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KELLY M. KLAUS (SBN 161091) [email protected] AMY C. TOVAR (SBN 230370) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Defendants UNIVERSAL MUSIC CORP., UNIVERSAL MUSIC PUBLISHING, INC., and UNIVERSAL MUSIC PUBLISHING GROUP UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA 11 12 STEPHANIE LENZ, 13 Plaintiff, 14 vs. 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28
5149641.1
CASE NO. CV 07-03783 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [Notice of Motion and Motion to Dismiss Second Amended Complaint; Memorandum of Points and Authorities in Support thereof; and Proposed Order filed concurrently herewith]
UNIVERSAL MUSIC CORP., UNIVERSAL MUSIC PUBLISHING, INC., and UNIVERSAL MUSIC PUBLISHING GROUP,
DATE: July 18, 2008 TIME: 9:00 a.m. CTRM: 3 (Honorable Jeremy Fogel)
REQUEST FOR JUDICIAL NOTICE CASE NO. CV 07-03783
Case 5:07-cv-03783-JF
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5149641.1
REQUEST FOR JUDICIAL NOTICE Defendants Universal Music Corp., Universal Music Publishing, Inc. and Universal Music Publishing Group ("Universal") respectfully request that the Court take judicial notice of the items set forth below and attached as Exhibits to this request. These items are judicially noticeable under Federal Rule of Evidence 201, because each is "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The Court may take judicial notice of these matters without converting Universal's motion to dismiss into a motion for summary judgment. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987); IntriPlex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). 1. Exhibit 1 to the Request for Judicial Notice Copy of YouTube's June 8, 2007
email message to Universal, forwarding Plaintiff's email message to YouTube, dated June 7, 2007. 2. Exhibit 2 to the Request for Judicial Notice Copy of a printout of the YouTube
site that contains Plaintiff's posting, http://youtube.com/watch?v=N1KfJHFWlhQ. 3. Exhibit 3 to the Request for Judicial Notice Copy of a printout of YouTube
Terms of Use, http://www.youtube.com/t/terms. 4. Exhibit 4 to the Request for Judicial Notice Copy of a printout of YouTube
"Copyright Tips," www.youtube.com/t/howto_copyright. 5. Exhibit 5 to the Request for Judicial Notice Copy of a printout from the website
of the Electronic Frontier Foundation ("EFF"), http://www.eff.org/cases/lenz-v-universal. 6. Exhibit 6 to the Request for Judicial Notice Copy of a printout of "Fair Use
Principles for User Generated Video Content," which is publicly available on the website of EFF, www.eff.org/file/UGC_Fair_Use_Best_Practices_0.pdf 7. Exhibit 7 to the Request for Judicial Notice Copy of an article entitled, Standing
Up to Takedown Notices, www.washingtonpost.com/wpdyn/content/article/2007/10/18/AR2007101802453_pf.html.
-1-
REQUEST FOR JUDICIAL NOTICE CASE NO. CV 07-03783
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5149641.1
8.
Exhibit 8 to the Request for Judicial Notice Copy of an article entitled, The
Home Video Prince Doesn't Want You to See, http://abcnews.go.com/TheLaw/story?id=3777651.
DATED: May 23, 2008
MUNGER, TOLLES & OLSON LLP
By:
/s/ Kelly M. Klaus KELLY M. KLAUS
Attorneys for Defendants UNIVERSAL MUSIC CORP., UNIVERSAL MUSIC PUBLISHING, INC., and UNIVERSAL MUSIC PUBLISHING GROUP
-2-
REQUEST FOR JUDICIAL NOTICE CASE NO. CV 07-03783
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EXHIBIT 1
Case 3:07-cv-03783-MEJ Case 5:07-cv-03783-JF
Document 12-2 Document 38-2
Filed 09/21/2007 Filed 05/23/2008
Page 20 36 Page 5 ofof 29
From: Copyri g ht Service [ ^ 7 t ). Etv:_^^^pyri lit ri yc3E^t igl^^. _ !I1J Sent: Friday:, June 08. 2007 11:57 AM t'o: Moffat..Alina Subject: Re. [Ctrl568= 7552] DMCA Counter No ieation - from Stephanie Lenz- re: Uni Dear Alina, We received the attached counter-notification in response to the complaint you filed with us on 6'05/07. As described in the United States Digital Millennium Copyright Act (DMCA) 17 U.S.C. 512, by this email, we're providing you with the counter-notification and await your notice (in not more than 10 days) that you've tiled an action seeking a court order to restrain the counter-notifier's allegedly infringing activity. Such notice should be submitted by replying to this email. if we don't receive notice from you.
