Network-1 Technologies, Inc. v. Google, L.L.C.

LAW OFFICES

WILLIAMS & CONNOLLY we:

ANDREW V. TRASK

G20 MAINEAVENUESW rowan ane saeu cso

atrask@wc.com WASHINGTON, DC 20024

(202) 434-5000

WWW.WC.COM

September 30, 2022

VIA ECF

Hon. Paul G. Gardephe

USS. District Court, Southern District of New York

40 Foley Square, Room 2204

New York, NY 10007

Re: Network-1I Technologies, Inc. v. Google LLC, et al., Nos. 1:14-cv-2396-PGG-

SN & 1:14-cv-9558-PGG-SN (S.D.N.Y.)

Dear Judge Gardephe:

I write on behalf of Defendants Google LLC and YouTube, LLC (collectively, “Google’”’)

to request leave to file under seal Google’s Response to Plaintiff's Supplemental Brief Regarding

Google’s Motion for Summary Judgment. Google is not seeking to seal the brief in its entirety;

rather, it has applied targeted redactions to particular passages containing commercially sensitive

information that it submits ought to remain confidential notwithstanding the “presumption of

access” applicable to the filing. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20

(2d Cir. 2006); see id. at 120 (explaining that a court should “balance competing considerations”

when determining whether sealing is warranted, including “the privacy interests of those

resisting disclosure”). In accordance with Rule II.B of the Court’s Individual Rules, Google will

publicly file the brief with the proposed redactions and file under seal a copy of the unredacted

document with the redactions highlighted.

The redacted portions of the supplemental brief describe particular details relating to

techniques for structuring or searching data that Google keeps confidential in order to preserve

its competitive standing. In particular, the redacted passages contain descriptions by fact or

expert witnesses of proprietary algorithms or parameters used by Google in its Content ID

system that could not be ascertained without access to Google’s confidential source code or other

documentation that Google regards as commercially sensitive. This kind of confidential

“technical information” has been sealed under analogous circumstances because public

disclosure “could allow competitors an unfair advantage, and would thus be highly prejudicial.”

Kewazinga Corp. v. Microsoft Corp., 1:18-cv-4500-GHW, 2021 WL 1222122, at *7 (S.D.N.Y.

Mar. 31, 2021) (granting a request in a patent infringement litigation to seal certain “confidential

and proprietary data collection procedures, image processing procedures, specific hardware used

to perform these procedures, and confidential details about ... specific algorithms and the names

of specific variables and functions in [the defendant’s] source code”).

September 30, 2022

Page 2

Google’s Content ID system is the product of extensive research and development efforts

by teams of Google computer scientists and software engineers, and Google respectfully submits

that it is appropriate to redact descriptions of particular design choices or technical

implementations relating to the system. Releasing these kinds of confidential details could allow

competitors, copyright infringers, or others to benefit unfairly from Google’s substantial

investments in its proprietary methods for determining instances of reuse of video, audio, and

melody content. The proposed redactions are therefore necessary to avoid competitive harm.

See, e.g., Nixon v. Warner Commncn’s, Inc., 435 U.S. 589, 598 (1978) (observing that “the right

to inspect and copy judicial records 1s not absolute” and noting approvingly that courts have

sealed “business information that might harm a litigant’s competitive standing”); Louis Vuitton

Malletier S.A. v. Sunny Merchandise Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (approving

redactions to “judicial documents” that were “generally limited to specific business information

and strategies, which, if revealed, may provide valuable insights into a company’s current

business practices that a competitor would seek to exploit”).

Google’s proposed redactions are directed to details regarding Google’s Content ID

system that are confidential and commercially sensitive, and the parties’ legal theories and

arguments will remain publicly accessible. This targeted approach is consistent with the balance

that courts must strike in determining which materials merit sealing, including with respect to

summary judgment briefing in patent infringement cases. See, e.g., Kewazinga, 2021 WL

1222122, at *7 (describing “the countervailing privacy concerns [that] outweigh the public’s

need for public access” to a party’s “confidential technical information” submitted with a

summary judgment motion); BASF Plant Sci., LP v. Commonwealth Sci. & Indus. Research

Org., No. 2:17-cv-503-HCM, 2020 WL 973751, at *15—16 (E.D. Va. Feb. 7, 2020) (approving

redactions to “confidential commercial information” in materials submitted with motions for

summary judgment because, among other things, “the parties have filed detailed public versions,

which do not seek to completely seal their briefing, outlining in detail the legal and factual issues

raised by the motions”).

For the foregoing reasons, Google respectfully requests leave to file a redacted version

of its Response to Plaintiff's Supplemental Brief Regarding Google’s Motion for Summary

Judgment.

Sincerely,

/s/ Andrew V. Trask

Andrew V. Trask

MEMO ENDORSED: The application is granted. The Clerk of Court is directed to terminate the

motions pending at Dkt. No. 277 in 14 Civ. 2396 and Dkt. No. 213 in 14 Civ. 9558.

SO ORDERED.

oul 2 Ande

Paul G. Gardephe

United States District Judge