IO Group, Inc. v. Veoh Networks, Inc.

Filing 101

Declaration of Gill Sperlein in Support of Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment 99 filed by IO Group, Inc. (Attachments: # 1 Exhibit Papa Exhibit Pages# 2 Exhibit Styn Exhibit Pages# 3 Exhibit Veoh v. UMG Complaint)(Related document(s) 99 ) (Sperlein, Dennis) (Filed on 8/21/2007) Text modified on 8/22/2007 to conform to document caption post by counsel (bw, COURT STAFF).

IO Group, Inc. v. Veoh Networks, Inc.

Doc. 101 Att. 1

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IO GROUP, INC., a California ) Corporation, ) ) Plaintiff, ) ) vs. )Case No. C-06-3926(HRL) ) Veoh NETWORKS, Inc., a ) California Corporation, ) ) Defendant. ) _____________________________)

HIGHLY CONFIDENTIAL DEPOSITION OF JOSEPH PAPA VOLUME I SAN DIEGO, CALIFORNIA MAY 21, 2007

REPORTED BY:

NICOLE R. HARNISH, CSR No. 13101

Dockets.Justia.com

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IO GROUP, INC., a California ) Corporation, ) ) Plaintiff, ) ) vs. )Case No. C-06-3926(HRL) ) Veoh NETWORKS, Inc., a ) California Corporation, ) ) Defendant. ) _____________________________)

DEPOSITION OF JOSEPH PAPA, taken by the Plaintiff, commencing at the hour of 9:00 a.m., on Monday, May 21, 2007, at 530 B Street, Suite 350, San Diego, California, before Nicole R. Harnish, Certified Shorthand Reporter in and for the State of California.

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APPEARANCES:

For the Plaintiff: GILL SPERLEIN GENERAL COUNSEL TITAN MEDIA.COM BY: GILL SPERLEIN, ESQ. 584 Castro Street, Suite 849 San Francisco, California 94114 For the Defendant: WINSTON & STRAWN BY: JENNIFER A. GOLINVEAUX, ESQ. 101 California Street San Francisco, California 94111

Also Present:

Keith Ruoff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXAMINATION: By Mr. Sperlein WITNESS: JOSEPH PAPA

INDEX

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EXHIBITS MARKED FOR IDENTIFICATION 1 2 3 Document from the wiki site Document from the wiki site Various e-mail correspondence 65 119 121

Questions Witness Instructed Not To Answer Page Line 54 25 98 24 105 5

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you should cancel video files that are blatant examples of copyright infringement? MS. GOLINVEAUX: Object to the extent that

it would require you to disclose attorney-client communications. I would instruct you not to answer. Who's Veoh in this context?

THE WITNESS: BY MR. SPERLEIN: Q. A. Q.

Veoh is any employee or director of Veoh. I am not going to answer. Have you instructed any employee below

you -- first off, do you have any employees that report to you directly? A. Q. Yes. Have you instructed any of those employees

to remove video files if they appear to be blatantly copyrighted material? A. policy. I have advised all employees as to our DMCA And I have let them know that Josh Metz --

who is our chief counsel -- is available if they have questions as to policy. Q. Prior to Josh Metz coming to Veoh as your

chief counsel, did you ever instruct any other employee to remove video files that they thought were blatantly copyright infringement? A. I can't recall a specific conversation, but

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IO GROUP, INC., a California ) Corporation, ) ) Plaintiff, ) ) vs. )Case No. C-06-3926(HRL) ) VEOH NETWORKS, Inc., a ) California Corporation, ) ) Defendant. ) _____________________________)

DEPOSITION OF JOSEPH PAPA, taken by the Plaintiff, commencing at the hour of 8:10 p.m., on Tuesday, May 22, 2007, at 530 B Street, Suite 350, San Diego, California, before Nicole R. Harnish, Certified Shorthand Reporter in and for the State of California.

