Viacom International, Inc. v. Youtube, Inc.

Filing 124

APPENDIX, on behalf of Appellant Black Entertainment Television, LLC, Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation and Viacom International, Inc., FILED. Service date 12/10/2010 by CM/ECF. [165096] [10-3270]

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M A RY A N N SL I M t e ch n i ca ll y , i t i s n ot u si ng o ur s o ng , b u t i t h as p ro du c e d a s o ng t o s o un d l i ke o ur s o n g. a l ik e ca se . Q. In t h e E -m a i l fr o m y ou t o S o t hi s is a s o u nd

S t ev e Le wi s an d A l an K a d in g, a t th e t op y o u s a y, " T h is i s wi th h ig h i m po r t an ce . " Yo u ar e r e qu es t i ng t h at

t h ey l oo k a t t he Y ou Tu b e c li p or t h e Y o uT u b e li n k . A n d y ou s ay , " I a m no t

c o nv i n ce d w e w ou l d w in t hi s o n e, b u t p l ea s e l et m e kn o w i f y o u wo u l d li k e CP M a st e r s to p ur su e th is a nd g e t a m u si c o lo gi s t i nv o l ve d w h ic h w e w ou l d h a ve t o pa y fo r. " D o y o u s ee t ha t? A. Q. I do . Wh y w e re y o u n ot c on vi n c e d

t h at y ou w o u ld w i n ? A. Be ca u s e I h a d he a r d th e s o ng

t h at t he y - - t he p ie ce o f mu s i c th e y u s ed i n th e co mm e r ci al . A nd t o me , i t

d i dn ' t s ou n d l ik e it w a s r em i n is ce n t of o u r s o ng . I t di d n 't s o u nd c l o se e n o u gh

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM to our song that it would be identified as a sound alike. personal opinion.
15:53:13

That was just my

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Q.

Why did you consider getting

a musicologist involved? A. Because that's the procedure If you

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in the music publishing world.

have a song that sounds -- t h a t is what
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you call a sound alike.

Or where you

think someone has taken a piece of your song and put it in their song, a musicologist is an expert that will come in and listen to both your song
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and the song that you think is infringing your copyright and will write a report to determine whether he thinks it is a take of your song or not.

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15:53:50

Q.

So the reason that Stage

Three was considering getting a musicologist involved, was that because it is difficult for a person without musical training to determine if this
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was infringing or not?

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM A. Yes. And also you would Otherwise,

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need an independent report.

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we could all be going after each other
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saying, I think your song sounds like my song. So you need to establish an

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independent report to backup your argument. Q.
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Did you end up hiring a

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musicologist to analyze this situation? A. they did. I can't remember. I think

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I think that CP Masters did

in the end, but I can't remember. There is more correspondence on this. But once I handed it over to Steve, he took it over because it is not my area. Q. Do you remember if stage

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Three took any action against C1000? A. If my memory is correct, we

did not because we decided it wasn't close enough. Q. Did stage Three send a

Takedown Notice to YouTube for this clip? A. No.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM
Q.

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Was that also because you

didn't believe that it was close enough?
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A.

Well, we hadn't established

that it was our song, it was our copyright, in order to send a Takedown Notice. until we could establish by

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the musicologist that this song was a
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sound alike, we have no right to send a Takedown Notice.
Q.

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Are you aware of any other

works in suit in this case that you have had issue with sound alikes?
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A.
Q.

with sound alikes? Yes. No, I can't recall. Any issues with Le Grange

A.
Q.

with regard to sound alikes?
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A. no.
Q.

Not out of the UK office,

I am'showing you an exhibit

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that we will have marked as Stage Three UK Exhibit 19, Bates number ST00083895 to '908.

DAVID FELDMAN WORLDWIDE, INC, 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM (Whereupon, the aforementioned documents, ST00083895 to '908, were marked as Stage Three UK Exhibit 19 for identification as of this date by the Reporter.) Q. Have you had a chance to

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look this over?
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A.

Sorry, I am reading it.

Do

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you want me to read the whole thing? Q. it. No, you don't have to read

We will walk over it. A. Yes, I have glanced at the

first page. Q. This is a series of E-mails

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relating to a request by an MIT professor named Michael Snively to use a 20-second clip of the song, "I Am

Glad I Hitched My Apple Wagon To Your Star" in a video of one of his lectures; is that correct? A. Q. That's correct. Do you recognize this series

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of E-mails?

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM A.
Q.

I do. And you respond, "Wow, this

is the best ad ever. "
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Do you see that? A.
Q.

I do. Did you view the YouTube

link that he had provided to you? A.
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Yes, I did. And did you want to propose

Q.

to McDonald's they recreate this ad using the song, Rock On? A. Yes, I would have liked to

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have done that.
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Q.

Did you present the idea to

McDonald's? A.
Q.

No, I did not. What was -- d i d your idea

ever come to fruition?
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A.
Q.

No, it did not. Why not? This was -- t h e reason for

A.

this correspondence was when we -- w a s David Essex's manager informed us in a
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meeting, he said, you won't know this

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM because it was before you had the rights to the song, but Rock On was used in a McDonald's ad and it had a
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James Dean look alike.

And he was

saying to us, you know, wouldn't it be great if McDonald's wanted to re-license that ad. And clearly, as we weren't
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the owners of that song at the time, we had no knowledge of it, and I didn't really know what he was talking about. So as I was informed that the commercial was in Australia, I

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contacted our Australian sub-publisher and asked him if he had any recollection of Rock On being used in a McDonald's ad. And this was then

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followed by this correspondence.
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And would I go to an advertising agency or a brand and advise them how to advertise their product, no, I wouldn't.
Q.

So then the last sentence of

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your E-mail says, "Thank you so much

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM for finding this so quickly - d o n ' t you just love YouTube?" Do you see that?
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A.
Q.

I do. What did you love about

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YouTube? A. service.
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YouTube is a -- i t ' s a good It is a great, you know It is a great site.

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what you call it?
Q.

And why do you feel like it

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is a great site? A. Because it's -- i t shows You know. He could

interesting clips.
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clearly find something that I had no knowledge of, wouldn't know how to get ahold of or anything, and he was able to find it.
Q.

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And were there any other

reasons you thought it was a great site? A. YouTube. I don't have a problem with I think YouTube -- e v e r y o n e It's not

loves YouTube, don't they?

that you don't love YouTube, it is just

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MARYANN SLIM you have to protect your copyrights and make sure they are being used illegally
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legally and not being

infringed.
Q.

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Do you know whether the

YouTube video that Mr. Gough sent was authorized to be on the site? A.
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I don't know because the

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license for that commercial wouldn't have been issued by our company.
Q.

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I am showing you a document

that we will have marked as Stage Three UK Exhibit 24, Bates number ST00086367 to '368. (Whereupon, the aforementioned documents, ST00086367 to '678, were marked as Stage Three UK Exhibit 24 for identification as of this date by the Reporter.)
Q.

This is an E-mail chain

between yourself and Dave Wibberley with the subject, "Ford Stuff." Do you see that?

