to derive
financial benefits from both the
operation of the site and the eventual
sale of the site.

Google to Acquire YouTube for $1.65 Billion in Stock,
Google Press Center, October 9, 2006 (“Founded in
February 2005, YouTube is a consumer media
company... [that] has quickly become the leading
destination on the Internet for video entertainment.”
(Tab 134)

Dunton Ex. 4 (GO0001-00507525-32) (Tab 14) (Chen:
“concentrate all of our efforts in building up our
numbers as aggressively as we can through whatever
tactics, however evil.”) (GOO001-00507526)

Karim Ex. 9 (JK00009871-72) (Tab 60) (Karim: “Our

aseptic tnntnene en


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“From a copyright perspective, clearing music inventory
is our most important initiative, so it is highly
unfortunate if this does not coincide with our
monetization capabilities.”)

Karim Ex. 25 (JK00009933-34) (Tab 62) (Karim: “I’d
just remove the obviously copyright infringing stuff...
“none of the most favorited videos are movies or tv
shows. we’re ok cracking down on this content. we’ll
leave music videos, news clip and comedy shows for
now.”) (JK00009933) (emphasis added)

GOO001-00021120 (Tab 149) (“So the Cherry Lane
thing sucks. Had we been in touch and they still sued?
I’m just wondering if we should be devoting the entire
team’s time to just publishers (and big indies) to try to
stem litigation?”)

24. Defendants were aware that the
exploitation of music requires the
execution of licenses with multiple
entities, including publishers, record
labels, and performance societies.

King Ex. 18 (GO0001-01905256-64) (Tab 72) (Music
Copyright - March 2007 — David King: “Right type:
Reproduction, Performance, Distribution,
Synchronization... Label — Sound Recordings...
Publisher —- Compositions... Complex ownership and
administration arrangements, and constant movement
between publishers. ..”) (GOO001-01905259)

K. Walker Tr. 71:24-72:7 (Tab 115) (“music content is
perhaps uniquely legally complex because of the
number of overlapping and sometimes inconsistent
rights associated with it. There are a wide number of
different rights that are owned by the performer, the
creator, the -- the publishers, the labels, the collecting
societies in Europe, et cetera, and each of those entities
can own multiple rights, which sometimes align and
sometimes do not.”)

GOO001-01027023-44 (Tab 154) (“Copyright 101 for

YouTube Partners,” to “get permission” when “using

23

septate


Contains Material Designated Confidential and Highly Confidential Pursuant to Protective Order

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK.

THE FOOTBALL ASSOCIATION
PREMIER LEAGUE LIMITED, BOURNE
CO. (together with its affiliate MURBO
MUSIC PUBLISHING, INC.), CHERRY
LANE MUSIC PUBLISHING
COMPANY, INC., CAL IV
ENTERTAINMENT LLC, ROBERT TUR
d/b/a LOS ANGELES NEWS SERVICE,
NATIONAL MUSIC PUBLISHERS’
ASSOCIATION, THE RODGERS &
HAMMERSTEIN ORGANIZATION,
STAGE THREE MUSIC (US), INC.,
EDWARD B. MARKS MUSIC
COMPANY, FREDDY BIENSTOCK
MUSIC COMPANY d/b/a BIENSTOCK.
PUBLISHING COMPANY, ALLEY
MUSIC CORPORATION, X-RAY DOG
MUSIC, INC., FEDERATION
FRANCAISE DE TENNIS, THE MUSIC
FORCE LLC, and SIN-DROME
RECORDS, LTD. on behalf of themselves
and all others similarly situated,

Plaintiffs,
ve

YOUTUBE, INC., YOUTUBE, LLC and
GOOGLE, INC.,

Defendants.

Case No. 07 Civ. 3582 (LLS)

CLASS PLAINTIFFS’ STATEMENT
OF UNCONTROVERTED
MATERIAL FACTS IN SUPPORT
OF THEIR MOTION FOR PARTIAL
SUMMARY JUDGMENT

Redacted Pursuant to Protective Order at Request of Defendants



Contains Material Designated Confidential and Highly Confidential Pursuant to Protective Order

(“GV can be the best partner to content owners...
Respect copyrights of premium content owners (we
should beat YouTube by improving features and user
experience, not being a ‘rogue enabler’ of content
theft”)) (GO0001-00502536)

12. Prior to its acquisition of
YouTube in October 2006, Google
Video implemented policies and
practices to identify and remove
infringing content that appeared on
Google Video through, among other
things, proactive screening of
uploads, when removal corresponded
with its financial interests.