\ NC
will reinstate the material to You [ube. outube.com .
If you have any questions. please contact cop) riwltt
Sincerely. heather ['he YouTube Team
Original Message Follows: From: Eden .:edenzai( ntail.contSubiect: Re: [41568375521 Fwd: Video Removed: Copyright Infringement Date: Thu. 7 Jun 2007 13:29:56 -0400 [ am writing this as a counter notice. I do not believe that the video in question violated copyright or infringed on copy right in any way. It was a
Case 3:07-cv-03783-MEJ Case 5:07-cv-03783-JF
Document 12-2 Document 38-2
Filed 05/23/2008 Filed 09/21/2007
Page 6 of of 29 Page 21 36
O second video of my children running around our kitchen, with my one year old son pausing to dance to the music that was playing, "Let's Go Crazy" by Prince. Phis music was not superimposed on the video but was merely. as I said, playing in the background during the action of the video. "Let's Go Crazy" .,c 1:
ik[t17: Lt LL'/i .L
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atct . v N Kt.ll (F41 11Q
I'm shocked that you allow videos on YouTube that constantly use copyrighted music and tiln snippets (videos and show taped off television. homemade videos of songs. remixed movie trailers, etc.) yet remove a video like mine - of two small children playing in their home - because of what music was playing in the background. I am appalled and disgusted that my video has been targeted and I feel that You rube finds it easier to crack down on small users than lar ger, popular users. I firmly believe that if 1 had simply titled the v ideo differently, it would never have been noticed. In accordance with the other information you require: "I hold a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." "The subscriber's name. address, and telephone number" Stephanie Lenz, 122 Shaft Rd. Gallitzin. PA 16641, 814.602.5588 I, Stephanie Lenz (username" edenza"), the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which l reside, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. Sincerely, Stephanie Lenz
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EXHIBIT 2
YouTube - " Let's Go Crazy" #1
Case 5:07-cv-03783-JF Document 38-2 Filed 05/23/2008 Page 8 of 36
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YouTube - "Let's Go Crazy" #1 Case 5:07-cv-03783-JF
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Comment(s) marked as spam Show tgafdo83 (3 weeks ago) Prince is a big crap. raVe4theslaVe (3 weeks ago) Imao. prince aint relivent anymore...u guys serious? ahaha ronniemidnight (3 weeks ago) Heeeee Prince!! Get a life!! sucker_ Leave this kind of video's and the people who made them. If this bother's you then WTF i going around in your head when your records are not selling. hnrO8 (3 weeks ago) Re Sam 0 Reply I Spam -2 Re Ph,. Sam 0
R9.plx I Spam,
-1
Too bad for his royal pain that standing on his copyright soapbox is the only way to stay relevant in today 's music scene. His time is over... he should be glad anyone even listens to his old stuff that was worth listening to anyway. Best of luck to you. win32blows (3 weeks ago) Don't take shit from anyone. streemguitar (3 weeks ago) prince isn't suing anyone raVe4theslaVe (3 weeks ago) dont elf wit the prince. period. maan100283 (3 weeks ago) Rep IX Spam 0 Reply. I Spam -4 Re
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Sam
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It's just silly. It's like if the toy manufacturer would complain about the copyrights of his toy that' s seen in the video. The music industry should adopt to the brave new world or die. Nowadays we call this product placement and user-generated social media advertising. Weren 't audioclips less than 30 sec legal anyway? reiala (3 weeks ago) This is just cute! I wonder why Universal is making a problem of the video in the first place. No offence, but the sound quality is so bad that I don't even recognize the music at ail! Pages: 1 2 3 ... View all 879 comments Next Reply Spam +4
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EXHIBIT 3
YouTube - Broadcast Yourself.