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Schapiro Exhibit 100

A-711
From: Sent: To: Subject: Attach:

Joanne Price <[e-mail]> Monday, October 5, 2009 6:10 PM oIi ver Weingarten <OW [e-mail]> Deed of Licence - Aston Villa Premier Goals 2007-2010.pdf

Dear Oliver, As requested, I set out below responses to Richard Scudamore's letter to the Club dated 7 September 2009 and your additional queries dated 22 September 2009.
Letter dated 7 September 2009

1. 2. 3.

The Club has its own dedicated YouTube channel: http://www.youtube.com/user/avtvextra. No such documents exist. The Club had a prior contractual relationship with PremierGoals, but this was terminated in April 2008 due to PremierGoals having breached certain requirements of the Deed of Licence. A copy of the expired contract is attached.

Your email dated 22 September 2009

(a) I have already provided you with copies of our International Club TV Block contracts. (b) No such documents exist. The Club has not entered into any agreements in relation to International Club Mobile Contracts. (c) No such documents exist. The Club does not make home video devices available to the United States.
YouTube Channel

Following your correspondence, the Club has carried out an internal review of each of the videos on its YouTube channel. We appreciate that while the Deed of Licence does not prevent the Club from operating a YouTube channel, it does restrict the extent to which certain content (namely Footage, Archive Footage, Sound Materials and Stills, as defined in the Deed of Licence) may be included in such a website. The Club has over 70 videos on the website, the vast majority of which we believe to be fully in accordance with the terms of the Deed of Licence (being "behind-the-scenes" or non-PL footage). We have discovered, however, that there were 7 videos which did not fully comply with the Deed of Licence. These are as follows:h t t p : / / w w w . y o u t u b e . c o m / w a t c h ? v = i o f r x - H N g E - Still photos and commentary from the Birmingham match 13/09/09. (viewers estimate: 1,100) http://www.youtube.com/watch?v=wS roSNOhB4 - Still photos and commentary from the Liverpool match 24/08/09. (viewers estimate: 1,500) http://www.youtube.com/watch?v=th7X2IdHuQs - Still photos and commentary from the Blackburn match 07/02/09. (viewers estimate: 600) http://www.youtube.com/watch?v=XSNXxVI3ejQ - Still photos and commentary from the Bolton match 13/12/08. (viewers estimate: 600) http://www.youtube.com/watch?v=yAHGTzS90xM - Still photos and Commentary from the Arsenal match 15/11/08. (viewers estimate: 3,100)

Highly Confidential

PLC00000597

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h t t p : / / w w w . y o u t u b e . c o m ! w a t c h ? v = B x g B r z A K 6 g U - M a t c h footage (2 x 5 seconds) (viewers estimate: 500) http://www.youtube.com!watch?v=IM8N81yXLAU - M a t c h footage (1 x 5 seconds) (viewers estimate: 77) All of these videos have now been taken down from the website and are no longer accessible. I have arranged to meet with our media and marketing team to discuss the issues raised by our internal review. I have also explained the terms of the Deed of Licence to the relevant Club personnel in detail to ensure that all content placed onto Club websites in future will comply with the terms of the Deed of Licence. In particular, other than on the Club's official website (www.avfc.co.uk) which is the UK Club Website and International Club Website for the purposes of the Deed of Licence, going forward the Club will ensure that no Footage, Archive Footage or Sound Materials (as defined in the Deed of Licence) will be featured on any Club websites and no Stills or Sequences of Stills (as defined in the Deed of Licence) will be featured on any Club websites within seven days starting from midnight on the day of the relevant Club Match. Please give me a call to discuss when you have a moment.
Joanne Price In-House Lawyer

Aston Villa Football Club Villa Park I Birmingham I B66HE Tel: [phone] x293 Mob: [phone] Fax: [phone] email: [e-mail] W: www.avfc.co.uk

Aston Villa FC Limited, Aston Villa Football Club Limited and Aston Villa Limited (together "Aston Villa") - Registered Office address Villa Park, Birmingham B6 6HE. Company registration numbers 2502822, 3375789 and 46572 respectively. The information contained in this e-mail and any attachments is intended for the addressee only and may contain legally privileged or confidential information. If you are not the intended recipient you must not use, disclose, copy, distribute, alter, or take any action in reliance on the information and Aston Villa will not accept liability for any loss or damage howsoever arising, directly or indirectly in reliance on it and gives no warranty or representation as to its accuracy or reliability. If you are not the addressee, please notify us immediately on 0121327 2299 and delete the material from your computer and destroy any copies. Aston Villa reserves the right to monitor and record incoming and outgoing email messages for the purposes of investigating or detecting unauthorised use of its system and ensuring its effective operation. Aston Villa will not accept liability for any loss or damage as a result of any virus being passed on. Any opinions expressed in this email or any attachment are those of the individual sender not Aston Villa, except where the message states otherwise and the sender is authorised to state them to be the views of Aston Villa.

Highly Confidential

PLC00000598

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Schapiro Exhibit 101

From: Sent: To: Cc: Subject:

Oliver Weingarten <[e-mail]> Friday, October 2, 20095:51 AM Casimir Knight <[e-mail]> Alan Shaw <[e-mail]>; Amanda Dungate <[e-mail]>; Virginia Leather <[e-mail]> RE: You Tube documentation response

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Cas Thanks for this. Will get back in touch if need be. Amanda, is there any chance you could send scanned copies of the relevant Agreements please? Best, Oliver From: Casimir Knight [mailto:[e-mail]] Sent: 01 October 2009 16:41 To: Oliver Weingarten Cc: Alan Shaw; Amanda Dungate Subject: You Tube documentation response Dear Oliver, I am writing with reference to your recent correspondence requesting information and documentation in respect of the Premier League's litigation against YouTube and its parent company Google. 1. Club's use of You tube

Chelsea Digital Media set up a club branded YouTube channel in February 2007. The primary purpose of this channel is to promote the club and Chelsea TV within this environment. As per the Premier Leaguer regulations, none of the video/media submitted to our Youtube channel contains any match footage whatsoever. While we accepted YouTube's standard terms and conditions via their website when setting up this channel, there is no other relevant documentation relating this that we have to send on to you. 2. Club's belief about the effect on their businesses of the availability of football related videos on Youtube

We believe the availability of football related content via Youtube does not have a material impact on the club's activity nor the ability for the club to exploit its media rights. 3. Documents reflecting the club's making available Premier League footage by way of licensing

Chelsea Digital Media has not licensed the use of any match footage to any website, aside from our official international club websites which are a Chinese language website operated in partnership with Premier Goals and a Russian language website - o p e r a t e d in partnership with the Chelsea Fan Club (Russia). CDM have licensed the club's international (ex UK and Eire) TV rights as follows1. North America - Setanta US (until June 2010) 2. All other international territories - IMG Media (until June 2013) We also have an agreement with the Gifted Group, to whom we have licensed our DVD rights. Relevant documentation relating to the international TV and DVD rights has been posted to you separately by Amanda using special delivery. I hope this adequately covers this off and do not hesitate to contact Alan or myself if you need to. All the best and see you soon,

Cas Knight

Managing Director Chelsea Digital Media

Highly Confidential

PLC00000237

Phone: [phone] Ext: 1280 Casimir. [e-mail] www.ChelseaFC.com

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CHELSEA FC PLC is registered in England and Wales. Company No. 02536231. Registered office: Stamford Bridge, Fulham Road, London SW6 IHS, United Kingdom. The information contained in this e-mail or in any attachments is confidential and is intended solely for the named addressee only. Access to this e-mail by anyone else is unauthorised. If you are not the intended recipient, please notify Chelsea FC pIc immediately by returning this e-mail to sender. Do not read, use or disseminate the information. Opinions expressed in this e-mail are those of the sender and not necessarily the company. Although an active anti-virus policy is operated, the company accepts no liability for any damage caused by any virus transmitted by this e-mail, including any attachments.

