Example 13.3

Takeaway point 13.3: Introductions often work best when they frontload persuasive facts.

The following Introduction lacks the marvelous brevity of the previous two examples, but it reflects a stellar illustration of how to use facts and policy to motivate readers.

Source: Viacom’s brief in Viacom v. YouTube, 676 F.3d 19 (2d Cir. 2012).

The Introduction’s theme is that YouTube exists to infringe copyrighted content.

This quote — a nightmare for YouTube — reflects a legal conclusion that content was infringing. We do not know (i) who said this; (ii) whether YouTube did, in fact, remove this content from its website; (iii) where within YouTube this content appeared; (iv) whether this “stuff” even belonged to Viacom; or (v) whether YouTube subsequently licensed this content. This quote, from YouTube’s earliest days, nevertheless pummels YouTube; even if Viacom overreached, it is much easier to use a biting quote to attack an adversary than it is to dispel the impression that such a harmful quote creates. And Viacom’s strategy of using damning quotes in its Introduction reflects savvy advocacy.

Yet again, the brief manages to show YouTube’s (alleged) moral failings by focusing on a potentially benign comment from one of Youtube’s documents. After all, almost every Internet business wants to attract traffic. This approach reflects the power of post hoc ergo propter hoc (as discussed in Appendix A): merely placing two facts next to each other suggests that the one caused the other.

Viacom below. But rather than acting defensively, it emphasizes some of the trial judge’s conclusions.

This phrase is at the outer limit of how sharply lawyers may criticize judges.

This line — combined with the term “liability” in the first sentence — makes the district court’s conclusions seem outlandish. The remainder of this sentence is the one clunker in this Introduction. It is long and hard to follow. But that’s because Viacom wanted to keep readers from absorbing exactly what the district court decided.

The brief now makes one of its shrewdest moves, lumping YouTube in with the most-aggressive copyright pirates without even assessing whether YouTube satisfied the test laid out by the district court (i.e., whether YouTube removed videos when a copyright holder alleged infringement). This Introduction explains what the case is about, pummels YouTube, motivates readers to remedy the injury to copyright owners, and reflects a model of how to try to win a case in the opening pages.

Yet again, Viacom uses a snippet of a document brilliantly. The word “welcomed” singlehandedly answers the legal issue as Viacom see its, which is whether YouTube “actively participated in and profited from” infringement. And the Second Circuit agreed, remanding the case so that the trial court could assess whether YouTube remained willfully blind to the infringement on its site.