Case 5:07-cv-03783-JF
Document 38-2
Filed 05/23/2008
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1. Your Acceptance
A. By using and/or visiting this website (collectively, including all content and functionality available through the YouTube.com domain name, the "YouTube Website", or "Website"), you signify your agreement to (1) these terms and conditions (the "Terms of Service"), (2)YouTube's privacy notice, found at htto://www.youtube.com/t/privacy and incorporated here by reference, and (3) YouTube's Community Guidelines, found at htto://www.youtube.com/t/community guidelines and also incorporated here by reference. If you do not agree to any of these terms, the YouTube privacy notice, or the Community Guidelines, please do not use the YouTube Website. B. Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version htto://www.voutube.com/t/terms) . YouTube may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2. YouTube Website
A. These Terms of Service apply to all users of the YouTube Website, including users who are also contributors of video content, information, and other materials or services on the Website. The YouTube Website includes all aspects of YouTube, including but not limited to all products, software and services offered via the website such as the YouTube channels, the YouTube "Embeddable Player," the YouTube "Uploader" and other applications. B. The YouTube Website may contain links to third party websites that are not owned or controlled by YouTube. YouTube has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, YouTube will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve YouTube from any and all liability arising from your use of any third-party website. C. Accordingly, we encourage you to be aware when you leave the YouTube Website and to read the terms and conditions and privacy policy of each other website that you visit.
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A. In order to access some features of the Website, you will have to create a YouTube account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify YouTube immediately of any breach of security or unauthorized use of your account. B. Although YouTube will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of YouTube or others due to such unauthorized use.
4. General Use of the Website-Permissions and Restrictions
YouTube hereby grants you permission to access and use the Website as set forth in these Terms of Service, provided that: A. You agree not to distribute in any medium any part of the Website, including but not limited to User Submissions (defined below), without YouTube's prior written authorization. B. You agree not to alter or modify any part of the Website, including but not limited to YouTube's Embeddable Player or any of its related technologies. C. You agree not to access User Submissions (defined below) or YouTube Content through any technology or means other than the video playback pages of the Website itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate. D. You agree not to use the Website, including the YouTube Embeddable Player for any commercial use, without the prior written authorization of YouTube. Prohibited commercial uses include any of the following actions taken without YouTube's express approval: s sale of access to the Website or its related services (such as the Embeddable Player) on another website; s use of the Website or its related services (such as the Embeddable Player), for the primary purpose of gaining advertising or subscription revenue; s the sale of advertising, on the YouTube website or any third-party website, targeted to the content of specific User Submissions or YouTube content; s and any use of the Website or its related services (such as the Embeddable player) that YouTube finds, in its sole http://www.youtube.com/t/terms Page 1 of 5
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discretion, to use YouTube's resources or User Submissions with the effect of competing with or displacing the market for YouTube, YouTube content, or its User Submissions. (For more information about prohibited commercial uses, see our FAQ.) E. Prohibited commercial uses do not include: ^ uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your business or artistic enterprise; ^ using the Embeddable Player to show YouTube videos on an ad-enabled blog or website, provided the primary purpose of using the Embeddable Player is not to gain advertising revenue or compete with YouTube; s any use that YouTube expressly authorizes in writing. (For more information about what constitutes a prohibited commercial use, see our FAQ.) F. If you use the YouTube Embeddable Player on your website, you must include a prominent link back to the YouTube website on the pages containing the Embeddable Player and you may not modify, build upon, or block any portion of the Embeddable Player in any way. G. If you use the YouTube Uploader, you agree that it may automatically download and install updates from time to time from YouTube. These updates are designed to improve, enhance and further develop the Uploader and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit YouTube to deliver these to you) as part of your use of the Uploader. H. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Website in a manner that sends more request messages to the YouTube servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, YouTube grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. YouTube reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website (e.g, comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions. I. In your use of the website, you will otherwise comply with the terms and conditions of these Terms of Service, YouTube Community Guidelines, and all applicable local, national, and international laws and regulations. J. YouTube reserves the right to discontinue any aspect of the YouTube Website at any time.
