Joost, an Internet-based TV service being launched by the creators of Skype and Kazaa, said Thursday it has raised $45 million from five investors including CBS Corp. and Viacom Inc. and an influential Hong Kong telecommunications executive....

No copyright troubles are envisioned with Joost, which has gone the mainstream route by signing deals with major content providers, including its new investors. Viacom, for example, has agreed to let Joost show content from MTV, Nickelodeon, Paramount and Comedy Central. Overall, Joost says it now has 150 channels of video.

Hmm. No copyright troubles are envisioned with Joost. Unlike, say, YouTube? It struck me because I was just reading the complaint and answer in Viacom's copyright infringement litigation against YouTube and Google. It looks to me like the entertainment industry is trying to move the goalpost again. So, I decided we will cover this litigation here, as I have the time. To get started, here are Viacom's complaint [PDF] and YouTube/Google's answer [PDF], as text, thanks to Groklaw volunteer numist.

Viacom mentions Joost, as it happens in its complaint, without mentioning its investment:

21. Examples of legitimate licensed channels for the distribution of Plaintiffs' programs include Apple's iTunes Music Store, which sells secure digital downloads of television shows from several of Plaintiffs' television networks; Joost, an advertising-supported, Internet-based television service; and numerous others that currently exist or are just emerging. The shows distributed through these licensed on-line distribution channels include "The Daily Show with Jon Stewart," "The Colbert Report," and "South Park" from Comedy Central; "SpongeBob SquarePants," and "Dora the Explorer," among others, from Nickelodeon; and "Beavis and Butthead," "Laguna Beach," and "Jackass," among others, from MTV.

Viacom would prefer that we all view their works on their own licensed channels, which is understandable, and it would like the law to nudge us all over to Joost instead of YouTube, I guess. The content industry can't grasp the concept that users want to participate in cultural expression, not just be passively fed entertainment.

And this Joost news does make my cynical side wonder: is this just another case of using the legal system as an anticompetitive business tactic? Even if it is, it raises some very serious questions, which will affect us all. At the center of the argument, as far as I can determine so far, is fair use and what kind of an Internet we will have. And second, whose job is it to monitor for copyright infringement under the DMCA? I gather Viacom does not want YouTube to fit under the protective umbrella the DMCA provides in Section 512, limitations on liability, and it doesn't want to have to monitor. It would like YouTube/Google to have that burden, which isn't what the DMCA says. If they succeed in altering the law, it will change how people use the Internet radically. And of course, fair use is the Cinderella of copyright law. Before she went to the ball. Here's part of Larry Lessig's reaction:

This case — if it is really intended as a law suit and not a move in a bargaining game — should be decided on the meaning of s512(c). The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.

I gather Viacom doesn't want to have to sue the individual users who are uploading allegedly infringing content, so it is suing deep pockets Google/YouTube instead. Maybe they've noticed how the RIAA is faring suing individual infringers who don't have deep pockets.

It's a copyright infringement action, and while it's too early to clearly see from the answer what the whole story is, as it goes into discovery, I'm sure we'll learn what they mean by saying that Viacom has unclean hands and is misusing copyrights, two of their defenses. You'll recall that copyright misuse is one of the defenses IBM raised in IBM's motion for summary judgment of SCO's copyright claim, now pending before the court and in IBM's motion for summary judgment on its Tenth Counterclaim (Part I and Part 2 [PDFs]). The issue was raised also at the hearing arguing this motion. If someone could please OCR those PDFs, I'd appreciate it, by the way.

There are many ways to demonstrate copyright misuse, but basically it's any time a copyright holder tries to stretch copyright beyond what the law allows to get rights beyond what the law provides (of course it is way more complex than that simple phrase), and the penalty is that you lose your right to enforcement. It's a counterclaim raised recently in a new RIAA case, Lava v. Amarao, and EFF filed an amicus brief that will give you a taste of what copyright misuse means.

Copyright misuse is an evolving doctrine, and I suspect that's what Viacom has in mind, to evolve it, and likely YouTube/Google will argue that Viacom is trying to gain more protection than the DMCA allows.

YouTube and Google raise the following 12 defenses:

• FIRST DEFENSE (DMCA Safe Harbors) - Plaintiffs' claims are barred in whole or in part because Defendants are protected by one or more of the DMCA Safe Harbors in 17 U.S.C. § 512.

• SECOND DEFENSE (LICENSE) - Plaintiffs' claims are barred in whole or in part by licenses, express and implied, granted or authorized to be granted by Plaintiffs.

• THIRD DEFENSE (FAIR USE) - Plaintiffs' claims are barred in whole or in part by the doctrine of fair use.

• FOURTH DEFENSE (FAILURE TO MITIGATE) - Plaintiffs' claims are barred in whole or in part because Plaintiffs have failed to mitigate their damages, if any.

• FIFTH DEFENSE (FAILURE TO STATE A CLAIM) - Plaintiffs' allegations fail to state a claim for copyright infringement of any work not listed on Exhibit A of the Complaint.

• SIXTH DEFENSE (INNOCENT INTENT)- Plaintiffs' damages, if any, are limited by Defendants' innocent intent.

• SEVENTH DEFENSE (COPYRIGHT MISUSE) - Plaintiffs' claims are barred in whole or in part by the doctrine of copyright misuse.

• EIGHTH DEFENSE (ESTOPPEL)- Plaintiffs' claims are barred in whole or in part by the doctrine of estoppel.

• NINTH DEFENSE (WAIVER) - Plaintiffs' claims are barred in whole or in part by the doctrine of waiver.

• TENTH DEFENSE (UNCLEAN HANDS) - Plaintiffs' claims are barred in whole or in part by the doctrine of unclean hands.

• ELEVENTH DEFENSE(LACHES) - Plaintiffs' claims are barred in whole or in part by the doctrine of laches.