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APPEARANCES:

For the Plaintiff: GILL SPERLEIN GENERAL COUNSEL TITAN MEDIA.COM BY: GILL SPERLEIN, ESQ. 584 Castro Street, Suite 849 San Francisco, California 94114 For the Defendant: WINSTON & STRAWN BY: JENNIFER A. GOLINVEAUX, ESQ. 101 California Street San Francisco, California 94111

Also Present:

Keith Ruoff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 17 13 14 15 EXAMINATION: By Mr. Sperlein WITNESS: JOSEPH PAPA

INDEX

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EXHIBITS MARKED FOR IDENTIFICATION 11 12 Printouts from Veoh Forum section E-mail correspondence from Joseph Papa to Brad Seraphin, Engineering, dated 6/21/2006 Various e-mail correspondence Section of the Wiki E-mail correspondence from Dmitry Shapiro to John MacDonald, Ted Meisel, Francis Costello, Todd Leeloy, dated 12/23/2006 E-mail correspondence from Joseph Papa to Ted Dunning, dated 6/9/2006 E-mail correspondence from Joseph Papa to Ted Dunning, dated 5/23/2006 Questions Witness Instructed Not To Answer Page Line 174 13 176 20 180 18 182 24 184 18 201 206

232 233 236

239 240

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BY MR. SPERLEIN: Q. A. Q. And did you take such measures? No. Can you tell me what measures were

discussed that were a possible way of dissuading people from uploading child porn? A. We discussed a stern warning presented on

the upload page. Q. Was that stern warning ever added to the

Veoh system upload page? A. Q. A. Q. No. Did you discuss any other measures? Not that I recall. Are you aware of any additional

documentation that could have been required that would help eliminate child pornography from appearing on the Veoh system? MS. GOLINVEAUX: question. Object to form of the

Calls for speculation. THE WITNESS: What would constitute

"documentation"? BY MR. SPERLEIN: Q. Any written piece of paper with further

information from the uploader. MS. GOLINVEAUX: Would you read back the

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to the removal of adult video files from the Veoh system and the concurrent change in Veoh policy regarding adult material, if an individual who was an employee of Veoh encountered a video file which they deemed to be obviously copyright infringement, was that -- were those employees authorized to delete the video file from the Veoh system? MS. GOLINVEAUX: question. THE WITNESS: Veoh employees have always Object to the form of the

been bound by the DMCA policy. BY MR. SPERLEIN: Q. Does that policy include permission for a

Veoh employee to delete a video file that that employee deems to be a blatant copyright violation? MS. GOLINVEAUX: question. Object to the form of the

Calls for legal conclusion. THE WITNESS: Employees don't delete files.

BY MR. SPERLEIN: Q. Can you clarify that last statement? When

you say "Employees don't delete files," is there another term that more accurately describes how an employee prevents a video file from being viewed by users on the system? A. Canceled files are not removed from the

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file system, but are not accessible. Q. Okay. So prior to Veoh's change in its

policy regarding sexually explicit material being available on the Veoh system, were employees permitted to cancel files which the employee, in his own estimation, deemed to be obviously acts of copyright infringement? MS. GOLINVEAUX: question. THE WITNESS: BY RIGHT1: Q. I am handing you an exhibit that the court Will you take Yes. Object to the form of the

reporter will mark as Exhibit No. 12.

a look at that and tell me when you have had a chance to review it? (Plaintiff's Exhibit No. 12 was marked.) THE WITNESS: BY MR. SPERLEIN: Q. Okay. This is Defendant's Exhibit Document It is an e-mail from Okay. I have had a chance.

Production No. 00026.

Joe Papa to Brad Seraphin and Engineering, copied to Mr. Costello; and it is dated June 21st, 2006. subject line is "porn watch schedule." Are you familiar with this document? A. Yes. The

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clarify. Does Veoh require a DMCA notification from the owner of the copyrighted work or the registered agent before Veoh will cancel the file from the system? MS. GOLINVEAUX: of the question. THE WITNESS: BY MR. SPERLEIN: Q. A. Yes. Meaning that that is the only circumstance Do we require that? I will object to the form

under which that would happen? Q. A. Q. That's correct. No. And we are speaking right now currently, or

did you answer the question regarding your current policy? A. Q. Current policy. Going back to June 21st, '06, and prior to

that, would Veoh take down video files if they were identified as possibly containing copyrighted material even if that notification did not come from the owner or agent of the owner of the content? A. Q. No. Has any person or entity ever requested

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that Veoh prevent their copyrighted works from appearing on the Veoh system? MS. GOLINVEAUX: question. THE WITNESS: I am not aware of that Object to the form of the

request from anyone outside work. BY MR. SPERLEIN: Q. Are you familiar with whether NBC Universal

provided Veoh a list of its titles with the requests that Veoh prevent those works from appearing on the Veoh system? A. I am not aware of any requests to prevent

works from appearing on the system. Q. With your understanding of how the Veoh

system operates, if an individual or company were to provide a list of works that it wished to have Veoh prevent from appearing on the Veoh system, could Veoh comply with that request? MR. GOLINVEAUX: question. THE WITNESS: BY MR. SPERLEIN: Q. Titles. For example, if someone gave you a Can you clarify "works"? Object to the form of the

list of titles of movies and requested that Veoh prohibit those movies from appearing on the Veoh