Highly Confidential

PLC00000238

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Schapiro Exhibit 102

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1

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,
VS.

CASE NO. 07-CV-2103

YOUTUBE, INC., YOUTUBE, LLC, AND GOOGLE, INC., DEFENDANTS.

THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO., ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
VS.

CASE NO. 07-CV-3582

YOUTUBE, INC., YOUTUBE, LLC, AND GOOGLE, INC., DEFENDANTS.

VIDEOTAPED 30(B) (6) DEPOSITION OF JEFFREY DUNCAN THURSDAY, NOVEMBER 12, 2009 LOS ANGELES, CALIFORNIA Job No. 18088

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, AND BLACK ENTERTAINMENT TELEVISION, LLC, PLAINTIFFS, CASE NO. 07-CV-2103

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vs.
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YOUTUBE, INC., YOUTUBE, LLC, AND GOOGLE, INC., DEFENDANTS.

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THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO., ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, vs. YOUTUBE, INC., YOUTUBE, LLC, AND GOOGLE, INC., DEFENDANTS. CASE NO. 07-CV-3582

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VIDEOTAPED 30(B) (6) DEPOSITION OF STAGE THREE (US), INC. through JEFFREY DUNCAN, taken on behalf of the Defendants, at 10:06 a.m., Thursday, November 12, 2009, at 350 South Grand Avenue, Los Angeles, California, before Elizabeth Borrelli, CSR No. 7884, pursuant to notice.

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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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APPEARANCES OF COUNSEL

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FOR PLAINTIFF STAGE THREE MUSIC (US), INC.: LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP BY: DAVID STELLINGS, ESQ.

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250 Hudson Street 8th Floor New York, New York 10013 [phone] [e-mail]

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FOR DEFENDANT YOU TUBE: MAYER BROWN LLP BY: ARIC S. JACOVER, ESQ.

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71 South Wacker Drive Chicago, Illinois 60606-4637 [phone] [phone] (fax) [e-mail] - AND -

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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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APPEARANCES (Continued):

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MAYER BROWN LLP BY: FIDELIS I. AGBAPURUONWU, ESQ.

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1999 K Street, N.W. Washington, D.C. 20006-1101 [phone] [phone] (fax) [e-mail]

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ALSO PRESENT: MARK HOWARD, Videographer

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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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11:23

Q.

But you're not -- b u t neither co-owner is

required to get approval from the other before licensing, correct?

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A.
11:24

Typ- - MR. STELLINGS: Object to the form of the

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question. THE WITNESS: Like I said, typically, no,

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but there are -- t h e r e are some instances where it is required.
11:24

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BY MR. JACOVER:

Q.
A.

In what instances is approval required? That would depend on the composition, the

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specific composition.

Q.

And what about the specific composition

would require that the co-owner get approval? A. When there's either a legal document or

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some type of an arrangement where the co-owner has requested that they be contacted prior to licensing the composition.
11:24 Q.

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Does Stage Three have any agreements with

co-owners of compositions that it administers?

A.

We do with Joe Egan, who's the co-writer

of the song "Stuck in the Middle With You," which is included in one of the works in suit here.
11:25

And he has given us permission to enter

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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11:25

into this suit and function on his behalf. Q. And does -- i s approval required from Joe

Egan to license his songs?

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A.
11:25

He is one of the

that is one of the

instances where we will go to his camp for approval on a license. Q. Are there any others, any other songs? I can't recall off the top of my head

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A.

without having the song files to reference.
11:25

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Q.

Do you know if there are any other songs

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that are works in suit in this case where Stage Three would need to get approval from a co-owner before licensing?

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A.
11:26

Yes, I know that. And what's the answer? The answer is no. Okay. Does Joe Egan own the other 50 percent of

Q. A. Q.

"Stuck in the Middle With You"?
11:26

A. Q.

He does, he and his publishing entity. If you could turn to page 94389. You'll see there's the column labeled

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"Subpublisher (if applicable)"?

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A.
Q.

I see that. How many subpublishers does Stage Three

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York., NY 10123 [phone]

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have?

A.

Off the top of my head I'd have to say

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roughly eight.
Q.

And what territories are they responsible

11 :27

for? MR. STELLINGS: repetitive. issue. You can tell him what you know. Objection. It's

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Ms. Slim already testified about this

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11:27

THE WITNESS:

Sure.

That she did; yeah, I

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did read that in Mary Ann's deposition, that she pretty thoroughly went over all of that. Shall I repeat? BY MR. JACOVER:

11:27

Q.

Well, it wasn't clear how many

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subpublishers there were, so I'm just trying to get a little more information on that.

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A.

Would you like me to name them

indi vidually?

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11:27

Q.

Sure. Okay. Okay. I'll do the best I can with it. For the territory of Canada, we have Peer This is from memory here, so ...

A.
Q.

A.

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11:28

Music Canada.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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For Germany we have Wintrup Music. For France we have Premiere Music. For all Latin-speaking territories we have Clippers Music, out of Spain.

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For the territory of South Africa we have Gresham. For the territory of Japan we have Watanabe. Spell it? Okay.

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For the territory of Australia we have Native Tongue. For minor eastern European territories we have EMI. For Sweden and one or two of the other

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11:29

Nordic countries we have Bonnier. And for several other minor European territories we have -- we have Shubert. And I believe that that's pretty inclusive.

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I might be missing one or two.

Q. A. Q.

Okay. But that's most of the world there. And do the Stage Three subpublishers, do

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they administer any of the works in suit? A. Only in their territory.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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11:30

Q.

Are the subpublishers required to get

approval from Stage Three before issuing licenses? A.
Q.
11:30

Yes. Does that approval have to be written? It is written, yes. And does Stage Three track all of the

5
6

A.
Q.

7
8
9

subpublisher licenses? A.
Q.
11:31

Can you explain what you mean by "track"? Does Stage Three keep track of the

10 11
12

licenses issued by its subpublishers, either in a database or something like that?
A.

Well, the sync licenses are kept track of

13

in this document that we're looking at here (indicating) .
11:31

14
15

Q.

And these include sync licenses issued by

16
17

subpublishers, as well? A. know of.
Q.
11:31

Yes, that we know of -- y e s , the ones we

18
19

Are there some that you don't know of? Typically, no. Yeah, it's accurate to say

20
21 22 23
24

A.
no.
Q.

Well, I'm a little confused.