• TWELFTH DEFENSE (SUBSTANTIAL NON-INFRINGING USE) - Plaintiffs' claims are barred in whole or in part based on the doctrine of substantial non-infringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine's inapplicability.

The laches defense and others like waiver and estoppel raise the question: why did Viacom wait so long to sue YouTube? Viacom's own press release announcing the litigation had been filed highlights that it claims that their infringed works have been viewed 1.5 billion times:

The complaint contends that almost 160,000 unauthorized clips of Viacom’s programming have been available on YouTube and that these clips had been viewed more than 1.5 billion times.

If that is so, why didn't Viacom do something after, say, a million views? Or a thousand? Seriously.

Viacom tells a long tale of difficulties in getting materials removed, and that will no doubt play a large part in the trial, if it goes to trial. And I think this one might, since what Viacom wants, in effect, is to shut down YouTube as we know it.

I am intrigued also by the fifth defense. And in what way does YouTube/Google believe that Viacom provided them licenses, express or implied? I really do think this is going to be an important and interesting lawsuit.

Meanwhile, while this is a much more normal lawsuit than we are accustomed to on Groklaw, in that both sides have a position that is at least in some respects rational, I think it is worthwhile to just ask yourself what the Internet will be like if Viacom wins or if Google wins. The entertainment industry obviously likes the old method of entertainment, where they provide it and we sit passively and consume it. But that isn't what people enjoy doing any more, so in that sense, it's a test of the old versus the new. And where exactly is fair use in Viacom's vision?

To understand the arguments, you need the DMCA handy, and especially § 512, Limitations on liability relating to material online. That is what Viacom is challenging, whether YouTube has those protections. Viacom would like Google/YouTube to have to find and prevent infringement, rather than having Viacom monitor and send cease and desist letters for them to react to. But what does the law say? Whose job is it to notice infringement under the law? So is this the entertainment industry's next chess move to reassert control one more notch?

Of course, what makes it scary is that the DMCA is hardly an enabling statute for the new. The fact that the DMCA will be interpreted in this litigation is what makes it significant.

Finally, here's the law on fair use, the part of copyright law the entertainment industry never fights for and never gets misty-eyed over, nor does it seek to protect or extend it. Google, however, is fighting for fair use, in that it is one of its defenses, which means that unless the case settles, we are going to find out what the courts think fair use is when it comes to short clips of videos online.

Disclaimer: I love YouTube. Most of us do, and no doubt that is one reason Google/YouTube request a jury trial. I love the law too, though, and I'll strive to explain it all as it unfolds fairly to both sides.

*****************************************

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

________________________________________

VIACOM INTERNATIONAL INC.,
COMEDY PARTNERS,
COUNTRY MUSIC TELEVISION, INC.,
PARAMOUNT PICTURES CORPORATION,
and BLACK ENTERTAINMENT TELEVISION
LLC,

Plaintiffs,

v.

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

Defendants.

________________________________________

Civil Action No. _____________

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
AND DAMAGES

_____________________________________

Plaintiffs Viacom International Inc., Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black Entertainment Television LLC (collectively, "Plaintiffs"), by and for their Complaint against Defendants YouTube, Inc. and YouTube, LLC (collectively, "YouTube"), and Google Inc. ("Google") (all collectively, "Defendants"), aver as follows:

INTRODUCTION

1. Over the past decade, the emergence of broadband networks, Internet protocol and inexpensive wireless networks has revolutionized the way Americans inform and entertain themselves. Millions have seized the opportunities digital technology provides to obtain creative works and to express themselves creatively. Entrepreneurs have made

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2. YouTube is one such entity. YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America's creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube's benefit without payment or license. YouTube's brazen disregard of the intellectual property laws fundamentally threatens not just Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.

3. YouTube's website purports to be a forum for users to share their own original "user generated" video content. In reality, however, a vast amount of that content consists of infringing copies of Plaintiffs' copyrighted works, including such popular (and obviously copyrighted) television programming and motion pictures as "SpongeBob SquarePants,""The Daily Show with Jon Stewart,""The Colbert Report,""South Park,""Ren & Stimpy,""MTV Unplugged,""An Inconvenient Truth,""Mean Girls,"and many others. Unauthorized copies of these and other copyrighted works are posted daily on YouTube and each is viewed tens of thousands of times. As Dow Jones reported, "[i]t's no secret that millions of Internet users every day watch copyright-infringing video clips on

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4. Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site.

5. Defendants know and intend that a substantial amount of the content on the YouTube site consists of unlicensed infringing copies of copyrighted works and have done little or nothing to prevent this massive infringement. To the contrary, the availability on the YouTube site of a vast library of the copyrighted works of Plaintiffs and others is the cornerstone of Defendants' business plan. YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value.

6. YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site. Because YouTube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it "take down"the infringing works. In

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7. Moreover, YouTube has deliberately withheld the application of available copyright protection measures in order to coerce rights holders to grant it licenses on favorable terms. YouTube's chief executive and cofounder Chad Hurley was quoted in the New York Times on February 3, 2007, as saying that YouTube has agreed to use filtering technology "to identify and possibly remove copyrighted material,"but only after YouTube obtains a license from the copyright owner. Geraldine Fabrikant & Saul Hansell, Viacom Tells YouTube: Hands Off, N.Y. Times, Feb. 3, 2007, at C1. Those who refuse to be coerced are subjected to continuing infringement. Id.; See also Saul Hansell, A Bet That Media Companies Will Want to Share Ad Revenue, N.Y. Times, Sept. 30, 2006, at C1.

8. YouTube has also implemented features that prevent copyright owners from finding infringing videos by searching the YouTube site. YouTube thereby hinders Plaintiffs' attempts to locate infringing videos to protect their rights. At the same time, YouTube allows its users to make the hidden videos available to others through other YouTube features like the "embed," "share," and "friends" functions. In this way, YouTube continues to profit from the infringement, while hindering Plaintiffs from preventing it.

