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

Filing 107

Supplemental Declaration of Gill Sperlein in Support of Plaintiff's Motion for Summary Judgment 78 filed by IO Group, Inc. (Attachments: # 1 Exhibit Papa Deposition Excerpts# 2 Exhibit Dunning Deposition Excerpts# 3 Errata Shapiro Deposition Excerpts# 4 Exhibit Styn Deposition Excerpts# 5 Exhibit Bilger Deposition Excerpts)(Related document(s) 78 ) (Sperlein, Dennis) (Filed on 9/5/2007) Text modified on 9/5/2007 to conform to document caption post by cousnel (bw, COURT STAFF).

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

Doc. 107 Att. 2

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

________________________________ IO GROUP, INC., a California corporation,

) ) ) ) Plaintiff, ) vs. ) ) VEOH NETWORKS, INC., a ) California Corporation, ) ) Defendants. ) ________________________________)

Case No. C-06-03926 (HRL)

DEPOSITION OF TED DUNNING SAN DIEGO, CALIFORNIA MARCH 16, 2007

REPORTED BY RITA BURGESS, CSR NO. 8374

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

________________________________ IO GROUP, INC., a California corporation,

) ) ) ) Plaintiff, ) vs. ) ) VEOH NETWORKS, INC., a ) California Corporation, ) ) Defendants. ) ________________________________)

Case No. C-06-03926 (HRL)

DEPOSITION OF TED DUNNING, taken by the Plaintiff, commencing at the hour of 9:00 a.m. on Friday, March 16, 2007, at 530 "B" Street, Suite 350, San Diego, California, before Rita Burgess, Certified Shorthand Reporter, in and for the State of California.

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APPEARANCES: For the Plaintiff: THE LAW OFFICES OF GILL SPERLEIN BY: GILL SPERLEIN 584 Castro Street, Suite 849 San Francisco, California 94114 For the Defendants: WINSTON & STRAWN, LLP BY: JENNIFER A. GOLINVEZUX 101 California Street San Francisco, California 94111-5894 Also Present: Keith Webb

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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 Veoh? A. A. Q. question.

MS. GOLINVEAUX:

Object to the form of the

BY MR. SPERLEIN: Q. A. Q. Could you answer the question, please? He manages several engineers. Okay. The developers that you mentioned, this

is -- is that the entire development team -- well, let me strike that. Could you describe what a developer does? He writes software. Okay. So the three people that you mentioned

before write software for Veoh? A. Q. A. Q. That's correct. And do they report directly to you? Yes. Veoh. And how long have you been working for

Since before it was a company so, you know, from

the first phase. Q. A. Q. A. which month. Q. But you were there from the beginning, before the Okay. I don't remember the exact date. Do you remember what year or month? It would be 2005, but I don't recall exactly

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beginning? A. Q. Yes. Did you know Dimitry Shapiro prior to coming

together for this project? MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. A. Q. You can answer. No. Did Mr. Shapiro contact you and ask you if you Object to the form of the

would work with him on this project? A. Q. Yes. Are you familiar with Veoh's policies regarding

copyrighted material? A. Q. Some of the policies. And are you familiar with Veoh's policies

concerning sexually explicit material? A. Q. Some of the policies. Will you describe briefly in your own words what

Veoh Network does, what its mission statement is? MS. GOLINVEAUX: question; it's compound. BY MR. SPERLEIN: Q. A. You can go ahead and answer. The mission statement? Object to the form of the

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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 I'm --

Q. A.

Yes, sir. Our goal is to allow people to publish video on

the internet. Q. And how do you accomplish that? How does Veoh

accomplish that goal? A. We write software that helps them download videos

that other people have published and software that manages that video so that it can be presented in an efficient fashion. Q. Okay. And specifically, how does that operate?

Do you -- does Veoh operate a web site? A. Q. A. Yes. And what is your URL for that web site? The primary group domain for that is

www.veoh.com. Q. And Veoh uses computers in the -- in its efforts

to allow people to publish videos; is that correct? A. Q. Yes, we use computers. Okay. Are there -- can your computer systems be

divided into several different systems? Do you want me to clarify a little bit what

A. Q.

I would love you to. Okay. Veoh.com is a web site, and presumably is

run from some sort of server; is that correct?