You said

"the ones we know of," which seems to imply that there are ones that you don't know of.
11:31

25

A.

And then I said "typically, no," and then

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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(Whereupon Exhibit 12 was marked for identification. ) (Whereupon Exhibit 13 was marked for identification.)

2
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15:03

BY MR. Q. Three

JACOVER: So these exhibits have been marked Stage Exhibits 11, 12 and 13. And have you had a chance to look these

6
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(US)

8
9

over? 15:05 Have you -- h a v e you seen each of these documents before? A. I have not seen these documents

10
11

12 13 14 15 16
17

specifically.

Q.
15:05

Have you seen other take-down notices sent

by BayTSP on behalf of Stage Three?

A.
Q.

I have. So do you know whether those other

18
19

take-down notices have been produced by Stage Three in discovery in this case? 15:05 that. A. I do not specifically -- n o , I don't know

20

21

22
23
24

Q.

Do you recall approximately what the dates the other take-down notices

were for those other that you've seen? 15:06

25

A.

I do not.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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15:06

Q.

Do you recall what year they were sent? Late 2008, early 2009. Okay. So, again, to the extent that these other

2
3

A.
Q.

4 5
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15:06

take-down notices have not been produced, we will request production. MR. STELLINGS: I mean, for the record,

7 8
9

it's my understanding that we've produced to defendants all of the take-down notices.
15:06

But I

10 11 12

understand that you are saying that you haven't identified them, and, therefore, I will try to

figure out what's been produced and what has not been produced, if anything. MR.
15:06

13
14 15 16 17 18 19

JACOVER:

Okay.

BY MR. Q.

JACOVER: For the take-down notices that you have

seen, do you know if YouTube responded promptly to those take-down notices?

A.
15:07

They did. Has Stage Three ever had a problem with

20
21 22

Q.

YouTube not responding promptly to a DMCA-compliant take-down notice? A. Q.
15:07

23

We have not. Do you know how the URLs that are listed

24
25

in the take-down notices that you've seen were

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identified? MR. STELLINGS: question. You can answer. Object to the form of the

5
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15:07

THE WITNESS: URLs. BY MR. JACOVER: Q. URLs?

BayTSP identified those

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And did anyone at Stage Three review those

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15:07

A.

The process that I explained before is They are then sent

11
12 13 14 15 15:08

that BayTSP collects all URLs. to our lawyers for review. Q.

So since you haven't seen these particular

take-down notices before, I'll just represent to you that they have URLs for several works that are not works in suit in this case. So my question is, why did Stage Three decide to send take-down notices for those works instead of adding them to the works in suit?
15:08

16
17 18 19

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MR. STELLINGS:

You can answer to the

extent that it doesn't implicate any communications from your lawyers. THE WITNESS: Any answer that I give would

22

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25

implicate conversations I had with my lawyers.
11:02

BY MR.

JACOVER:

. DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York:, NY 10123 [phone]

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15:09

Q.

Why did Stage Three decide to bring this

lawsuit with respect to the works in suit instead of just sending take-down notices, as they did for some of the works in suit in the exhibits I just showed
15:09

5 6 7

you? MR. STELLINGS: I'll object.

You can answer to the extent that you can do so without implicating attorney-client communications.
15:09

8
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THE WITNESS:

Again,

I mean, any answer

that I would give would implicate attorney-client conversations. And we have been discussing this in detail for a long, long time, and every bit of it we've
15:09

12 13

14
15

discussed. BY MR. JACOVER: Q. what? I'm sorry. Every bit of it we discussed

16
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18 19 20 21 22 23 24 15:10

A.

We've discussed. MR. STELLINGS: You mean with your

lawyers? THE WITNESS: BY MR. Q.
15:10

In regards to -- y e a h .

JACOVER: Okay. The take-down notices and specifically

25

A.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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regarding your question. Q. Stage Three has never brought -- h a s n ' t

brought any lawsuits or other actions against the individuals that posted the clips in these take-down
15:10

4
5 6

notices or in any of the other take-down notices you've seen; is that right? A. There was -- t h e r e was an action brought

7
8 9

upon as a result of one -- o n e clip that we -- t h a t we saw relating to the Baltimore Ravens.
15:11

10 11
12 13

Q. A.
a lawyer. Q.

Okay. I don't -- I ' m sorry. I don't -- I ' m not

When you're looking at your lawyer,

it

14 15
16

makes it seem as if you're looking to him for
15:11

A.

I'm looking for him to stop me if I get you know, exposes

close to saying something that, attorney-client conversations.

17
18 19
20

Q. A.
15:11

Okay. That's all I'm doing there. The whole object as needed. I speak very quickly sometimes, though. So can you just describe to me the

Q. A. Q.

21 22 23 24
25

situation relating to the Baltimore Ravens. A.
15:11

The Baltimore Ravens had a contest at one

of their games where they played the song "Walk This

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Way" and had fans from the audience dance to it. And one of the contestants posted himself dancing to "Walk This Way" on the field and posted it to YouTube.

4
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15:12

We became aware of this clip and contacted the Baltimore Ravens, asking them why they didn't come to us for a license or come to the -- a n d they used the original master for a license. or coming to the label

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10 11 12 13 14 15

15:12

Q. A. Q. A.

Did you take -And Oh, go ahead. And we ended up settling with the

organization.
15:12

Q.

Did you take any action with regard to the

16
17 18 19 20 21 22 23
24

clip that was posted on YouTube?

A.
Q.

A take-down notice was sent. And did you take any action against the

individual that had posted the clip?
15:12

A.
Q.

No.
Has Stage Three ever retracted a take-down

notice that it had sent?

A.
Q.
15:13

Yes. In what instances do you remember? We sent -- I ' m sorry?

25

A.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York:, NY 10123 [phone]

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15:13

Q.

Yeah, please describe the instances in

which Stage Three has retracted a take-down notice?

A.

There was one instance where take-down

4
5

notices were sent to Eagle Rock Communications.
15:13

Q.

And what was the situation with Eagle Rock

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Communications? A. Eagle Rock is a record label who produced

8

a DVD of ZZ Top live, and Stage Three entered into a mechanical license with them for that DVD that also
15:13

9

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11
12 13 14 15 16

included a synchronization license, because it's a -- i t ' s got a video sync, as well, and it did, indeed, include -- t h e license did include granting of the rights to post clips of the DVD on the internet for -- i n whole or in part.

15:14

Q.
A.

The unlimited internet rights? It was all media, yes. And so had Eagle Rock Communications

17
18 19

Q.

posted a video on a website?

A.
15:14

Eagle Rock had posted on YouTube, on their

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21

YouTube channel, several of the ZZ Top -- c l i p s of the ZZ Top DVD. Q. And so Stage Three sent a take-down notice

22
23 24 25 15:14

regarding those clips? A. Q. BayTSP did. And how did you come to be aware that

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York:, NY 10123 [phone]

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those clips were, YouTube?

in fact,

authorized to be on

A.