9. Defendant Google recently purchased YouTube for $1.65 billion, generating extraordinary riches for YouTube's founders and investors. In recognition of the undeniable

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10. Defendants' infringement has harmed and continues to harm the interests of authors, songwriters, directors, producers, performers, and many other creators. If left unchecked, rampant infringement will gravely undermine Plaintiffs and other companies that generate creative works, and will threaten the livelihoods of those who work in and depend upon these companies. Plaintiffs therefore have no choice but to seek immediate redress. Plaintiffs seek a declaration that Defendants' conduct willfully infringes Plaintiffs' copyrights, a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights, and statutory damages for Defendants' past and present willful infringement, or actual damages plus profits, of at least one billion dollars.

JURISDICTION AND VENUE

11. This is a civil action seeking damages and injunctive relief for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq.

12. This Court has original subject matter jurisdiction over all claims pursuant to 28 U.S.C. § § 1331 and 1338(a).

13. This Court has personal jurisdiction over Defendants. Google does continuous and systematic business in New York and this District. It maintains an office and employs personnel in New York and this District, and is thus physically present in the state. See N.Y. C.P.L.R. § 301. On information and belief, YouTube also does continuous and systematic business in New York and in this District. See Id. All Defendants have also

5

14. Venue is proper in this District pursuant to 28 U.S.C. § § 1391(b), (c) and 1400(a).

PLAINTIFFS AND PLAINTIFFS' BUSINESSES

15. Plaintiff Viacom International Inc. ("Viacom"), one of the world's leading creators of programming and content across all media platforms, is a Delaware corporation with its principal place of business in New York, New York.

16. Plaintiff Comedy Partners, an affiliate of Viacom, is a general partnership formed in New York with its principal place of business in New York, New York.

17. Plaintiff Country Music Television, Inc., an affiliate of Viacom, is a Tennessee corporation with its principal place of business in Nashville, Tennessee.

18. Plaintiff Paramount Pictures Corporation, an affiliate of Viacom, is a Delaware corporation with its principal place of business in Los Angeles, California.

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20. Plaintiffs are among the world's preeminent creators, producers and distributors of copyrighted television programming, motion pictures, short form audiovisual works and other entertainment programming, who have invested and continue to invest many millions of dollars annually to create and disseminate these works because the Copyright Act protects their economic incentive to do so and tens of millions of consumers desire to experience the works. Plaintiffs distribute and publicly perform those works, and/or license them for distribution and/or public performance, by telecast on cable and satellite television systems, in motion picture theaters, on DVD and other video formats, through their own websites and various authorized internet distribution channels, and over cell phones and other portable devices, among other ways. Plaintiffs' television channels and trademarks include MTV, Nickelodeon, VH1, Comedy Central, Logo, MTV2, MTV Tres, Nick at Nite, Noggin, TV Land, CMT, mtvU, Nickelodeon, The N, and BET. Plaintiffs' motion picture labels include Paramount Pictures, DreamWorks, Paramount Vantage, MTV Films, and Nickelodeon Films.

21. Examples of legitimate licensed channels for the distribution of Plaintiffs' programs include Apple's iTunes Music Store, which sells secure digital downloads of television shows from several of Plaintiffs' television networks; Joost, an advertising-supported, Internet-based television service; and numerous others that currently exist or are just emerging. The shows distributed through these licensed on-line distribution channels include "The Daily Show with Jon Stewart," "The Colbert Report," and "South Park" from

7

22. Plaintiffs also offer streaming video clips of many of their most popular television shows and other works through their own websites, such as www.comedycentral.com. Plaintiffs derive advertising revenue and other benefits from the Internet traffic generated by the availability of these video clips on their websites.

23. Defendants' conduct directly and secondarily infringes the copyrights in works owned by or exclusively licensed to Plaintiffs that are the subject of valid Certificates of Copyright Registration from the Register of Copyrights, including but not limited to those listed on Exhibit A attached to this Complaint.

DEFENDANTS AND THE INFRINGING YOUTUBE SERVICE

24. Defendant YouTube, Inc. is a Delaware corporation with its principal place of business in San Bruno, California.

25. Defendant YouTube, LLC is a Delaware limited liability company with its principal place of business in San Bruno, California. On information and belief, YouTube, LLC is the successor in interest of YouTube, Inc. YouTube, Inc. and YouTube, LLC are referred to collectively herein as "YouTube."

26. YouTube is a wholly owned and controlled subsidiary of Defendant Google Inc., a Delaware corporation with its principal place of business in Mountain View, California, and a place of business in the State of New York and this District. Pursuant to a transaction that was publicly announced on October 9, 2006, and closed on November 13, 2006, Google acquired YouTube for $1.65 billion.

8

28. Google exercises substantial and continuing control over the continuing acts of YouTube that form the subject matter of this complaint. Google's press release at the time of the closing of the $1.65 billion acquisition announced that YouTube would stay "on the same course" and, on information and belief, Google determined to have YouTube continue to withhold measures to prevent the massive copyright infringement known to be taking place on the site. Google has also recently launched a feature on Google's own website whereby a search for videos returns thumbnails and results for videos on YouTube, thereby participating in, inducing, contributing to, and profiting from the infringement on YouTube. Additional massive damages to plaintiffs and others have been caused by Google's preservation and backing of YouTube's infringing business model.

NATURE OF THE ACTION

29. Under Section 106 of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the "Copyright Act"), Plaintiffs have the distinct, severable, and exclusive rights to, among other things, reproduce, publicly perform, and publicly display their copyrighted works. 17 U.S.C. § § 106(1), (4), (5).