GO0001-00923351-52 (Tab 152) (P. Walker: “I’ll be
attending a seminar on Wednesday (tomorrow) in
Dublin with heads of several major sports teams and
leagues. I would be much appreciated if you could have
a quick look through the index and post on the sparrow
page/take down any clearly infringing, official
broadcast footage that you notice from these right
holders below... Liverpool Football FC... Chelsea
Football FC... Manchester United Football Club...
Arsenal Footbal Club... Sky Sports.”) (GOO001-
00923351)

Narasimhan Ex. 4 (GOO001-00794737-58) (Tab 93)
(June 28, 2006 email and attached deck on GV review
of illegal uploads. Narasimhan writes to Eun: “We catch
around 10% of all online user uploaded videos during
review. Of these approximately 90% is disapproved due
to copyright violation, and the rest due to policy (porn,
violence, etc.”) (GO0001-00794737)

Kordestani Ex. 10 (GO0001-00496021-62) (Tab 78)
(“Today — zero tolerance on copyright, violence and
hate... enforced with proactive screening before the
video goes live... reject mixed use if more than 50% is
recognizable copyright”) (GOO001-00496037)

Eun Tr. 130:3-17 (Tab 26) (“Q: So the existing policy at
the time of this draft document was a zero tolerance on
copyright as well as porn, violence and hate. And that
was enforced with proactive screening before the video
went live, correct? A: Yeah. I have no reason to
dispute that what this is is the current policy was not,
you know, was not anything but the current policy back
then.”)

Patrick Walker Ex. 9 (Tab 117) (Bill Kipp:
“Authoritative 3rd party data sources for movie titles,
song lists, etc... Patrick [Walker] create a nice list of
sports-related content providers and subjects to help us
with our search for unauthorized content... Soccer

10



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10. The YouTube founders had
extensive experience building internet
businesses, and their explicit goal was
to build an audience as quickly as
possible to maximize value in an
expected sale of the business.

Karim Ex. 1 (Resume — PayPal employee 2000-2005)
(Tab 59)

Karim Tr. 16:12-17:3 (Tab 65)

C. Hurley Tr. 16:20-17:16 (Tab 48) (YouTube’s
founders had significant experience developing internet
businesses through prior job experience at PayPal.)

Ebay Press Release (October 3, 2002)
http://investor.ebay.com/releasedetail.cfm?ReleaseID=9
1641 (Tab 133) (ebay bought Paypal in 2002 for $1.5
billion)

11. Google acquired YouTube for
more $1.65 billion in October 2006,
because YouTube had attracted
substantially more users than
Google’s competing website, known
as Google Video.

Google to Acquire YouTube for $1.65 Billion in Stock,
Google Press Center, October 9, 2006 (Tab 134)

Schmidt Tr. 53:9-24 (Tab 110) (“Q And as best you can
recall, can you tell us what reasoning you explained [to
the Board]? A Sure. This is a company with very
little revenue, growing quickly with user adoption,
growing much faster than Google Video, which was the
product that Google had.... And we ultimately
concluded that 1.65 billion included a premium for
moving quickly and making sure that we could
participate in the user success of YouTube.”) (emphasis
added)

Kordestani Ex. 10 (GOO001-00496021-62) (Tab 78)
(“Google Video... Topics discussed at this GPS...
discuss competitive position vs YouTube and MySpace
Video”) (GOO001-00496023)

Schmidt Ex. 2 (CSSU003560-86) (Tab 108) (Storm
Duncan — Credit Suisse — Project Snowmass: “60% of
total video streams on Yellow [codename for YouTube]
website are ‘Premium’... 40% of total video streams
non Yellow [YouTube] are non-Premium... Non-
Premium Content is user generated videos and is
segmented between high value and regular content”)
(CSSU003570)

Walker Ex. 14 (GOO001-00502527-54) (Tab 118)



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violations, and is not bulletproof. However, we
encourage our viewers to notify us when they discover
policy violations or copyright issues -- we have a
process for reviewing reported policy violations, and
respond to reported copyright violations under the
Digital Millennium Copyright Act.”)