We received an e-mail from an

administrative personnel at Eagle Rock.
15:15

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7

Q. A.

And what did that e-mail inform you? That we've been sent take-down notices by

BayTSP for the Stage Three Music content, and we feel we have the right to post this content. Please, can we discuss this.
15:15

8 9

Along those lines.

10

Q. A. Rock.

And how did Stage Three respond? We did have a conversation with Eagle We did review the license. And we did

11
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17

ultimately allow them to keep their content posted on YouTube.
15:15

Q. knowledge? A. Q.

Is that video still up on YouTube, to your

It is. So how did BayTSP come to identify this as

18
19

an infringing clip for which it sent a take-down
15:16

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21 22

notice? A. Using the software that they use to

identify these clips in the first place. Q. So would you classify this as a mistake

23 24 25
15:16

when they sent a take-down notice to YouTube?

A.

I think "an oversight" is better.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Q. A. Q. A.

An oversight on BayTSP's part? No, oversight on behalf of our lawyers. How so? In that it was -- o r it could -- y o u know, Let me back up. That could also be an Because,

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3

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15:17

excuse me.

oversight on Stage Three's part, as well.

7
8 9

as I've mentioned a couple times now, BayTSP sends all occurrences of our content on YouTube to our lawyers.
15:17

Our lawyers review it.

And there were

10

instances where some of those URLs were discussed. And this was -- t h i s should have been one of those instances that was discussed. And it's possible We reviewed a I don't recall

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12

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14 15 16 17 18 19 15:17

that we -- I don't recall exactly. lot of these. And I don't -- a g a i n ,

exactly how it happened, but this could have been one that was caught. Mistake. Q. Same thing? In that
~-

So I say "oversight."

A.
15:18

i n that neighborhood.

20
21

Q.

Has Stage Three provided any guidelines to

its lawyers about when it should discuss a particular URL on YouTube?

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23 24
25 15:18

A.

No.

Again Stage Three doesn't give legal We take legal advice from

advice to our lawyers. our lawyers.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10 123 [phone]

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Q.

Well, you said that this was one -- a n I'm

2
3

instance that should have been discussed.

trying to understand how you determined which URLs are -- w h i c h URLs prompt this discussion -- f u r t h e r
15:18

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5 6
7

discussion on whether --

A.
Q.

Those decisions -- t h e y are authorized? I'm sorry. I ' l l let you finish.

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9

A.
Q.
15:18

I'm finished. Those decisions were made by our lawyers.

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A.

11
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They then sent us the URLs that they wanted to discuss with us, not the other way around, Q. yeah.

So this particular URL was not sent to

14
15 16 17 18 19 20 21 15:19 15:19

Stage Three, then? A. I don't know specifically. Like I say,

there were a couple. it to us.

So I don't know if this made

But somewhere Stage Three should have

been able to identify that as a -- a n d ultimately we did identify i t as a licensed use. Q. But not until after the take-down notice correct?

had been sent,

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23
24

A.
Q.

Correct. Were there any written communications

regarding this retraction of the take-down notice?
15:19

25

A.

I believe there were e-mails.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Q.

In Torrance's e-mail she includes a

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3
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YouTube link of the "Ax Men" trailer concerning this song "Back Road Boogie", right? A.
15:40

Yes. So if you could turn, then, to the first

5
6
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Q.

page of this document, Professor Ferrara responds to Ms. Torrance's e-mail, and he says, "I listened to the trailer and to 'La Grange'. There are many

9 10 15:40

instrumental parts and elements in the one-minute long trailer requiring a great deal of musical transcription. That transcription must then be
I

11
12 13 14 15 15:40

compared to a transcription of 'La Grange'.

estimate that this will require approximately four hours of transcription and analysis." Do you see that? A. Q. Yes. Is that the typical process that a

16
17

18
19

musicologist would go through in analyzing one of these soundalikes to determine if they are
15:41

20
21

infringing? MR. STELLINGS: Objection.

22
23 24

You can answer if you know. THE WITNESS: There is no typical.

I can tell you that in this instance "La
15:41

25

Grange" is a song that is rooted in the American

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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blues tradition, and there are many subtleties that need to be taken into account. And that's why, I
.

2
3

think, it required that amount of work. BY MR. JACOVER:
15:41

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5 6

Q.

And that's why hiring a musicologist was

necessary in this case, correct? MR. STELLINGS: You can answer. THE WITNESS:
15:41

7
8
9

Objection.

We hired the musicologist --

10
11

well, this is -- I don't want to divulge what we've discussed with our other -- o u r other sets of lawyers that we do consult with. MR. STELLINGS: THE WITNESS: Okay. And you shouldn't.

12
13

14 15
16

Because we did have

15:42

discussions with our lawyer regarding this infringement. BY MR. JACOVER:

17 18 19
20

Q.

And did you take any action with respect

to this soundalike "Back Road Boogie"?
15:42

A.

We sent -- y e s .

We sent a cease and

21
22

desist after having tried to do a -- t o license the composition.

23

Q.

And did Professor Ferrara provide the

24 25 15:42

requested analysis? A. He did.

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Q.

And what were the -- w h a t was the results

of his analysis? A. He concluded ultimately that it was not an

4
5 6

infringement.
15:43

Q.

So if he concluded this was not an

infringement, why did you send a cease and desist regarding this compo- - - r e g a r d i n g "Back Road Boogie"?

7

8
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A.
15:43

It was a timing issue.

While he was still

10

in the process of reviewing it, we jumped the gun a bit and sent a cease and desist. By the time we

11
12 13 14 15 15:43

received the full report from the musicologist, we then stood down.

Q.

Did you send a take-down notice to YouTube

regarding the clip that had been posted on the site?

16

A.
Q.
A. the show.
15:44

No.
Why not? It was an -- i t was an advertisement for And it's not our composition. So if it's

17
18 19
20

not our composition, we can't be sending take-down notices.

21

22
23 24 25 15:44

Q.

When you say "it's not our composition,"

you're referring to "Back Road Boogie"? A. "Back Road Boogie" is not a Stage Three

composition.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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15:44

Q.

Well, if you had determined that it was an

infringement, "Back Road Boogie" was an infringement of "La Grange", would you then have sent a take-down notice to YouTube?
15:44

4

5
6

MR. STELLINGS: You can answer. THE WITNESS:

Objection.

Hypothetical.

7

Had we determined it was an If we

8
9

infringement, it would -- i t would depend.

issued a license after the fact, we might have
15:45

10
11

granted all media rights and, therefore, not sent out a take-down notice. BY MR. JACOVER:
Q.

12 13

In which case it would be authorized to be

14 15
16 17 18
19

on the site?
15:45

A.

In which case it would be authorized to be

on the site, unless YouTube was excluded from that language.
Q.

Should YouTube have taken any action in

response to this clip appearing on the site?
15:45

20 21
22
23
24
25

MR. STELLINGS: question. You can answer. THE WITNESS: to me?

Object to the form of the

Should they have, according

15:45

BY MR. JACOVER:

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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A. Q.

