Haytham: I agree with your edits. Note that I corrected one typo in the yellow highlighted paragraph. I am still trying to figure out the difference between an âexclusiveâ and a ânon-exclusiveâ license, but suspect that non-exclusive means the license attaches to anyone who uses the service as opposed to just one individual. (I have been doing some additional reading. I just put âYouTubeâ into a search in Fastcase. They get sued a lot. ) However, I donât know that impleading YouTube is necessary because you have the service agreement and there is no allegation that the song was used by anyone else on YouTube, rather, that the YouTube post by the composer itself was used. Maybe we just need a witness from YouTube to explain their agreement?? Mary Jo Provenzano Paralegal PUCKETT & FARAJ, PC 1800 Diagonal Road Suite 210 Alexandria, VA 22314 703-706-0442 Phone 202-280-1039 Fax DC × CA × MI × VA twitter.com/puckettfaraj Practice is limited to matters and proceedings before special courts - federal courts - agencies. Confidentiality / Privilege Notice: This transmission, including attachments, is intended solely for the use of the designated recipient(s). This transmission may contain information that is confidential and/or privileged or otherwise protected from disclosure. The use or disclosure of the information contained in this transmission for any purpose other than that intended by its transmittal is strictly prohibited. If you are not an intended recipient of this transmission, please immediately destroy all copies received and notify the sender. From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Hi Mary Jo, Check out the verbatim language from Youtubeâs terms of service agreement. Specifically, see highlighted portion. 6. Your Content and Conduct A. As a YouTube account holder you may submit Content to the Service, including videos and user comments. You understand that YouTube does not guarantee any confidentiality with respect to any Content you submit. B. You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service. C. For clarity, you retain all of your ownership rights in your Content. However, by submitting Content 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 Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. D. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein. E. You further agree that you will not submit to the Service any Content or other material that is contrary to the YouTube Community Guidelines, currently found at http://www.youtube.com/t/community_guidelines, 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 Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with Content. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and YouTube will remove all Content if properly notified that such Content infringes on another's intellectual property rights. YouTube reserves the right to remove Content without prior notice. Based on the this, I do not believe Mr. Jandali has standing. If he does have standing, then I believe we need implead Youtube. I have modified the report. Please review and letâs discuss it in the morning. From: MaryJo Provenzano [mailto:maryjo1@puckettfaraj.com] Haytham: I highlighted in yellow the edits to the Rule 26 report. There were other affirmative defenses, but I do not believe they are based in statutory law. I am attaching a case indicating that implied licenses are part of a judicial doctrine. Also it appears that two of our defenses relate to the same USC section so I put them together. I am still looking to see if I can find any basis in statute other than Rule 12(b)(6) regarding there being no damage to Plaintiff. Mary Jo Provenzano Paralegal PUCKETT & FARAJ, PC 1800 Diagonal Road Suite 210 Alexandria, VA 22314 703-706-0442 Phone 202-280-1039 Fax DC × CA × MI × VA twitter.com/puckettfaraj Practice is limited to matters and proceedings before special courts - federal courts - agencies. Confidentiality / Privilege Notice: This transmission, including attachments, is intended solely for the use of the designated recipient(s). This transmission may contain information that is confidential and/or privileged or otherwise protected from disclosure. The use or disclosure of the information contained in this transmission for any purpose other than that intended by its transmittal is strictly prohibited. If you are not an intended recipient of this transmission, please immediately destroy all copies received and notify the sender. From: Haytham Faraj [mailto:haytham@puckettfaraj.com] I should have it to you today with our recommended additions and changes. Thank you. From: McNutt, Steve [mailto:Steven.McNutt@troutmansanders.com] Haytham: I write to follow up on the draft 26(f) report. It is due to be filed tomorrow. Please let us know if it is acceptable to the ADC. Regards,
From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Thanks. I'll review today and get back to you on it. Haytham Faraj Sent from my iPhone
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Jandali_ Draft Joint 26(f) Report 11-15-2011 hf edits.doc
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