5. Your Use of Content on the Site
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content on the YouTube Website. A. The content on the YouTube Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to YouTube, subject to copyright and other intellectual property rights under the law. Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. YouTube reserves all rights not expressly granted in and to the Website and the Content. B. You may access User Submissions solely: s for your information and personal use; s as intended through the normal functionality of the YouTube Service; and s for Streaming. "Streaming" means a contemporaneous digital transmission of an audiovisual work via the Internet from the YouTube Service to a users device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the user. Accessing User Videos for any purpose or in any manner other than Streaming is expressly prohibited. User Videos are made available "as is." F. User Comments are made available to you for your information and personal use solely as intended through the normal functionality of the YouTube Service. User Comments are made available "as is", and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the YouTube Service or otherwise as prohibited under this Agreement. G. You may access YouTube Content, User Submissions and other content only as permitted under this Agreement. YouTube reserves all rights not expressly granted in and to the YouTube Content and the YouTube Service. H. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. I. You agree not to circumvent, disable or otherwise interfere with security-related features of the YouTube Website or features
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that prevent or restrict use or copying of any Content or enforce limitations on use of the YouTube Website or the Content therein. G. You understand that when using the YouTube Website, you will be exposed to User Submissions from a variety of sources, and that YouTube is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against YouTube with respect thereto, and agree to indemnify and hold YouTube, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
6. Your User Submissions and Conduct
A. As a YouTube account holder you may submit video content ("User Videos") and textual content ("User Comments"). User Videos and User Comments are collectively referred to as "User Submissions." You understand that whether or not such User Submissions are published, YouTube does not guarantee any confidentiality with respect to any User Submissions. B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service. C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, 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 successors' and affiliates') 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, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable. D. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein. E. You further agree that you will not, in connection with User Submissions, submit material that is contrary to the YouTube Community Guidelines, found at htt p://www.voutube.com/Ucommunity g uidelines, which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations. F. YouTube does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with User Submissions. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. YouTube reserves the right to remove Content and User Submissions without prior notice.
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A. YouTube will terminate a User's access to its Website if, under appropriate circumstances, they are determined to be a repeat infringer. B. YouTube reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. YouTube may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
8. Digital Millennium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): ^ A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; ^ Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; ^ Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; ^ Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; ^ A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law: and
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^ A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. YouTube's designated Copyright Agent to receive notifications of claimed infringement is: Heather Gillette, 901 Cherry Ave., San Bruno, CA 94066, email: [email protected], fax: 650-872-8513. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to YouTube customer service through http://www.google.comisuooort/voutube . You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. B. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent: ^ Your physical or electronic signature; ^ Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; ^ A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and · Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.
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YOU AGREE THAT YOUR USE OF THE YOUTUBE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, YOUTUBE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. YOUTUBE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE YOUTUBE WEBSITE. YOUTUBE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE YOUTUBE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND YOUTUBE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
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IN NO EVENT SHALL YOUTUBE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE YOUTUBE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT YOUTUBE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. The Website is controlled and offered by YouTube from its facilities in the United States of America. YouTube makes no representations that the YouTube Website is appropriate or available for use in other locations. Those who access or use the YouTube Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
11. Indemnity
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You agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the YouTube Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the YouTube Website.
12. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the YouTube Website is not intended for children under 13. If you are under 13 years of age, then please do not use the YouTube Website. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
13. Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by YouTube without restriction.
14. General
You agree that: (i) the YouTube Website shall be deemed solely based in California; and (ii) the YouTube Website shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and YouTube that arises in whole or in part from the YouTube Website shall be decided exclusively by a court of competent jurisdiction located in San Mateo County, California. These Terms of Service, together with the Privacy Notice at htt p://www.voutube.com/t/privacv and any other legal notices published by YouTube on the Website, shall constitute the entire agreement between you and YouTube concerning the YouTube Website. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and YouTube's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. YouTube reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the YouTube Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND YOUTUBE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE YOUTUBE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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EXHIBIT 4
YouTTTube
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0' 2
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We' ve been receiving a tot of questions from members about what makes a video copyright infringing and ineligible for upl, copyright-infringing content can lead to the termination of your account, and possibly monetary damages if a copyright owr some guidelines to help you determine whether your video is eligible or whether it infringes someone else's copyright. You within our Help Center, As a general matter, we at YouTube respect the rights of artists and creators, and hope you will work with us to keep our c positive experience for everyone, including artists and creators.
How To Make Sure Your Video Does Not Infringe Someone Else's Copyrights
The way to ensure that your video doesn't infringe someone else's copyright is to use your skills and imagination to create could be as simple as taping some of your friends goofing around, and as complicated as filming your own short movie wit works. If its all yours, you never have to worry about the copyright-you own it! Make sure to follow the other guidelines in Be sure that all components of your video are your original creation-even the audio portion. For example, if you use an al owned by a record label without that record label's permission, your video is infringing the copyrights of others, and we will become aware of it.