Schaffer Ex. 6 (GOO001-00839895) (Tab 105)
(Schaffer: “Hey guys, Weezer is on our list of content
that we pro-actively scan for (as per the RIAA). We
should probably de-feature this

http://www. youtube.com/watch?v=IU6sdCeY 1 Q8 even.
though it's a cover band, it still needs to be cleared... :(
It'll probably wind up Copyright Reject w/ Strike next
time we scan for Weezer.”)

Schaffer Ex. 8 (GOO001-00840004-06) (Tab 106)
(YouTube chart for tracking entertainment content
proactively on the site.)

Gillette Ex. 4 (GOO001-00839851) (Tab 28) (Gillette:
“Need help with proactive scans [...] a list of all of the
earlier infringement notifications that we have received,
and I would like you to cycle through this once a day
and search for their content on our site. If you see a lot
for any of the content owners, you could also ask
whoever is working that day in support to help you to
ferret more out.”)

B. Hurley Ex. 7 (GOO001-00629095) (Tab 40) (B.
Hurley: “please reject any nudity/porn and any death
videos, along with anything else that’s glaringly
inappropriate. As far as copyright stuff is concerned ,
be on the look out for Family Guy, South Park, and full-
length anima episodes... music videos and news
programs are fine to approve.”)

Dunton Ex. 5 (GO0001-00507535-GO0001-00507540)
(Tab 15)

Gillette Tr. 94:12-99:6 (Tab 32) (Explanation of
YouTube review process)

7. Fora brief period in September
2005, YouTube’s “community
flagging” feature permitted users to

Karim Ex. 38 (JK00007479) (Tab 63) (Chen: “we’ve
implemented a flagging system so you can flag videos
as being inappropriate or copyrighted.”)



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00313646)

Walker Ex. 19 (GO0001-00922380-81) (Tab 119)
(“FAPL Opportunity... Why do the deal?... avoiding
possible litigations for copyright infringements...
Proposed deal terms... Estimate license fee: between 5
to 10% of the International TV rights (€20 million [sic]
over 3 years).”) (GO0001-00922380) (emphasis added)

Ellerson Ex. 9 (GOO001-03065453-306467) (Tab 21)
(Ellerson: “Attached is the recommendation that we
made to Dave [Eun]....Potential Target....English
Premier League.”)

20. YouTube has been repeatedly
informed that sports content is being
exploited on YouTube without
authorization.

Zameczkowski Ex. 16 (GOO001-00221953) (Tab 128)
(German Football League, Bundesliga, indicated to
Defendant’s employee Anthony Zameczkowski that it
may join the class action lawsuit)

Zameczkowski Ex. 17 (GOO001-02339707-13) (Tab
129) (La Liga (Spanish football) threatened litigation
due to the presence of unlicensed content on YouTube)
(GOO001-02339710)

King Ex. 13 (12/12/08) (GOO001-01519154-55) (Tab
71) (Adam Coates emails: “I just had an interesting
meeting with Ligue 1 who are considering joining the
Premiership class action to sue YouTube.”) (GOO001-
01519154)

Scottish Premier League (First Amended Complaint {
33) (Tab 137)

21. Defendants concluded that
Premier League was a sports entity
with content on YouTube that could
be exploited financially for
YouTube’s benefit.

Zameczkowksi Ex. 13 (GOO001-02341604-09) (Tab
126) (“FAPL [Football Association Premier League]
and YouTube... Why Do the Deal?... Prime content
with which we can test and improve advertising in
various geographies... Running models now. Aim for
roughly $40MM over three years — which is what we
believe is roughly in range of competitive bids.”)
(GO0001-02341605; GOO001-02341609)

Walker Ex. 19 (GOO001-00922380-81) (Tab 119)
(See above)

Zameczkowski Ex. 14 (GOO001-00214966-67) (Tab

20

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oo

1. The Class Plaintiffs include
named plaintiffs The Football
Association Premier League Limited,
Bourne Co. (Together With Its
Affiliate Murbo Music Publishing,
Inc.), Cherry Lane Music Publishing
Company, Inc., Cal IV Entertainment
LLC, Robert Tur d/b/a/ Los Angeles
News Service, National Publishers’
Association, The Rodgers &
Hammerstein Organization, Stage
Three Music (US), Inc., Edward B.
Marks Music Company, Freddy
Bienstock d/b/a Bienstock Publishing
Company, Alley Music Corporation,
Fédération Francaise de Tennis, The
Music Force LLC and Sin-Drome
Records, Ltd.