I do. Is he your -- S t a g e Three's Australian

2
3
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subpublisher?

A.
16:13

No.

He's an employee

he's a former

5
6
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employee of Native Toungue, who is Stage Three's Australian's sUbpublisher. Q. So he's affiliated -- o r used to be

8
9

affiliated with Australia's Stage Three subpublisher?
16:13

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11

A. Q. time,

He was,

yes.

And he was affiliated with them at this correct?

12 13 14 15 16 16:13

I presume,

A.
Q.

He was. And this is February 15, 2007, was when he correct?

sent his e-mail, A. Q.

That's what it says, yes. If you could turn to page 4 of this -- o f

17
18
19 20 21 22
23

the attachment. There's a heading "Previous Releases" and
16:14

then a subheading "Previous Videos." Do you see that? A. Q.
I

do.

And under that subheading there are three "Sixteen Military

24 25 16:14

YouTube links for the videos:

Wives," "Los Angeles I'm Yours," and "The Solidering

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Life." A.
Q. A.

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"Soldiering." I guess that's spelled wrong. It is. "The Soldiering Life." You said it right; they spelled it wrong. Okay. Do you have any idea why these YouTube

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7

16:14

Q. A. Q.

8
9

links were included in this marketing plan?
16:14

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12

A.

This was created by EMI Capital, And I do not know why they would include

Australia.

YouTube links.
Q.

13
14 15 16 17 18 19 16:14

And what is EMI Capital Australia? It's a record label. And are they affiliated at all with Stage

A.
Q.

Three's subpublisher in Australia?

A.
Q.

What do you mean by "affiliated"? Did they I shouldn't say "affiliated."

Did they work with Australia's Stage
16:15

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21

Three -- s o r r y -- S t a g e Three's Australia subpublisher? A. them, yes.
Q.

22
23
24

It appears that they have worked with

And do you know who may have posted these

25

16:15

clips on YouTube?

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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16:15

MR. STELLINGS: question. THE WITNESS: BY MR. JACOVER:

Object to the form of the

I do not know.

16:15

Q.

Do you know if Stage Three made any effort

to determine if these videos were authorized to be on YouTube?

7

8
9

A.

I believe that take-down notices were sent

for all of our content that was on YouTube that was
16:15

10
11
12

not authorized.

Q.

And is that based on your presumption that

BayTSP finds and removes all of Stage Three's content?

13
14 15 16 17 18 16:16

A.
Q.

Yes. Do you know if anyone at Stage Three ever

instructed its subpublisher not to post or link to videos on YouTube?

A.
do that.
16:16

No one instructed our subpublishers not to

19
20 21

Q.

Are you aware of any Stage Three artists I should

that have an official channel on YouTube? say Stage Three writers. A. writers. Yeah.

22
23
24

The only one I'm aware of is the one that
16:16

25

I mentioned before, which was the Aerosmith writers.

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16:16

Q. A. Q. A.

Did they have an official YouTube channel? Yes. Okay. So it's the one that contains the

16:16

interviews and Brad Whitford driving a --

6

Q. A.
Q.

Are you aware of any other -- r a c e c a r . Sorry. Are you aware of any other Stage Three

7
8
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11 12 13

16:17

writers that have an official channel on YouTube? A. I am not. MR. JACOVER: I'm going to show you two

exhibits at once, which we will have marked as Stage Three 16:17 (US) Exhibits 17 and 18, both of which consist

14
15

of printouts from two different websites. (Discussion off the record.) MR. JACOVER: one second? MR. STELLINGS: Do you want to take a Can we go off the record for

16 17 18 19
20 21 22 23 24

16:18

quick bathroom break now? MR. JACOVER: Sure. Take a quick break. We are going off the

THE VIDEOGRAPHER: record at 4:19 p.m. (Recess.) 16:19

25

II

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16: 40

A.

Okay. Now, making -- y o u asked me, should

YouTube know whether or not the content posted here is authorized or unauthorized by looking at it,
16:41

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5
6

right?

Q.
A.

Well, not quite what I asked, but let's -Let's say you did. Let's say that's the question, okay. Okay. And then my response to that is, I was

7

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9

Q. A.
16:41

10
11 12
13

rather than -- my other question I answered,

answering in the frame of this is all the damages that have already been done, it was saying -- t h i s is from the inception of YouTube to now. My answer

14
15

relating to this was business model for YouTube
16: 41

going forward, that it should not allow any content -- i t ' s already allowed all this content unauthorized content on its website as it stands, but I'm saying going forward, YouTube should know what content is authorized simply by insisting that

16
17

18
19 20

16: 41

anyone who uploads videos to their website have a legitimate license in place. That was really long. understood what I was getting at. Q. I think so. I mean, it's And I hope you

21
22 23

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25

16:42

A.

--

h e r e ' s another way of

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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answering that question, and this is easier and clearer. Q. Okay. Go ahead.

2
3

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A.
16:42

We know that -- I might have bitten off We know

5
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more than I can chew, but I'll continue.

that Stage Three and YouTube don't have any agreement between the two companies, mind, so with that in

8
9

99 percent of whatever is posted on YouTube is just by virtue of knowing that any of

unauthorized, 16:43

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11

Stage Three content that ends up on YouTube is unauthorized, with the exception of the occasional video trailer and advertisement where we grant all media rights. It would actually be easier for Stage

12 13
14

15 16
17 18 19

16:43

Three to say,

okay, here are the,

you know,

15 or 20

instances where it's actually okay for a production company or a studio to upload YouTube videos where we've granted these rights; here are the 15 or 20 instances of that. 16:43 Q. A. And has Stage Three ever done that? No. Has Stage Three ever informed YouTube of

20 21
22

Q.

23 24
25

the instances when the content was authorized to be on the site? 16:43

A.

We're in the process of doing that right

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16:43

now
Q.

What -via this suit. My question is, has Stage Three ever

A.
Q.
16:44

informed YouTube of content that is authorized to be on the site?

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A.

We've, via BayTSP, informed them of what's

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not authorized to be on their site.
Q.
16:44

That's not my question. You just said it would be easier if

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Stage -- h o l d on.

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A.
Q.

Yes. -- i f Stage Three would inform YouTube of

the content that is authorized to be on the site.
16:44

And my question is -- i t ' s very simple -- h a s Stage Three ever informed YouTube -A.
Q.

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No.
-- o f that content?

A.
16:44

No.
Okay. But I'm saying that -- a n d I would like to

Q.

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A.

finish my thought here -Q.

Sure. -- w h i c h is, so if we were to inform you

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16:44

A.

of the roughly 15 or 20 authorized uses, you could

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

A-747

Schapiro Exhibit 104

A-748
Page 1
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, vs. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants.
) ) ) ) ) ) ) )

) NO. 07-CV-2203
) ) ) ) )

--------------------------------))
THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., et al.,) on behalf of themselves and all ) others similarly situated, ) Plaintiffs, vs. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants.
) )

) NO. 07-CV-3582
) ) ) ) )

--------~~~~=-~~~~~~~~)

VIDEOTAPED DEPOSITION OF BRIAN K. BRADFORD SAN FRANCISCO, CALIFORNIA THURSDAY, MARCH 12, 2009

BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CLR JOB NO. 16590

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf-4802-a95b-b668dacc616d

A-749
Page 2 I ·
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MARCH 12, 2009

9:53 A.M.