Commercial Content Is Copyrighted
The most common reason we take down videos for copyright infringement is that they are direct copies of copyrighted con copyrighted content have alerted us that their content is being used without their permission. Once we become aware of a remove the video promptly. That is the law. Some examples of copyrighted content (although not all) are: · TV shows u Including sitcoms, sports broadcasts. news broadcasts, comedy shows, cartoons, dramas, etc. o Includes network and cable TV, pay-per-view and on-demand TV · Music videos, such as the ones you might find on music video channels ^ Videos of live concerts, even if you captured the video yourself o Even if you took the video yourself, the performer controls the right to use hislher image in a video, the son ! song being performed, and sometimes the venue prohibits filming without permission, so this video is likely rights. s Movies and movie trailers s Commercials · Slide shows that include photos or images owned by somebody else
A Few Guiding Principles
^ It doesn't matter how long or short the clip is, or exactly how it got to YouTube. If you taped it off cable, videotaped from some other website, it is still copyrighted, and requires the copyright owner ' s permission to distribute.
IMp:/Avww.youtube.com/t/howto copyright
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It doesn't matter whether or not you give credit to the ownerlauthorlsongwriter-it is still copyrighted. It doesn' t matter that you are not setting the video for money-it is still copyrighted. It doesn't matter whether or not the video contains a copyright notice-it is still copyrighted. It doesn ' t matter whether other similar videos appear on our site-it is still copyrighted. It doesn't matter if you created a video made of short clips of copyrighted content-even though you edited it togetl copyrighted.
What Will Happen If You Upload Infringing Content
Anytime we become aware that a video or any part of a video on our site infringes the copyrights of a third party, we will to required to do so by law. If you believe that a video on the site infringes your copyright, send us a copyright notice and we that we have removed a video that you uploaded in error and that you are the copyright owner or have permission, you cal know. If you repeatedly post infringing content, your account will be terminated. This is also a requirement of the law.
Using Some Copyrighted Content in Your Videos
V1,1-tile videos that are direct copies of someone else ' s content are clear copyright violations, there are certain very limited c very short clips of a copyrighted video or song may be legal even without permission. This is known as the "fair use " princi To determine whether a particular use of a short clip of a copyrighted video or song qualifies as a "fair use," you need to al are outlined in the U.S. copyright statute. Unfortunately, the weighing of these four factors is often quite subjective and cos often difficult to determine whether a particular use is a "fair use " If the copyright owner disagrees with your interpretation may chose to resolve the dispute in court. If it turns out that your use is not a fair use, then you are infringing the copyright liable for monetary damages. If you would like to learn more about the principle of fair use, below are a few links to websites that discuss it. Please reme decision about whether and how to exercise your fair use rights is solely yours, and we at YouTube bear no responsibility 1 Fair Use Links on the Web ^ http.llwww.copyright.govlflslf110'L.html · http:11fairuse.stanford.edu/Copyright_and_Fair_Use_Overviewlchapter9l s http:Nwww.copy.rightwebsife. comlinfolLaw/F airLisp .aspx ^ http://chidlingeffects. orglfai ruse) DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL AD' INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
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EXHIBIT 5
Lenz v. Universal I Electronic Frontier Foundation
http:llwww.eff.orglcasesllenz-v-universal
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Home » Our Work a Cases
Lenz v. Universal
Related Issues: IP and Free Speech
The Electronic Frontier Foundation (EFF) filed suit against Universal Music Publishing Group (UMPG), asking a federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on the Internet. Stephanie Lenz's 29-second recording shows her son bouncing along to the Prince song "Let's Go Crazy," which is heard playing in the background. Lenz uploaded the home video to YouTube in February to share it with her family and friends. But last month, YouTube informed Lenz that it had removed the video from its website after Universal claimed that the recording infringed a copyright controlled by the music company. Under federal copyright law, a mere allegation of copyright infringement can result in the removal of content from the Internet. "I was really surprised and angry when I learned my video was removed," said Lenz. "Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends." "Universal's takedown notice doesn't even pass the laugh test," said EFF Staff Attorney Corynne McSherry. 'Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video." Last May, UMPG's parent company, Universal Music Group, sent a baseless copyright takedown demand to YouTube for a video podcast by political blogger Michelle Malkin. That video was quickly reposted after Malkin fought back. "Copyright abuse can shut down online artists, political analysts, or -- as in this case -- ordinary families who simply want to share snippets of their day-to-day lives," said EFF Staff Attorney Marcia Hofmann. "Universal must stop making groundless infringement claims that trample on fair use and free speech." The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video. This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper takedowns under the Digital Millennium Copyright Act. Watch the video here: http:llwww.youtube.comlwatch'?v=N1 KfJHFWIhQ
Documents
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April 1B, 2008
January 03, 2008
[POP, 143.04 KB]
Second Amended Complaint .............................. Exhlblts
April B, 2008 [PDF, 7.92 MB]
Order granting defendants' motion to dismiss
December 19, 2007
[PDF, 136.60 KB]
Declaration in Support of Motion to Dismiss - -- -- - -- --Exhibits A-F
[PDF, 87927 KB]
[POF663,86 KB1
t New Study on -Copyright and Creativity from ... Center for Social Media ----------------------Printed Material Notice: Any and all original material on the EFF website may be freely distributed at will under the Creative Commons Attribution-NonCommercial License, unless otherwise noted. All material that is not original to EFF may require permission from the copyright holder to redistribute.