Second Amended Complaint (11/26/08) 4 2, 3, 10-33,
45. (Tab 138)

2. Defendants are YouTube LLC,
YouTube, Inc., and Google, Inc.,
which are affiliated entities involved
in the management and/or operation
of the YouTube website
(www.youtube.com) (“YouTube”).

Second Amended Answer (1/16/09) ] 34, 35, 37. (Tab
139)

3. YouTube is a major media
entertainment company, which has
over 98 million visitors per month
and more than 17.5 billion pageviews
per month in the United States.

Google to Acquire YouTube for $1.65 Billion in Stock,
Google Press Center, October 9, 2006 (“Founded in
February 2005, YouTube is a consumer media
company... [that] has quickly become the leading
destination on the Internet for video entertainment...
with 65,000 new videos per day were being uploaded
daily.” (Tab 134)

October 9, 2006 — Fair Disclosure Wire — Google To
Acquire YouTube for $1.65 Billion in Stock — Final:
“YouTube is a “global media platform.”) (Tab 135)

July 17, 2008 — Fair Disclosure Wire — Q2 2008 Google
Earnings Conference Call — Final (YouTube is “a new
form of video entertainment.”) (Tab 136)

“YouTube Fall 2009”



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understands that this content is
copyrighted, routinely uploaded
without authorization, and a major
attraction that generates traffic.

say after I found that 70%, I went and flagged it all for
review.’ What does it mean to flag it for review? A: At
the time, it meant it goes into a queue that somebody at
YouTube reviews. Q: Reviews for what purpose? A:
They can review it for many different purposes. Things
are flagged because users find them inappropriate.
Anything that users feel break our Terms of Use. Q:
Okay. But you did not flag it all for review; did you?
A: I don’t know. I don't believe I flagged the videos I
saw on the most viewed for review. Q: Okay. This is a
joke; right? You're being sarcastic -- A: Which part?
Q: -- inthe IM? A Which part? Q: That you went and
flagged it all for review? A: I'm probably being
sarcastic, yes....“Q: You then say ‘because we’ve got
to work towards having a site 100% free of copyrighted
material, ya know.’ You were being sarcastic there
again; weren’t you? A: I don't know if I was being
sarcastic. As I said, we used the terms ‘copyrighted’
and ‘premium —’ we exchanged those two terms quite a
bit. I thought it was -- yes, this is true. I didn’t think it
was possible to have a site 100 percent free, nor why
would we want to, of premium, of professionally
produced content. We had premium professional
produced content since the beginning of YouTube.”)

July 16, 2009 — Fair Disclosure Wire - Q2 2009 Google
Earnings Conference Call — Final (Tab 142) “(HEATH
TERRY: And in terms of being able to monetize the
non-professional side of that inventory? ERIC
SCHMIDT: It has not been our focus. It is probably
possible to do so, but the fact of the matter is that the
majority of the non-professional content has a relatively
small number of viewers. It is difficult to target it
accurately. There is too much variation and so forth,
whereas the professional here, and remember,
professional here just doesn't mean big studios.”) (p. 10)

April 16, 2009 — Fair Disclosure Wire — Q1 2009
Google Q&A Session — Final (Tab 141) (Jonathan
Rosenberg: “what we're hearing from both viewers and
advertisers is that they want premium content and the
premium viewing experience.”) (p. 4)

Eun Ex. 27 (GOO001-00238624-25) (Tab 25) (Eun:
“Our preliminary analysis indicates that anywhere from
~ 40% to as high as ~70% of search queries may

13


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guarantees.) (GO0001-00074410)

Schmidt Ex. 2 (CSSU003560-86) (Tab 108) (Credit
Suisse Analysis had calculated percentages of Premium
content.) (CSSU003570)

16. Defendants conducted analyses
of “query streams” (search results)
and identified with specificity
premium content across a broad
range, including infringing content,
that is popular among YouTube’s
users.