9

31. Though the videos available on YouTube are uploaded by users in the first instance, upon upload the videos become part of the YouTube library for performance and display on YouTube's own website, which Defendants control and directly profit from. When a user uploads a video, YouTube copies the video in its own software format, adds it to its own servers, and makes it available for viewing on its own website. A user who wants to view a video goes to the YouTube site by typing www.youtube.com into the user's web browser, enters search terms into a search and indexing function provided by YouTube for this purpose on its site, and receives a list of thumbnails of videos in the YouTube library matching those terms. YouTube creates the thumbnails, which are individual frames from videos in its library -- including infringing videos -- for the purpose of helping users find what

10

32. YouTube also allows any person to "embed" any video available in the YouTube library into another website (such as a blog, MySpace page, or any other page on the web where the user can post material). To do this, the user simply copies the "embed" code, which YouTube supplies for each video in its library, and then pastes that code into the other website, where the embedded video will appear as a television-shaped picture with the YouTube logo prominently displayed and a triangular icon that any user can click to play the video. When a user clicks the play icon, the embedded video plays within the context of the host website, but it is actually YouTube, not the host site, that publicly performs the video by transmitting the streaming video content from YouTube's own servers to the viewer's computer.

11

34. Because of its prominent display of YouTube's logo and the share function that draws new users to YouTube's own website, the embed function has contributed significantly to the explosive growth in YouTube's popularity, network, and enterprise value. But the videos that YouTube publicly performs and displays through the embed function to draw users back to YouTube's own site are frequently the most popular copyrighted works created and owned by Plaintiffs, not YouTube.

35. YouTube and its users have not received a valid license, authorization, permission or consent to use the registered copyrighted works owned by Plaintiffs that have appeared and continue to appear on the YouTube website and are at issue in this action, including but not limited to those listed on Exhibit A hereto. Instead, in violation of Plaintiffs' rights under copyright law, YouTube has willfully, intentionally, and purposefully reproduced, publicly performed, and publicly displayed the copyrighted works, and/or knowingly facilitated, enabled, induced, and materially contributed to infringing uses thereof, and/or refused to exercise its ability to control or supervise infringing uses thereof from which it obtains direct financial benefits.

36. Defendants have actual knowledge and clear notice of this massive infringement, which is obvious to even the most casual visitor to the site. The rampant

12

37. Defendants profit handsomely from the infringement of Plaintiffs' copyrighted works, and receive financial benefits directly attributable to the infringing activity. YouTube has built an infringement-driven business by exploiting the popularity of Plaintiffs' copyrighted works (and the works of other copyright owners) to draw millions of users to its website. YouTube derives advertising revenue directly attributable to the infringing works, because advertisers pay YouTube to display banner advertising to users whenever they log on to, search for, and view infringing videos. Through the embed function and in other ways, infringing videos also draw users to YouTube's site in the first instance, and YouTube then derives additional advertising revenue when those users search for and watch other videos on the site. In either event, there is a direct causal connection between the presence of infringing videos and YouTube's income from the additional "eyeballs" viewing advertising on the site. The draw of infringing works has also made an enormous contribution to the explosive growth of YouTube, resulting in the remarkable $1.65 billion valuation Google placed on it only a short time after its founding. Thus,

13

38. YouTube has the right and ability to control the massive infringement on its site. As described above, the infringement is being committed on YouTube's own website, which Defendants control, not on other websites controlled by others. YouTube has reserved to itself the unilateral right to impose Terms of Use to which users must agree when they accept YouTube's invitation to post videos to the site, and YouTube has the power and authority to police what occurs on its premises. Through its Terms of Use, YouTube imposes a wide number of content-based restrictions on the types of videos uploaded to the site, and reserves and exercises the unfettered right to block or remove any video which, in its sole discretion, it deems "inappropriate." YouTube proactively reviews and removes pornographic videos from its library, but refuses to do the same thing for videos that obviously infringe Plaintiffs' copyrights. YouTube also demands that users grant YouTube a "worldwide . . . license to use, reproduce, distribute, prepare derivative works of, display, and perform" the videos they add to YouTube's library. See Terms of Use, http://www.youtube.com/t/terms (last visited March 12, 2007).

39. On information and belief, YouTube has also sent cease and desist letters to persons who provide software that can be used to make copies of videos from YouTube's library, asserting that such use is not "authorized." In truth, YouTube opposes such copying because YouTube receives advertising revenue and new users only if viewers are drawn to YouTube's own site to view videos, not when users make copies that they can share with others independently of YouTube's site. Thus, when it is in YouTube's financial interest to do so, it proactively polices conduct it regards as unauthorized, even on other websites.

14

41. Even when YouTube responds to notices of specific infringing videos, its response has been ineffectual. YouTube does not even try to block slightly altered copies of the very same video from being uploaded again immediately after being removed. It does not block repeat infringers from signing up for the service again with a new account. And it removes only the specific infringing clips at the specific web addresses (URLs) identified in

15

42. YouTube adopted this hands-off policy knowing that copyright owners have a limited ability to monitor for infringing videos on its site and send takedown notices for the videos they find. Copyright owners can monitor for infringing videos only after they are posted on the site, so there is an inevitable time lag between when a video is posted and the first reasonable time at which an owner can identify it and send a takedown notice.

43. In addition, YouTube is deliberately interfering with copyright owners' ability to find infringing videos even after they are added to YouTube's library. YouTube offers a feature that allows users to designate "friends" who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation. YouTube has also recently limited the search function so that it identifies no more than 1,000 video clips for any given search. Thus, for example, if there are several thousand infringing clips from the "South Park" series on YouTube, the limitations YouTube has placed on the search function may prevent Plaintiffs from identifying all of the infringing clips. In that case, even if Plaintiffs send takedown notices for the video clips they have been able to identify, and even if YouTube responds to the notices by removing those videos, many more infringing videos from the South Park series will still be available for viewing on YouTube. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners. Moreover, YouTube still makes the hidden infringing videos available for viewing through YouTube features like the embed, share, and friends functions. For example, many users are sharing full-length copies of copyrighted works and stating plainly

16

44. YouTube's strategy also leaves Plaintiffs unable to meaningfully protect their rights in time-sensitive works, such as episodes of "The Daily Show" or "The Colbert Report" that appear on YouTube as soon as they air, or first-run movies like "An Inconvenient Truth" that appear in their entirety on YouTube before being distributed on home video, irreparably harming Plaintiffs' own markets for these works. In this and many other ways, YouTube deprives Plaintiffs of economic returns to which they are entitled under the copyright laws, thereby undermining the system of incentives that copyright provides for the creation and dissemination of new works.