1 oft.
5/22/2008 10:50 AM
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Exhibits G-K [PDF, D B]
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Reply in Support of Motion to Dismiss [PDF, 70.71 KB] [PDF, 63.86
Supplemental Declaration In_ Support a f Motion to Dismiss
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Exhibits A-C
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Exhibits D-E pop, 425.33 KB]
November i3, 2007
Lenz uppositian to_ Motion to Dismiss Declaration of Lenz
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[PDF, 652.64 KB]
Declaration of McSheny -----
[PDF, 1.42 MB] [PDF, 137.29 KB]
Declaration of Schaffer
September 21, 2007
Motion to Dismiss
August 15, 2007
[PDF, 152.05 KB]
Amended Complaint
July 24, 2007
[PDF, 122.53 KB]
Complaint
[PDF, 121.97 KB]
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Pu
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Fair Use Principles for User Generated Video Content
Online video hosting services like YouTube are ushering in a new era of free expression online. By providing a home for '`user-generated content" (UGC) on the Internet, these services enable creators to reach a global audience without having to depend on traditional intermediaries like television networks and movie studios. The result has been an explosion of creativity by ordinary people, who have enthusiastically embraced the opportunities created by these new technologies to express themselves in a remarkable variety of ways. The life blood of much of this new creativity is fair use. the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up our culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. These forms of free expression are among those protected by the fair use doctrine. New video hosting services can also be abused, however. Copyright owners are legitimately concerned that a substantial number works posted to some UGC video sites are simply unauthorized, verbatim copies of their works. Some of these rightsholders have sued service providers, and many utilize the "notice-and-takedown" provisions of the Digital Millennium Copyright Act (D14CA) to remove videos that they believe arc infringing. At the same time. a broad consensus has emerged among major copyright owners that fair use must be accommodated even as steps are taken to address copyright infringement. t Content owners and service providers have indicated their mutual intention to protect and preserve fair use in the UGC context, even as they move forward with efforts to address copyright concerns. The following principles are meant to provide concrete steps that they can and should take to minimize the unnecessary, collateral damage to fair use as they move forward with those efforts. 1. A Wide Berth for 'I'ratasformative, Creative Uses: Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody. satire. or scholarship. or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.
See
User Generated Content Principles. Principle #6,
lap:':'uuzecp inei
45.com>.
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But a commitment to accommodating "fair use" alone is not enough. Because the precise contours of the lair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard. Accordingly, content owners should, as a general matter, avoid issuing DMCA or other informal takedown notices for uses of their content that constitute fair uses or that are noncommercial, creative, and transfonnative in nature. a Filters Must Incorporate Protections for Fair Use. Many service providers are experimenting with automated content identification technologies ("filters") to monitor their systems for potential copyright infringements. If a service provider chooses to implement such filters, the following precautions should be taken to ensure that fair uses are not mistakenly caught in them: a. Three Strikes Before Blocking: The use of "filtering" technology should not he used to automatically remove. prevent the uploading of. or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are "three strikes" against it: (1) the video track matches the video track of a copyrighted work submitted by a content owner: (2) the audio track matches the audio track of that scone copyrighted work; and (3) nearly the entirety (e.g. 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a "ratio test"). If filtering technologies are not reliably able to establish these "three strikes." further human review by the content owner should be required before content is taken down or blocked. b. Humans Trump Machines: Human creators should be afforded the opportunity to dispute the conclusions of automated filters. If a user's video is "matched" by an automatic filter. the user should be promptly notified by the service provider of the consequences of the "match" and given the opportunity to dispute the conclusions of the [filtering process. Notice should he provided to the user whether or not the "match" results in the blocking of content (e.g., a parodist may not want the target of the parody receiving a share of revenues generated by it). if the user disputes a "match" pursuant to the above dispute mechanism provided by the service provider, the provider should promptly notify the relevant content owner. The service provider may choose to impose a brief "quarantine" period tan the content (no more than three business days), in order to afford content owner an opportunity to issue a DMCA takedown notice after human review of the disputed content. Viacom's website, for example, states that "regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted material where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for noncommercial purposes."