Ellerson Ex. 10 (GO0001-02519867-73) (Tab 22)
(Ellerson: “Our opinion — based in particular on the
recent analysis... done on query stream data... is that
Chad’s initial conclusion [that ‘users... don’t want to
watch professionally produced content’] is not correct.
This data suggests that our users do want to watch
professional content, but we either haven't yet licensed
the content that they’re looking for, or, for content that
we have licensed, we are not doing the best job that we
can to surface that content for users... Of the Top 100
Playback Queries... Music = Ha. .. Non —Music
Premium = Of ‘Premium’ content queries: ...
Sports = [I... News = [EP) (G00001-02519871)

Eun Ex. 25 (GO0001-00986823-26; GOO001-
00986825-997) (Tab 24) (“Top 10K queries...
“Searches do reflect popularity pretty well... Fresh
content is being searched for consistently... Music, TV
Shows, Movies, Celebrities, Sports, etc, are definitely
our top categories to attack. ..”) (GOO001-00986823)

Zameczkowski Ex. 23 (GOO001-01316227-29.0019)
(Tab 132) (“Weekly report with top searches of April
25”) (GOO001-01316227-29.0013)

Zameczkowski Ex. 14 (GOO001-00214966-67) (Tab
127) (Walker:“[...] there’s a deadline mid next week to
put in a proposal for English Premier League rights
globally and we’re trying to run some commercial
models to guage [sic] value based on video usage in the
categories listed below....[which] might become a
recurring need... For the following terms:

1, soccer
2. football

3. Premier League (sp?)

.. What are:

a. # searches for the above done on YT daily

b. # titles with tagged with the above

c. # titles with the above in the title text”)
(GO0001-00214966)

15

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INTRODUCTION

Class Plaintiffs (hereinafter “the Class” or “Class Plaintiffs”) submit this Statement of
Uncontroverted Material Facts (“SUF”), with references to supporting record evidence, pursuant
to Local Rule 56.1. By reason of these facts, the Class Plaintiffs demonstrate that there is no
genuine dispute that Defendants YouTube, Inc., YouTube, LLC, and Google, Inc. (collectively,
“Defendants”) do not satisfy one or more of the essential elements of their affirmative defense to
copyright liability under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512
(1998), with respect to the Class Plaintiffs. As a consequence, any other DMCA factual disputes
that may exist have been rendered immaterial, and no genuine issues of material fact remain with
respect to Defendants’ First Defense (DMCA Safe Harbor) (“Safe Harbor Defense”) asserted in
Defendants’ Answer to Second Amended Class Action Complaint. Pursuant to Rule 56 of the
Federal Rules of Civil Procedure, Class Plaintiffs thus are entitled to partial summary judgment
dismissing Defendants’ Safe Harbor Defense as a matter of law.

In order to minimize the burden on the Court, Class Plaintiffs hereby incorporate, as if
fully set forth herein, the Statement of Uncontroverted Facts submitted by the plaintiffs in
Viacom Int'l. Inc., et al v. YouTube Inc., et al, No. 07 Civ. 2103 (LLS). This separate SUF
addresses other issues applicable to Class Plaintiffs. Except where otherwise noted, all materials
cited herein are exhibits to the accompanying Declaration of Elizabeth Anne Figueira In Support
of Class Plaintiffs’ Motion for Partial Summary Judgment. For ease of reference, the tab of the

Figueira Declaration containing the referenced materials is noted with each citation.

i
i



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TABLE OF CONTENTS
INTRODUCTION wt
Parties .........
From Its Inception, YouTube Management Knew Copyrighted Content Generated Substantial
Traffic to the Site... 8

Google Purchased YouTube ‘After ‘Failing to ‘Succeed ‘with ‘A ‘Competing ‘Website ‘and Adopted
YouTube’s Policies.

Defendants Have Clear Knowledge of Extensive Infringing Content on YouTube. ae
Defendants Restricted Use of Technical Measures to Avoid Knowledge of Infringing Content.
Defendants Capitalized on Infringing Content Rather Than Remove It.