45. YouTube's failure to take reasonable measures to prevent infringement of Plaintiffs' copyrights stands in stark contrast to the protection which YouTube offers for the content to which it has acquired licenses through various business partnerships with other copyright holders. YouTube's cofounder and chief executive Chad Hurley has publicly stated that YouTube will use filtering technology to identify and remove copyrighted works for companies that grant licenses with YouTube, but not to companies that decline to grant licenses on YouTube's terms. By limiting copyright protection to business partners who have agreed to grant it licenses, YouTube attempts to coerce copyright owners to grant it a license in order to receive the protection to which they are entitled under the copyright laws. Although Google CEO Eric Schmidt recently stated in a media interview that Google intends

17

CLAIMS FOR RELIEF

COUNT I
(Direct Copyright Infringement -- Public Performance)

46. Plaintiffs incorporate by reference paragraphs 1 - 45 as if set forth herein.

47. Defendants, without the permission or consent of Plaintiffs, and without authority, are publicly performing and purporting to authorize the public performance of Plaintiffs' registered copyrighted audiovisual works. Defendants cause these works to be publicly performed upon request by users. Defendants' conduct constitutes direct infringement of Plaintiffs' exclusive rights under the Copyright Act to publicly perform their copyrighted audiovisual works.

48. Defendants' acts of infringement have been willful, intentional, and purposeful, in disregard of and indifferent to the rights of Plaintiffs.

49. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election,

18

50. Plaintiffs are entitled to their costs, including reasonable attorneys' fees, pursuant to 17 U.S.C. § 505.

51. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

COUNT II
(Direct Copyright Infringement -- Public Display)

52. Plaintiffs incorporate by reference paragraphs 1 - 51 as if set forth herein.

53. Defendants, without the permission or consent of Plaintiffs, and without authority, are publicly displaying and purporting to authorize the public display of Plaintiffs' registered copyrighted audiovisual works. Defendants cause these works to be publicly displayed by showing individual images of infringing video clips in response to searches for videos on YouTube. Defendants' conduct constitutes direct infringement of Plaintiffs' exclusive rights under the Copyright Act to publicly display their copyrighted audiovisual works.

54. Defendants' acts of infringement have been willful, intentional, and purposeful, in disregard of and indifferent to the rights of Plaintiffs.

55. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum

19

56. Plaintiffs are entitled to their costs, including reasonable attorneys' fees, pursuant to 17 U.S.C. § 505.

57. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

COUNT III
(Direct Copyright Infringement -- Reproduction)

58. Plaintiffs incorporate by reference paragraphs 1 - 57 as if set forth herein.

59. Defendants, without authority, are making, causing to be made, and purporting to authorize the making of unauthorized copies of Plaintiffs' registered copyrighted audiovisual works. Defendants' conduct constitutes direct infringement of Plaintiffs' exclusive right under the Copyright Act to reproduce their copyrighted works.

60. Defendants' acts of infringement have been willful, intentional, and purposeful, in disregard of and indifferent to the rights of Plaintiffs.

61. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to 17 U.S.C. § 504(b), Plaintiffs shall be entitled to their actual damages plus Defendants' profits from infringement, as will be proven at trial.

20

63. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

COUNT IV
(Inducement of Copyright Infringement)

64. Plaintiffs incorporates by reference paragraphs 1 - 63 as if set forth herein.

65. YouTube users have infringed and are infringing Plaintiffs' rights in their registered copyrighted audiovisual works by, inter alia, uploading infringing copies of Plaintiffs' copyrighted works onto YouTube's website and publicly performing or displaying or purporting to authorize the public performance or display of such infringing videos, all without authorization. YouTube users are therefore directly infringing Plaintiffs' exclusive rights of reproduction, public performance, and public display under 17 U.S.C. § § 106(1), (4) and (5).

66. Defendants are liable under the Copyright Act for inducing the infringing acts of YouTube users. Defendants operate the YouTube website service with the object of promoting its use to infringe Plaintiffs' copyrights and, by their clear expression and other affirmative steps, Defendants are unlawfully fostering copyright infringement by YouTube users.

21

68. Defendants' acts of infringement have been willful, intentional, and purposeful, in disregard of and indifferent to the rights of Plaintiffs.

69. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to 17 U.S.C. § 504(b), Plaintiffs shall be entitled to their actual damages plus Defendants' profits from infringement, as will be proven at trial.

70. Plaintiffs are entitled to their costs, including reasonable attorneys' fees, pursuant to 17 U.S.C. § 505.

71. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

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COUNT V
(Contributory Copyright Infringement)

72. Plaintiffs incorporate by reference paragraphs 1 - 71 as if set forth herein.

73. YouTube users have infringed and are infringing Plaintiffs' rights in their registered copyrighted audiovisual works by, inter alia, uploading infringing copies of Plaintiffs' copyrighted works onto YouTube's website and publicly performing or displaying or purporting to authorize the public performance or display of such infringing videos, all without authorization. YouTube users are therefore directly infringing Plaintiffs' exclusive rights of reproduction, public performance, and public display under 17 U.S.C. § § 106(1), (4) and (5).

74. Defendants are liable as contributory copyright infringers for the infringing acts of YouTube users. Defendants enable, induce, facilitate, and materially contribute to each act of infringement by YouTube users.