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system, could Veoh take measures to prevent such movies from appearing on the system? A. Q. measures? A. If we were given titles and a video was of No. And why is it that Veoh could not take such

the content that was expressed, but not titled as such, then we would have no way of preventing that from appearing. Q. If a company contacted Veoh and said we

don't want any work that has our trademark or our company's name on the video work, could Veoh take measures to prevent video files with that company's name or trademark from appearing on the system? MS. GOLINVEAUX: I will object as outside

the scope of the 30B6 notice. THE WITNESS: I am not aware of a

technology that would allow us to detect any piece of content that would indicate a trademark. BY MR. SPERLEIN: Q. Could a human looking at a video file

determine if it had a particular trademark on it? MS. GOLINVEAUX: question. Object to the form of the

Calls for legal conclusion. THE WITNESS: If the human was trained, I

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suppose they could. BY MR. SPERLEIN: Q. If 20th Century Fox said to Veoh we would

like you to prevent any video file that has "20th Century Fox" opening screen generally associated with our movie and showed you what that screen looked like could Veoh review files and prevent that from appearing on the Veoh system? MS. GOLINVEAUX: question. THE WITNESS: BY MR. SPERLEIN: Q. A. Q. To look at with human eyes. Human eyes. That sounds plausible, yes. Can you clarify "review"? Object to the form of the

But as far as you know, no company has

requested that Veoh review video files in advance and prevent them from appearing on the Veoh network regardless of whether it was identified by title or brand; is that accurate? A. I am not aware of any outside requests to

prevent content from appearing on Veoh. Q. If a producer were to provide Veoh with an

actual copy of the content of its content and requested that Veoh prevent any of that content from appearing on the Veoh system, is there any way that

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Veoh could comply with that request currently? MS. GOLINVEAUX: question. THE WITNESS: Currently we could prevent an Object to the form of the

exact duplicate of the content provider, bit for bit, precisely the same file. BY MR. SPERLEIN: Q. And could you do that -- strike that. When you say "bit for bit," would that -would such a file generate a hash I.D. that would be identical to a hash I.D. that is on your system? Is

that how your able to do it, or is there some other method? A. If there was a file that produced the same

hash I.D., then we could consider it the same file. Q. But in order for a video file to do that it

would have to be an exact replica of a file that has previously been on the Veoh network; is that accurate? A. You are asking me about a hypothetical case

where a third-party gives us a sample file? Q. A. Right. So the sample file would have to be bit for

bit exactly the same file as the hypothetically uploaded file that we would match against it.

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Q.

So if someone came along and tried to

upload a video file, but removed the first three seconds from that video file, you would no longer be able to automatically, through a technological process, identify that file as one that has been -that has requested to be filtered out; is that accurate? A. Q. That is accurate. If Titan Media, prior to June 1st, 2006,

had given Veoh a list of titles that were in its collection and requested that Veoh prevent those titles from being -- appearing on the Veoh system, could Veoh have complied with that request? MS. GOLINVEAUX: question. Object to the form of the

And calls for speculation. THE WITNESS: If we had received a DMCA

compliant take down request, we could have taken down the content. have done. BY MR. SPERLEIN: Q. So proactively if Veoh [sic] had given you And at that time that is all we could

a list of title, could Veoh have filtered metadata based on those titles to make sure that at least the titles were not entered into the Veoh system? MS. GOLINVEAUX: Object to the form of the

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question. THE WITNESS: Titles would not be

sufficient information for us to do a takedown. BY MR. SPERLEIN: Q. process. Okay. I am not asking about a takedown

I'm asking about a request that Veoh take

measures in advance to prevent material from appearing on the Veoh system. And specifically, right now, I am asking only about metadata, understanding that people may sometimes put incorrect metadata titles in various content. But my question is if Io Group, which does

business as Titan Media, had sent a list of titles to Veoh and said "These titles all belong to us. see any of these titles listed as the title associated with a video file on your system, we ask that you cancel that video file," could Veoh have done that? A. From a technological perspective could we If you

have searched for each one of those titles and canceled any results that came back as part of that search? Q. A. Q. Yes. Yes. Could Veoh have prevented those words from Answer that.