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c.
Minimization: In applying automated filtering procedures, service providers should take steps to minimize the impact on other expressive activities related to the blocked content. For example, automated blocks should not result in the removal of other videos posted by the same user (e.g., as a result of account cancellation) or the removal of user comments posted about the video.
3. [MICA Notices Required for Removals: The DMCA's "notice-and-takedown" procedures provide two important protections for creators whose noninfringing materials are improperly tamgeted for removal: ( i ) the right to sue where the removal is the result of a knowing material mnisrepresentalion and (2) a "counternotice-and-putback" procedure that overrides a takedown notice unless a content owner is willing to file an infringement action in court. ' In order to preserve these protections, service providers should require compliant DMCA takedown notices from content owners before removing content in any manner that does not afford users the ability to contest and override the removal (such as the dispute and notice procedure described in Principle #2b above). 4. Notice to Users upon u MCA Takedown: Upon issuance of any DMCA takedown notice by a content owner, the service provider should provide prompt notice to the user who posted the allegedly infringing material. Such notices should include (1) an entire copy of the takedown notice. (2) information concerning the user's right to issue a DMCA counter-notice and the provider's procedures for receiving such notices, and (3) information about how to contact the content owner directly in order to request a reconsideration of the takedown notice (see Principle #5 below). Where feasible, this information should be made available to the posting user on the page where the content formerly appeared, as well as in private communications (such as email). 5. Informal "Dolphin I-Iodine": Every system makes mistakes, and when fair use "dolphins" are caught in a net intended for infringing "tuna," an escape mechanism must be available to them. Accordingly. content owners should create a mechanism by which the user who posted the allegedly infringing content can easily and informally request reconsideration of the content owner's decision to issue a DMCA takedown notice and explain why the user believes the takedown was improper. This "dolphin hotline" should include a website that provides information about how to request reconsideration, and .a dedicated email address to which requests for reconsideration can be sent. ' Service providers should ensure that users are informed of these mechanisms for reconsideration. both on the site where the removed material previously appeared, as well as in the notice described in Principle #4 above.
17 U.S.C. § 512(1}. 17 U.S.C. y 512(g), i Viacom, for example, has established a dedicated email address for this purpose: cclt ^ r^[^_rl^^at.icesL1..v iacont.com .
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Upon receiving an informal request for reconsideration of a particular takedown notice, the content owner should evaluate the request promptly. generally within three (3) business days. and retract the notice where it was issued in error. 6. Mandatory Reinstatement upon Counter-notice or Retraction: Service providers should establish and follow the formal "counternotice-and-puthack" process contemplated by the DMCA. Service providers also should provide users with a streamlined mechanism to reinstate content in cases when a takedown notice has been retracted by the content owner.
These Principles endorsed by: Electronic Frontier Foundation Center for Social Media, School of Communications, American University Program on Information Justice and Intellectual Property, Washington College of Law, American University Public Knowledge Berkman Center for Internet and Society at Harvard Law School ACLU of Northern California
a
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washingtonposteDry
Standing Up To Takedown Notices
Web Users 'burn the Tables on Copyright Holders
By Catherine Rarnpell Washington Post Staff Writer Friday. October i 9. 2007; DO I
On a chilly February day, Stephanie Lenz decided to show her family and friends what her bouncing baby boy could do. She plopped 13-month-old Holden. then learning to walk, on the floor. cranked up Prince's song "Let's Go Crazy " and whipped out the digital camera. In the 29-second YouTube video that resulted, Holden smiles and bobs up and down to the music. According to Universal Music Publishing . Group, he also helps his mom commit a federal crime: copyright infringement. which owns the rights to Prince's song, sent a notice to YouTube requesting the video be taken down but did not take action against Lenz. On the contrary, Lenz sued Universal for abusing copyright law.