75. Defendants have actual and constructive knowledge that YouTube users are employing the YouTube website to copy, publicly perform, and publicly display Plaintiffs' copyrighted works. Plaintiffs' television shows and motion pictures are well known and recognizable, and even a cursory review of the YouTube website reveals numerous infringing videos of Plaintiffs' television shows, motion pictures, and other audiovisual works.

76. Acting with this actual and constructive knowledge, Defendants enable, facilitate, and materially contribute to YouTube users' copyright infringement, which could not occur without Defendants' enablement.

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78. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to 17 U.S.C. § 504(b), Plaintiffs shall be entitled to their actual damages plus Defendants' profits from infringement, as will be proven at trial.

79. Plaintiffs are entitled to their costs, including reasonable attorneys' fees, pursuant to 17 U.S.C. § 505.

80. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

COUNT VI
(Vicarious Copyright Infringement)

81. Plaintiffs incorporate by reference paragraphs 1 - 80 as if set forth herein.

82. YouTube users have infringed and are infringing Plaintiffs' rights in their registered copyrighted audiovisual works by, inter alia, uploading infringing copies of Plaintiffs' copyrighted works onto YouTube's website and publicly performing or displaying or purporting to authorize the public performance or display of such infringing videos, all without authorization. YouTube users are therefore directly infringing Plaintiffs' exclusive

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83. Defendants are vicariously liable for the infringing acts of YouTube users. Defendants have both the right and the ability to supervise YouTube users' infringing conduct, and to prevent YouTube users from infringing Plaintiffs' copyrighted audiovisual works.

84. Upon information and belief, YouTube currently engages in practices to enforce content restrictions and protect the copyrighted works of its business partners, but withholds these same protections for the copyrights of persons, including Plaintiffs, who have not granted licenses to YouTube.

85. YouTube significantly and directly benefits from the widespread infringement by its users. The availability of a vast collection of infringing copyrighted works on the YouTube site, including Plaintiffs' most popular works, acts as a substantial draw, attracting users to the website and increasing the amount of time they spend there once they visit. Defendants derive substantial advertising revenue tied directly to the volume of traffic they are able to attract to the YouTube site.

86. Defendants' acts of infringement have been willful, intentional, and purposeful, in disregard of and indifferent to the rights of Plaintiffs.

87. As a direct and proximate result of Defendants' infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to the maximum statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to 17 U.S.C. § 504(b), Plaintiffs shall be entitled to their actual damages plus Defendants' profits from infringement, as will be proven at trial.

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89. Defendants' conduct is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs' copyrights.

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

1. For a declaration that Defendants' YouTube service willfully infringes Plaintiffs' copyrights both directly and secondarily.

2. For a permanent injunction requiring that Defendants and their agents, servants, employees, officers, attorneys, successors, licensees, partners, and assigns, and all persons acting in concert or participation with each or any of them, cease directly or indirectly infringing, or causing, enabling, facilitating, encouraging, promoting and inducing or participating in the infringement of, any of Plaintiffs' respective copyrights or exclusive rights protected by the Copyright Act, whether now in existence or hereafter created.

3. For statutory damages pursuant to 17 U.S.C. § 504(c). Alternatively, at Plaintiffs' election, pursuant to 17 U.S.C. § 504(b), for actual damages plus Defendants' profits from infringement, as will be proven at trial.

4. For Plaintiffs' costs, including reasonable attorneys' fees, pursuant to 17 U.S.C. § 505.

5. For pre- and post-judgment interest according to law.

6. For such other and further relief as the Court may deem just and proper.

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_________________________
Donald B. Verrilli, Jr. (No. DV-2252)
William M. Hohengarten (No. WH-5233)
Amy L. Tenney
Scott B. Wilkens
Luke C. Platzer
Sharmila Sohoni
JENNER & BLOCK LLP
[address, phone, fax]

Attorneys for Plaintiffs

March 13, 2007

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VIACOM INTERNATIONAL INC.,

_____________________________

COMEDY PARTNERS,
COUNTRY MUSIC TELEVISION, INC.,
PARAMOUNT PICTURES CORPORATION,
And BLACK ENTERTAINMENT
TELEVISION LLC,

Plaintiffs

v.

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

Defendants.

_______________________

ECF Case

Civil Action No. 1:07-cv-02103 (LLS)(FM)

DEFENDANTS' ANSWER AND
DEMAND FOR JURY TRIAL

_____________________

Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the internet as an important new form of communication. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression. Google and YouTuve respect the importance of intellectual property rights, and not only comply with their safe harbor oblications under the DMCA, but go well above and beyond what the law requires.

Defendants YouTube, Inc., YouTube, LLC and Google Inc. (collectively, "Defendants"), by their undersigned attorneys, hereby answer Plaintifs' Viacom International Inc., Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black

INTRODUCTION

1. Defendants admit that the Internet has had a significant impact on the way in which Americans inform and entertain themselves. Defendants are without information sufficient to form a belief as to the remaining allegations of paragraph 1 of the Complaint, in part because such allegations are not simple, concise and direct averments as required by Federal Rule of Civil Precedure 8(e), and on that basis Defendants deny such allegations.

2. Defendants deny the allegations of paragraph 2 of the Complaint.

3. Defendants admit that the website located at www.youtube.com is a forum for users to share their own original "user generated" video content. Defendants are without sufficient knowledge or information to confirm that Dow Jones reported the information averred in paragraph 3 of the Complaint, and therefore deny it. Defendants deny the remaining allegations in paragraph 3 of the Complaint.

4. Defendants deny the allegations of paragraph 4 of the Complaint.

5. Defendants deny the allegations of paragraph 5 of the Complaint.

6. Defendants deny the allegations of paragraph 6 of the Complaint.

7. Defendants deny the allegations of paragraph 7 of the Complaint.

8. Defendants deny the allegations of paragraph 8 of the Complaint.

9. Defendants admit that Google purchased YouTube Inc. for $1.65 billion. Denfendants deny the remaining allegations of paragraph 9 of the Complaint.