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(Football) Most Followed Leagues (use both
league/competition names and team/club names)...
English Premier League... German Bundesliga...
Scottish Premier League... Tennis... Top Competitions:
Wimbledon, US Open, Australian Open, Roland Garros
(French Open)...”) (GOO001-003 13643-00313646)

13. Google analyzed YouTube prior
to and during the acquisition process
and concluded that YouTube
contained and displayed substantial
quantities of copyrighted material that
was not authorized to appear on the
site.

Eun Ex. 12 (GO0001-0049665 1-54) (Tab 23) (“I think
we should beat YouTube — and all competitors — but not
at all costs, A large part of their traffic is from pirated
content. When we compare our traffic numbers to theirs,
we should acknowledge that we are comparing out
‘legal traffic’ to their mix of traffic from legal and
illegal content.”) (GOO001-00496651)

Walker Ex. 14 (GO0001-00502527-54) (Tab 118)
(Google concluded that YouTube was a ‘rogue enabler’
of content theft.”) (GOO001-00502536)

Schmidt Ex. 2 (CSSU003560-86) (Tab 108) (Credit
Suisse Analysis had calculated percentages of Premium
content.) (CSSU003570)

Schmidt Ex. 8 (GOO001-00496614-47) (Tab 109)
(Content Acquisition Strategy Update: “Premium
Content Owners... perceive You Tube as trafficking
mostly illegal content — it’s a Video Grokster...
YouTube is getting more traffic and engagement than
Google Video today.... Qualitative research in 4
countries reveals the reasons behind this... YouTube’s
content is all free, and much of it is highly sought after
pirated clips.”) (GOO001-00496619-20; GOO001-
004966330)

Storm Duncan Ex. 13 (CSSU002686) (Tab 176) (Ullah:
“Snowmass video analysis [of YouTube]... Prem/tem
... 63%... Premium/removed- means the content is
copyright (either in whole or in substantial part) and
removed were links that were taken down.”)

Duncan 30(b)(6) Tr. 89:24-90:6 (Tab 177); 92:20-93:17
(Tab 178) (A: My recollection of the 424 is that it’s a -
- it says at the top of the e-mail, ‘Some manual analysis
we did,’ was that it was a study that the Google folks
had performed studying, you know, a number of
randomly generated or chosen videos, and that 424 is

11



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involve premium terms. While the playbacks evidence a
far smaller percentage of premium clips (as far as we
can tell without digging too much under the hood), it
seems that premium content/brands are an important
element to bringing people into the YT house. My guess
is that once they’re in, they decide to stay a while. I've
asked to see if there's a difference in total views for
people who come in through search vs. browsing vs.
links in email; and whether there’s a difference for those
who have searched for premium terms.”) (GOO001-
00238624) (June 26, 2007) (emphasis added)

Ellerson Ex. 10 (GOO001-02519867-73) (Tab 22)
(Ellerson: “Our opinion — based in particular on the
recent analysis... done on query stream data... is that
Chad’s initial conclusion [that ‘users... don’t want to
watch professionally produced content’] is not correct.
This data suggests that our users do want to watch
professional content, be we haven’t yet licensed the
content that they’re looking for.... Of the Top 100
Playback Queries... Music = HE... Non —Music
Premium = Of ‘Premium’ content queries: ...
Sports = ews = EP) (GO0001-02519871)

B. Hurley Ex. 18 (GOO001-01016964-86) (Tab 41)
(Content Lead Discussion — June 26, 2007: “users are
searching for lots of things, but primarily for premium
content.”) (GOO001-01016969)

King Ex. 2 (GO0001-01403792-93) (Tab 66) (Tony
Lee, Technical Product Manager: “Music content is a
key element to Youtube’s success. Premium music
content is the most watched genre of content on
YouTube. Thus, it is imperative that we acquire, and
allow content owners to claim, as much content as
possible to promote the growth and success of
YouTube.”) (GOO001-01403792)

Reider Ex. 7 (GO0001-00074410-11) (Tab 98) (George
Strompolos: “There are three kinds of YouTube content
partnerships: 1. Premium. Premium partnerships are
usually established with large, mainstream content
providers such as TV networks, cable stations, sports
leagues, large content hosting websites, and film
studios. These are typically negotiated deals that may
involve content commitments and promotional

14

eepr