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VIDEOTAPED DEPOSITION OF BRIAN K. BRADFORD WILSON SONSINI GOODRICH & ROSATI, LLP,

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One Market Street, Spear Tower, San Francisco California, pursuant to notice, and before,
ANDREA M. IGNACIO HOWARD, CLR, RPR, CSR

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License No. 9830.

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DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf-4802-a95b-b668dacc616d

A-750
Page 3
1

A P PEA RAN C E S:

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FOR THE PLAINTIFFS CAL IV ENTERTAINMENT: GIRARD GIBBS LLP By: CHRISTINA C. SHARP, Esq.

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601 California Street, 14th Floor San Francisco, California 94108-2819 [phone] [e-mail]

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FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN LLP By: GREGORY FRANTZ, Esq. ILANA D. GOLANT, Esq. 1675 Broadway New York, New York 10019-5820 [phone] [e-mail]; [e-mail]

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ALSO PRESENT:

Lou Meadows, Videographer.

---000---

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DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf4802-a95b-b668dacc616d

A-751
Page 47
1 11:05:06 11:05:09 11:05:10 11:05:10 11:05:13 11:05:28 11: 05: 34 11:05:39 11:05:43 11:05:46 11:05:49 11:05:49 11: 05: 53 11:05:56 11:06:01 11:06:06 11:06:14 11:06:23 11:06:27 11:06:30 11:06:32 11:06:35 11:06:38 11:06:42 2 3 4 5 6 7 8 9 10 11 12

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BRADFORD different names listed as copyright claimants? see that? Do you

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Q
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Yes. Can you explain who each claimant is? Gravitron Music and Whaddayadef Music are the

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copyright claimants on behalf of Sam Tate and Kathleen Wright, person known as Annie Tate, and Cal IV is the rep- - - t h e claimant on behalf of Dave Berg.

Q

Are Gravitron Music and Whaddayadef Music,

are those the same company or are they different companies?
A

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I'm not completely sure because that's

you

know, that -- t h a t ' s a third party.

From what my

understanding is, Gravitron Music is the SESAC publisher for a company called Carnival Music Company based in Nashville. And Sam Tate and Annie Tate were

under contract with that company when they wrote the song and -- a n d it appears that part of their deal included co-publishing interest, which, I believe, is -- t h a t ' s where the Whaddayadef Music is probably the name of their co-publishing interest.

Q

And at the time this registration was filed,

which, as you'll note, was June 19th, 2006, did your company, in fact, have an ownership interest in this

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf4802-a95b-b668dacc616d

A-752
Page 48
1

BRADFORD copyright? MS. SHARP: conclusion. Answer to the extent you know the answer. THE WITNESS: MR. FRANTZ: Yes. The question may call for a legal

11:06:44 11:06:44 11:06:46 11:06:48 11:06:52 11:06:55 11:06:56 11:06:59 11:07:01 11:07:05 11:07:09 11:07:16 11: 07: 17 11:07:19 11:07:20 11:07:23 11:07:25 11:07:26 11:07:30 11:07:33 11:07:35 11:07:38 11:07:44 11:07:52

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Q.

And why do you say your

company had an ownership interest? MS. SHARP: THE WITNESS: Again, legal conclusion. As I discussed earlier, Dave

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Berg was under contract with us at the time of writing this composition. MR. FRANTZ:

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Q.

And when did your company

acquire the ownership interest?
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Q

Upon creation of the work. What percent ownership in the in the

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overall work did your company acquire? MS. SHARP: THE WITNESS: Same objection. Our -- o u r controlled

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administrative interest is one-third. MR. FRANTZ:

Q.

And was it one-third the

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whole time or did that change at some point?
A

Initially, Dave Berg had a co-publishing The name of his

arrangement with -- w i t h Cal IV.

co-publisher was Berg -- B e r g B r a i n Music, and at the

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf-4802-a95b-b668dacc616d

A-753
P a g e 49
1 11:08:02 11:08:05 11: 08: 12 11:08:17 11:08:23 11:08:26 11: 08: 35 11:08:37 11:08:40 11:08:41 11:08:49 11:08:58 11:08:58 11:08:59 11:09:01 11:09:04 11:09:12 11:09:14 11:09:14 11:09:17 11:09:23 11:09:23 11:09:24 11:09:28 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BRADFORD time the -- t h e contractual split between Cal IV and his co-pub was of -- o f the controlled administered share, Cal IV had two-thirds, and BergBrain Music had one-third, but that -- t h e BergBrain Music purcatalog was purchased by Cal IV, and, thus, the full share became Cal IV's share.
Q

And with respect to the overall copyright

today, what percentage of the copyright does Cal IV own? MS. SHARP: THE WITNESS: MR. FRANTZ:
Q

Same objection. Today it's one-third. Okay.

Now, look at the second page. Do you see at the bottom of the second page

in

in Section No. 9 is a reference to "Bluewater Do you see

Music Services Corp/Attn: Dan Ekback"? where I'm looking? A
Q

Yes. Okay. Do you know who Dan Ekback of

Bluewater Music Services Corp is? A
Q

Yes. Who is he? At the time, he was -- I ' m not sure exactly

A

what his title was, but he was an upper-level

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6~fdf-4802-a95b·b668dacc616d

A-754
P a g e 50
1 11:09:36 11:09:40 11:09:43 11:09:48 11:09:48 11:09:52 11:09:57 11:10:06 11:10:10 11:10:12 11:10:16 11:10:20 11:10:29 11:10:33 11:10:38 11:10:42 11:10:45 11:10:50 11:10:57 11:10:59 11:11:02 11:11:04 11:11:06 11:11:10 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BRADFORD administrative specialist with Bluewater Music services Corp.
Q

And who's Bluewater Music Services Corp, if

you know? A Bluewater is -- I -- w e l l , I -- I ' m not Obviously, that's a

completely sure what all they do.

third party, but from my understanding is they are -and a -- a copyright administration service for other publishers.
Q

And if you look at Section 8, just above

where we're looking, very small box that's checked that says "Authorized agent of Gravitron Music, Whaddayadef Music," does that mean that this copyright was filed by Bluewater on behalf of Gravitron Music and Whaddayadef Music? A Dan Ekback, from -- f r o m my understanding of

this, Dan Ekback of Bluewater Music Services was -was/is the administrator for Gravitron, Whaddayadef, and they filed the copyright registration.
Q

Did Cal IV have any involvement in the filing

of the copyright registration?

A
Q

No.
Did Cal IV know about the filing of the

copyright registration?