In June, Universal,
"The idea that putting a little video of your kid up on YouTube can mean you have to go to court, and maybe declare bankruptcy and lose your house, is just wrong," Lenz said. "I don't like being made to feel afraid. and l don't like being bullied." Universal did not return calls seeking comment on Lenz ' s case. Companies have been pursuing copyright violations for decades, but technology -- and the proliferation of online venues like YouTube that allow self publishing has created opportunities both for infringement and for ways to identify alleged violations. With more self publishing sites comes a boom in "takedown notices, " warnings that the material is infringing a copyright and needs to be
removed.
YouTube, which has been sued by many parties for hosting videos alleged to violate copyright, this week started using a filter to try to identify such content before copyright holders notice it. A group of other content holders. including NBC Universal and Microsoft, yesterday announced standards for how companies should deal with material that people post online. But recently -- in part because of backlash among users and advocacy groups who say copyright holders are abusing the law and wrongfully taking down content -- the challenges to these copyright claims also appear to be increasing. "These companies are trying to shoot a mouse with an elephant gun." said Gigi Sohn. director of Public They like to accuse their customers, the music fans and TV fans out there, of not respecting the law, but I don't think they respect
Knowledge, a public-policy think tank that focuses on intellectual property.
hitp://www.washingtonpost.comlwp-dynlcontentlarticle/2007110/ 181AR2007 1 0 1 802453 p... 12/3/2007
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Copyright holders say they are trying to legitimately protect their property and that takedown notices issued for noninfringing material arc usually because of mistakes and not malevolence. "These companies are sending out 100.000 takedown notices, so of course once in a while there's going to he a fly caught in the ointment." said Douglas Lichtman, a l ICLA law professor who advises Viacom on copyright matters. "Everyone's trying to be careful. though. They don't want the PR backlash that comes when they make a mistake." Copyright exemptions for fair use generally depend on whether the allegedly infringing product is " transformative " in nature -- that is, using copyrighted material for some new. creative purpose is considered okay. One such purpose_ protected by law. is comment or parody. Still. some say accusations of copyright violations are sometimes just attempts to squash criticism. Michelle _Malkin. a popular blogger_ said this was the case when her video criticizing rapper Akon for misogyny was removed from YouTuhe after a complaint from Universal Music Group. "It was entirely obvious that trying to wipe off criticism from YouTube is what their claim was all about." Malkin said. She sent YouTube a counternotice: Universal Music backed down. and the video went back up. Universal Music did not return calls seeking comment on Malkin's video. A takedown notice issued for a video debunking Uri Geller, a self-described paranorntalist. has also provoked censorship claims. Geller, who has an N13C series beginning next week, became a household name in the 1970s for saying he could bend spoons with his mind. The YouTube video in question features several seconds of footage that Geller's brother-in-law filmed and that Geller says was used without permission. He ardently disputes that his copyright claim is meant to squelch free speech. "I've been controversial all my life. and more controversy :Weans more publicity for me." Geller said. "They can say whatever they want to about me ... I just want them to edit out the part of the clip that they stole from us." Other alleged infringers claim that copyright holders abuse the law because of overly zealous creative control. Ric Silver, the choreographer of the Electric Slide. says he spent three years contacting 17.000 Web sites about what he says is their "incorrect portrayal" of the famous line dance. Silver also told YouTube to take down a number of videos showing the dance, including one clip of a concert filmed by Kyle Machulis. Machulis sued Silver for copyright abuse. As part of the settlement. Silver agreed to allow the video to be repostcd with a tagline crediting him for the choreography. but he now says he's waiting for paperwork from the Library of Congress that will allow him to open new lawsuits over clips like Machulik's. "I can't go to every wedding and bar mitzvah in the country, so this is all I can do to make sure people
hit p://wrww.washi ngtonpost.com!wp-dyn/content/article/2007/ 10/ 181AR2007101802453_p... 12/3/2007
StandingasI{ T "'S7-`C h5`'' h Case 5:07-cv-03783-JF learn it right." Silver said.
Document 29-2 Document 38-2
Filed 12/0312007 Filed 05/23/2008
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YouTuhe isn't the only hosting site on which copyright law is sometimes allegedly abused. EBav has been the setting of many of these infringement claims. too, but generally over the "first sale doctrine" -a portion of copyright law regarding legal resale of licensed goods -- rather than fair use. Take, for example. Karen Dudnikov and Michael Meadors. They run a mom-and-pop eBay store out of rural Colorado. 10 miles from the nearest p
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