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ever being entered in as a title in the first instance? A. We could have prevented those words from

being entered into a title. Q. And if Titan Media had sent copies of all

of its movies to Veoh, is there any process that Veoh could have taken in order to prevent any portion of those movies from being uploaded onto the Veoh system? MS. GOLINVEAUX: question. THE WITNESS: BY RIGHT1: Q. A. Q. Any portion. No. If Io Group had sent that same copies of Any portion? Object to the form of the

all of its movies on to Veoh and asked that no portion of those movies be permitted to be uploaded onto the Veoh system, could Veoh have had employees review all of those movies and then based on that human review somehow review incoming material to prevent it from going onto the Veoh system? MS. GOLINVEAUX: the question? (Record read.) Would you please read back

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. question.

MS. GOLINVEAUX:

Object to the form of the

And calls for speculation. THE WITNESS: As I understand the question

it is asking if we could have had humans reviewing all uploaded content and screen out the content that was provided by Titan Media; is that correct? BY MR. SPERLEIN: Q. A. that. That's correct. It was never considered feasible to do

And at that time we would not have been able

to do that. Q. Are there any actions that Io Group could

have taken prior to June 21st, 2006, to prevent its works from appearing on the Veoh system? MS. GOLINVEAUX: Object to the form of the

THE WITNESS:

All content that meets the

technology requirements is made active on the system, and I can't think of a way, at that time, that it could have been prevented. BY MR. SPERLEIN: Q. A. And is that different today? The one change that we have implemented

today that we do not have on that date is if a bit for bit copy is republished and it has already been

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canceled, then the new version, again, bit for bit, precisely the same, goes into a canceled state immediately. Q. A. When did that technology go online? I was going to say winter. I am really not

sure specifically. Q.

So late 2006, early 2007.

Prior to June -- end of June 2006, was

there any way to prevent Io Group works from appearing on the Veoh system other than Io Group reviewing the Veoh Web site and contacting Veoh with a request that the -- that any works posted on the site be removed? A. We would have responded to a -- and we did So in

respond to DMCA compliant takedown request.

the hypothetical case, when we had been contacted we could have responded. Q. Okay. Let me just ask you one question here. And this is marked

This is Exhibit No. 13.

with Defendant's Exhibit -- I'm sorry, Document Production No. 000781. e-mail. I want to specifically direct your attention to the middle of the page. There's a And it appears to be an

paragraph that reads "This would have caused me" -I'm sorry -- "This could have been caused by me

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taking down his copyrighted work, Ted responding to a DMCA request, our Russian helper being over aggressive, or other." This was written by Brad Seraphin. Do you

have any idea who or what he might be referring to by "our Russian helper being over aggressive"? (Plaintiff's Exhibit No. 13 was marked.) MS. GOLINVEAUX: I would point out for the

record that this appears to be a multipage e-mail and counsel has given us one page and it appears to fall in the middle of the multipage e-mail. THE WITNESS: There is a member of our

St. Petersburg team that works with Brad and Sabine. BY MR. SPERLEIN: Q. A. Trubanov. Q. That is fine. Thank you. Do you know his name? His first name is Gleb. I believe it is

And do you know if Gleb Trubanov was given the task of identifying material to be removed from the website for any reason? A. If Gleb finds content that violates our

terms of service, he can take it down. Q. Does that include material that appears to

be a blatant example of copyright infringement?

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MS. GOLINVEAUX:

Object to the form of the

THE WITNESS:

If any employee encounters

blatantly copyrighted material, they can take it down in compliance with our DMCA policy. BY MR. SPERLEIN: Q. I have handed you Exhibit 14 -- 006417 it Attorneys eyes

is marked "highly confidential.

only," but by stipulation of counsel it's been reduced designation to confidential. Will you take a

few minutes to look over the document. (Plaintiff's Exhibit No. 14 was marked.) THE WITNESS: BY MR. SPERLEIN: Q. A. Q. And is this a section of wiki? Yes. And I was told if I say "the wiki," I will Yes. Okay.

sound like George Bush saying "the Internets." That's why I was asking yesterday. Under "copyright violations," do you see that section? A. Q. Yes. It says "Veoh always responds immediately These will In addition,

to DMCA compliant takedown notices.

generally come from Dmitry or Francis.

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