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf4802-a95b-b668dacc616d

A-755

1 11:47:58 11:48:03 11:48:06 11:48:16 11:48:19 11:48:21 11:48:26 11:48:29 11:48:33 11:48:33 11:48:36 11:48:42 11:48:45 11:48:47 11:48:49 11:48:49 11:48:51 11:48:54 11:48:56 11:49:05 11:49:14 11:49:18 11:49:24 11:49:27

BRADFORD songwriter's agreement immediately upon its creation, which was in 2005, I believe -- i s that correct?
A

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Let me look at this schedule here. Date of creation April 19th, 2005.

Q

Okay.

So your testimony is that the

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copyright was assigned from Berg to Cal IV, at least a certain interest of that was assigned immediately upon creation; is that correct?
A
Q

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Yes. So why is there any need for the assignment

documents in 2007?
A

It's a -- a r e you -- w h i c h one are you -- a r e Exhibit 9?

you referring to?
Q

I'm referring to both Exhibit 8 and

Exhibit 9.
A

Okay.

Exhibit 8 was necessary because of the

asset sale and purchase agreement, or asset purchase and sale agreement. Exhibit 9 was necessary as a prescribed step with -- t h a t was -- t h a t -- t h a t was an obligation under the songwriter agreement. It's more of a

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formality to list the compositions within the agreement.
Q

But there was nothing improper about -- a b o u t

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf4802-a95b.tJ668dacc616d.

A-756
Page
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BRADFORD the copyright being registered in Cal IV's name back in 2006, because Cal IV had already acquired the copyright immediately upon its creation; is that correct?
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Correct. Okay. NOw, are there co- - - o t h e r co-owners

§

of the work "If You're Going Through Hell"?
A

We discussed that earlier.

The publishers

for Sam Tate and Annie Tate, Gravitron Music and Whaddayadef Music.
Q

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And how do you know about those co- - - o t h e r

co-owners? MS. SHARP: THE WITNESS: Form. Well, how -- h o w do I know that

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they are the co-owners, or how do I know about the co-owners? MR. FRANTZ:
Q.

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Well, how do you know that

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they are the co-owners of that work? A Because when Dave Berg turned the song in to

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us, on our -- i n our process of deliveries and, you know, we -- we need to know who he wrote songs with, he told us that Sam Tate and Annie Tate co-wrote the song with him, and we knew that they were contracted writers with Carnival Music Company, which is, you

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf-4802-a95b-b668dacc616d

A-757
P a g e 70
1 11:50:53 11:50:57 11:51:01 11:51:05 11:51:08 11:51:11 11:51:15 11:51:23 11:51:26 11:51:30 11:51:34 11:51:41 11:51:43 11:51:46 11:51:49 11:51:52 11:51:55 11:51:57 11:52:02 11: 52: 04 11:52:10 11:52:12 11:52:15 11:52:18 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BRADFORD know, the -- y o u know, the -- t h e i r SESAC company is Gravitron Music. That's a subsidiary of Carnival, so

they were under agreement with them.

Q

And if there were some change in the

ownership status with respect to the other co-owners of this work, would you be notified of that? A Not necessarily. Do you agree that the other co-owners of the

Q

work are entitled to grant licenses with respect to the work? A As -- a s the -- c o n t r o l l i n g and administering

their exclusive rights, I would say yes.

Q

Do you know whether any of the co-owners, the

other co-owners have, in fact, granted any such licenses with respect to "If You're Going Through Hell"?
A

I honestly -- I

I wouldn't know what kind I don't have access to their

of licenses they grant. documents.
Q

Could you acquire such information? Probably not. When you say "Probably not," why do you say

A
Q

that? A Because they would have no reason to give me

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]
65d375b6-<1fdf-4802-a95b-b668dacc616d

A-758
P a g e 71
1 11:52:23 11:52:24 11:52:27 11:52:28 11:52:38 11:52:38 11:52:40 11:52:42 11:52:43 11:52:46 11:52:52 11:52:54 11:52:55 11:53:04 11:53:05 11: 53: 07 11:53:14 11:53:15 11:53:18 11:53:24 11:53:28 11:53:28 11:53:28 11:53:30 2 3 4 5 6 7 8 9 10 11 12 13
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BRADFORD copies of their licenses. MR. FRANTZ: Exhibit 10, please. (Document marked Bradford Exhibit 10 for identification.) THE WITNESS: exhibits? Are we done with these Let's mark a new exhibit,

Can I get them out of my way? We are for the most part, but

MR. FRANTZ:

there is a chance I may come back to them. THE WITNESS: MS. SHARP: I'm sorry. MR. FRANTZ: THE WITNESS: MR. FRANTZ: Okay. There you go, sir. Exhibit?

10.
Okay. Can you identify

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--

l e t me just

note for the record that its

--

t h e Bates No. is CAL

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'1593 through ' 97 .
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Can you identify the document? This is a "Lyric Reprint License Agreement"

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between Cal IV and Country Music Media Group for "If ~
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You're Going Through Hell. "
Q

;

All right. And when you look at the first page of the

document, do you see that it says Cal IV controls

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-dfdf-4802-a95b-b668dacc616d

A-759
Page 72 .~
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BRADFORD 33.34 percent of the work? MS. SHARP: MR. FRANTZ: Where are you looking, Counsel? I'm looking in Section 1, the

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last sentence of Section 1. THE WITNESS: MR. FRANTZ:
Q

Yes. Okay.

And am I correct that at that time, which is

August 14th, 2006, what that meant is that Cal IV itself owned 22 percent and BergBrain owned 11 percent? Is that correct? Misleading question.

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MS. SHARP:

You can answer, if you understand it. THE WITNESS: Well, to be more specific, Cal That's correct.

IV 22.23, and BergBrain 11.11. MR. FRANTZ: Q Okay.

And if you flip to the last page, which is

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'1597, do you see towards the top in the column on the right it says "Controlled Percentage: O"?
A
Q

Yes. What does that mean? This -- w e l l , this is for one thing, this

A

is a printout from RightTrack in our system, and the -- R i g h t T r a c k is not a -- a very modernized program. It's a very old program. Basically, I use

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 [phone]
65d375b6-<1fdf-4802-a95b-b668dacc616d

A-760
P a g e 240
1 17:29:48 17:29:52 17:29:57 17:29:59 17:30:03 17:30:08 17:30:14 17:30:20 17:30:24 17:30:25 17:30:32 17:30:36 17:30:39 17:30:45 17:30:49 17:30:52 17:30:55 17:30:57 17:30:59 17:31:02 17:31:06 17:31:07 17:31:10 17:31:13 2 3 4 5 6 7 8 9 10
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BRADFORD sentence we just read, this is, again, your e-mail, you say, "However, our license agreements must be specific to each use." What did you mean by that? A Probably specific to each use. The -- e a c h

use, being whatever video he intended to post. Q A "Each use," does that mean each URL? I -- I would say a -- t h e URL was indicative

of the use. Q URL? A Well, I would say that the -- t h e posting of Does "each use" mean something besides each

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a video, which generates a unique URL, is a specific use. Q Because if we keep reading, you say, "In this

case, the URL of each video posting needs to be listed in the license agreement." So what I'm trying to understand here was, were you contemplating that the license would apply only to particular URLs? A Q Yes, I believe that was the intention. So does this mean that for two