10. Defendants admit that the Plaintiffs seek a declaration of willful infringement, a permanent injunction and damages, but deny that Plaintiffs are entitled to any such relief. Defendants deny the remaining allegations of paragraph 10 of the Complaint.

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JURISDICTION AND VENUE

11. Defendants admit that the Complaint purports to state a claim for damages and injunctive relief for copyright infringement, but deny that Plaintiffs are entitled to any such relief and otherwise deny the allegations of paragraph 11 of the Complaint.

12. Defendants admit that this Court has original subject matter jurisdiction over this matter.

13. Defendants admit this Court has personal jurisdiction over them for purposes of this action. Defendants admit that Google maintains an office and employs personnel in New York and this District, and is thus physically present in the state. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations that Plaintiffs Viacom International Inc. and Comedy Partners have their principal places of business in New York and in this District, and therefore deny them. Defendants deny the remaining allegations of paragraph 13 of the Complaint.

14. Defendants admit that the venue is proper in this District.

PLAINTIFFS AND PLAINTIFFS' BUSINESSES

15. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 15 of the Complaint, and therefore deny them.

16. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 16 of the Complaint, and therefore deny them.

17. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 17 of the Complaint, and therefore deny them.

18. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 18 of the Complaint, and therefore deny them.

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20. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 20 of the Complaint, and therefore deny them.

21. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 21 of the Complaint, and therefore deny them.

22. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 22 of the Complaint, and therefore deny them.

23. Defendants deny the allegations in paragraph 23 of the Complaint.

DEFENDANTS

24. Defendants deny the allegations of paragraph 24 of the Complaint.

25. Defendants admit that YouTube LLC is a Delaware limited liability compDny with its principal place of business in San Bruno, California. Defendants otherwise deny the allegations of Paragraph 25.

26. Defendants admit that YouTube LLC is a wholly-owned subsidiary of Google Inc. ("Google"), and that Google Inc. is a Delaware corporation with it principal place of business in Mountain View, California. Defendants further admit that Google has a place of business in the State of New York, in this judicial district, and that Google acquired YouTube, Inc. for $1.65 billion in a transaction announced on October 9, 2006 and closed on November 13, 2006.

27. Defendants admit that YouTube LLC and Google today operate an online service called "YouTube" which can be accessed at the website www.youtube.com, and that the service is popular. Defendants deny the remaining allegations in paragraph 27 of the Complaint.

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NATURE OF THE ACTION

29. Paragraph 29 of the Complaint states legal conclusions as to which no responsive pleading is required. To the extent a response is required, Defendants deny the allegations of paragraph 29 of the Complaint.

30. Defendants admit that paragraph 30 of the Complaint quotes small excerpts from a YouTube, Inc. Press Release dated December 15, 2005. Defendants admit that YouTube encourages users to upload video clips to the service that the users have the right to upload, and that clips uploaded to the service are typically available for viewing free of charge by members of the public who have Internet access. Defendants deny the remaining allegations in paragraph 30 of the Complaint.

31. Defendants admit that when a user uploads a video to the YouTube service, the video is copied into a software format, stored on YouTube's computers, and made available for viewing through the YouTube service. Defendants admit that users of the YouTube service can search for videos stored on the service by entering a search query, and that they will receive a list of thumbnails -- single frame images of video clips stored on the service -- identified in response to that search query. Defendants admit that the purpose of these thumbnails is to help users find what they are searching for. Defendants deny the remaining allegations of paragraph 31 of the Complaint.

33. Defendants admit that a YouTube user can send another person an email message containing a link to a video clip stored on the YouTube service, and that if the recipient of the email message clicks on the link the recipient will be able to view the video clip on the YouTube service. Defendants deny the remaining allegations of paragraph 33 of the Complaint.

34. Defendants deny the allegations of paragraph 34 of the Complaint.

35. Defendants deny the allegations of paragraph 35 of the Complaint.

36. Defendants deny the allegations of paragraph 36 of the Complaint.

37. Defendants deny the allegations of paragraph 37 of the Complaint.

38. Defendants admit that YouTube users must agree to Terms of Use prior to posting video clips to YouTube's service. Defendants admit that the Terms of Use contain certain content-based restrictions on the types of videos users may upload and store on the service, and that YouTube reserves the right to remove from the service material uploaded in violation of YouTube's Terms of Use. Defendants admit that paragraph 38 quotes an excerpt from YouTube's Terms of Use. Defendants deny the remaining allegations in paragraph 38 of the Complaint.

39. Defendants admit that YouTube has sent letters to third parties in which it accused them of enabling users to make unauthorized use of the YouTube service. Defendants deny the remaining allegations of paragraph 39 of the Complaint.

40. Defendants admit that the YouTube service provides copyright protection tools that help copyright owners find clips that users have uploaded that the copyright holders may contend infringe their copyrights. Defendants further admit that these tools can prevent the reloading of copies of the same video clip after it has been removed from YouTube's service

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41. Defendants deny the allegations of paragraph 41 of the Complaint.

42. Defendants deny the allegations of paragraph 42 of the Complaint.

43. Defendants admit that the YouTube service enables users to limit the audience of persons able to see video clips they upload to the service. Defendants admit that following Google's acquisition of the YouTube service, the user search function on the service now identifies no more than 1,000 video clips for any given search by a user. Defendants deny the remaining allegations of paragraph 43 of the Complaint.

44. Defendants deny the allegations of paragraph 44 of the Complaint.

45. Defendants admit that Google CEO Eric Schmidt stated in a media interview that Google would offer anti-piracy technologies. Defendants deny the remaining allegations of paragraph 45 of the Complaint.

ANSWER TO CLAIMS FOR RELIEF
COUNT I

46. Defendants incorporate by reference their responses to paragraphs 1-45 as if set forth herein.

47. Defendants deny the allegations of paragraph 47 of the Complaint.

48. Defendants deny the allegations of paragraph 48 of the Complaint.

49. Defendants deny the allegations of paragraph 49 of the Complaint.

50. Defendants deny the allegations of paragraph 50 of the Complaint.

51. Defendants deny the allegations of paragraph 51 of the Complaint.

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COUNT II

52. Defendants incorporate by reference their responses to paragraphs 1-51 as if set forth herein.

53. Defendants deny the allegations of paragraph 53 of the Complaint.

54. Defendants deny the allegations of paragraph 54 of the Complaint.

55. Defendants deny the allegations of paragraph 55 of the Complaint.

56. Defendants deny the allegations of paragraph 56 of the Complaint.

57. Defendants deny the allegations of paragraph 57 of the Complaint.

COUNT III

58. Defendants incorporate by reference their responses to paragraphs 1-57 as if set forth herein.

59. Defendants deny the allegations of paragraph 59 of the Complaint.

60. Defendants deny the allegations of paragraph 60 of the Complaint.

61. Defendants deny the allegations of paragraph 61 of the Complaint.

62. Defendants deny the allegations of paragraph 62 of the Complaint.

63. Defendants deny the allegations of paragraph 63 of the Complaint.

COUNT IV

64. Defendants incorporate by reference their responses to paragraphs 1-63 as if set forth herein.

65. Defendants deny the allegations of paragraph 65 of the Complaint.

66. Defendants deny the allegations of paragraph 66 of the Complaint.

67. Defendants deny the allegations of paragraph 67 of the Complaint.

68. Defendants deny the allegations of paragraph 68 of the Complaint.

69. Defendants deny the allegations of paragraph 69 of the Complaint.

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71. Defendants deny the allegations of paragraph 71 of the Complaint.

COUNT V

72. Defendants incorporate by reference their responses to paragraphs 1-71 as if set forth herein.

73. Defendants deny the allegations of paragraph 73 of the Complaint.

74. Defendants deny the allegations of paragraph 74 of the Complaint.

75. Defendants deny the allegations of paragraph 75 of the Complaint.

76. Defendants deny the allegations of paragraph 76 of the Complaint.

77. Defendants deny the allegations of paragraph 77 of the Complaint.

78. Defendants deny the allegations of paragraph 78 of the Complaint.

79. Defendants deny the allegations of paragraph 79 of the Complaint.

80. Defendants deny the allegations of paragraph 80 of the Complaint.

COUNT VI

81. Defendants incorporate by reference their responses to paragraphs 1-80 as if set forth herein.

82. Defendants deny the allegations of paragraph 82 of the Complaint.

83. Defendants deny the allegations of paragraph 83 of the Complaint.

84. Defendants deny the allegations of paragraph 84 of the Complaint.

85. Defendants deny the allegations of paragraph 85 of the Complaint.

86. Defendants deny the allegations of paragraph 86 of the Complaint.

87. Defendants deny the allegations of paragraph 87 of the Complaint.

88. Defendants deny the allegations of paragraph 88 of the Complaint.

89. Defendants deny the allegations of paragraph 89 of the Complaint.

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DEFENSES

FIRST DEFENSE (DMCA SAFE HARBORS)

Plaintiffs' claims are barred in whole or in part because Defendants are protected by one or more ofthe DMCA Safe Harbors in 17 U.S.C. § 512.

SECOND DEFENSE (LICENSE)

Plaintiffs' claims are barred in whole or in part by licenses, express and implied, granted or authorized to be granted by Plaintiffs.

THIRD DEFENSE (FAIR USE)

Plaintiffs' claims are barred in whole or in part by the doctrine of fair use.

FOURTH DEFENSE (FAILURE TO MITIGATE)

Plaintiffs' claims are barred in whole or in part because Plaintiffs have failed to mitigate their damages, if any.

FIFTH DEFENSE (FAILURE TO STATE A CLAIM)

Plaintiffs' allegations fail to state a claim for copyright infringement of any work not listed on Exhibit A of the Complaint.

SIXTH DEFENSE (INNOCENT INTENT)

Plaintiffs' damages, if any, are limited by Defendants' innocent intent.

SEVENTH DEFENSE (COPYRIGHT MISUSE)

Plaintiffs' claims are barred in whole or in part by the doctrine of copyright misuse.

EIGHTH DEFENSE (ESTOPPEL)

Plaintiffs' claims are barred in whole or in part by the doctrine of estoppel.

NINTH DEFENSE (WAIVER)

Plaintiffs' claims are barred in whole or in part by the doctrine of waiver.

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TENTH DEFENSE (UNCLEAN HANDS)

Plaintiffs' claims are barred in whole or in part by the doctrine of unclean hands.

ELEVENTH DEFENSE(LACHES)

Plaintiffs' claims are barred in whole or in part by the doctrine of laches.

TWELFTH DEFENSE (SUBSTANTIAL NON-INFRINGING USE)

Plaintiffs' claims are barred in whole or in part based on the doctrine of substantial non-infringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine's inapplicability.

RELIEF REQUESTED

WHEREFORE, Defendants respectfully request the following relief:

1. A judgment in favor of Defendants denying Plaintiffs all relief requested in their Complaint in this action and dismissing Plaintiffs' Complaint with prejudice;

2. That Defendants be awarded their costs of suit, including reasonable attorney's fees; and;

3. That the Court award Defendants such other and further relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

In accordance with Fed. R. Civ. P. 38(b), Defendants demand a trial by jury on all issues so triable.

Date: April 30, 2007

Respectfully submitted,

s/__________________
Jonathan M. Jacobson (JJ-0605)
Tonia Ouellette Klausner (TOK-8279)
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
[address, phone]

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Philip S. Beck*
Mark S. Ouweleen*
Shayna S. Cook*
Bartlit Beck Herman Palenchar & Scott LLP
[address, phone]

(*pro hac vice admission to be requested)

Attorneys for Defendants YouTube, Inc.,
YouTube, LLC and Google Inc.

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