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A. Q.

That's correct. Do you have a separate network at Veoh that you

use for -- within the office for the exchange of e-mails or accounting systems, things like that? MS. GOLINVEAUX: question. THE WITNESS: There are many sub networks as is Object to the form of the

typical in any network environment. BY MR. SPERLEIN: Q. Would you tell me what you would consider the

primary three or four networks? A. Q. A. Primary, in what sense? Primary as in the most important to the company. The most important would of course be the Secondary would be the internal networks That would definitely be the

external internet.

at the co-location facilities. top three or four. Q. facility is? MS. GOLINVEAUX: question? BY MR. SPERLEIN: Q. facility is? A.

Will you explain briefly what a co-location

I'm sorry.

Could you repeat the

Will you explain briefly what a co-location

It is a computer facility maintained by a company

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which rents out space and access to networking. Q. And in that situation, does -- they just provide

the computer space, but does Veoh control how that -- how those computer systems are programmed? MS. GOLINVEAUX: question. THE WITNESS: A co-location facility provides Object to the form of the

space, and whoever rents the space controls whatever computers that they place in the space. BY MR. SPERLEIN: Q. Okay. I want to go through now what happens when

someone wants to publish a video on the Veoh system. What is the first step that if I were an individual and I had a video file that I wanted to publish, what would I have to do to publish it through the Veoh system? A. There are two primary mechanisms. One is you can

upload smaller videos using a browser.

Larger videos require

the use of software that we have written in order to manage the upload in the event of network errors and similar corruptions. Q. Starting with the first type that you mentioned,

smaller videos, is there a size limitation on that? A. I don't know if there are precise size

limitations on that.

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Q. a moment.

If I went to the web site -- let me back up just

If I wanted to upload a smaller video file, would I have to go to the Veoh.com web site? A. If you would like to upload a small video file,

you can go to the Veoh web site. Q. And what would other possibilities be for

uploading a small video file? A. software. Q. If I were using the web site would I first have If you already have our software, you can use our

to register with Veoh.com? MS. GOLINVEAUX: question. THE WITNESS: requirements. I believe there's some registration Object to the form of the

I'm not sure of the details.

BY MR. SPERLEIN: Q. A. Q. Do you know any of the procedure at all? I have not uploaded a video in many months. Would the process of registration be something

that would be programmed by someone in your department? A. somebody. Q. Would it be someone from your developing -Any registration process would be programmed by

development team?

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Media digital rights management has ever been hacked or -- if I use that terminology, will you understand what I'm asking? Has anyone ever been able to break that system and copy videos that were protected with it to your knowledge? A. I know that at least one version of Windows Media I don't know if other versions have

audio has been hacked.

been hacked, and I don't know if video has been hacked. Generally, I know it's a fairly secure system. Q. If a publisher elects to have his video

protected, then Veoh attaches the Windows DRM protection; is that correct? A. Q. Yes. And when that occurs, then, if other users

download that video to their system, they, in theory, are not able to make a copy of that video file; is that correct? No, it's not. Let me rephrase the question.

There are limitations on how and when a video file would be copied; is that correct? A. No. It's generally incorrect as well. Copying

itself is not constrained. constrained. Q.

It's usually playing, which is

A little bit later we're going to get in to some

questions about how Veoh has handled video files that contain sexually explicit material, but for right now I just want to ask you a couple of questions relating to that.

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Was there a time when Veoh allowed publishers to submit and publish video files that contain sexually explicit material? A. Q. There was a time. And was there a time when Veoh ceased permitting

sexually explicit videos on its system? A. Q. There was also a time that we ceased to. At that time when Veoh elected to prohibit adult

videos or sexually explicit videos from being on the Veoh system, did Veoh use the function that we're talking about, whereby they could go to a user's computer and have a video file deleted and thereby erase existing adult video files from users who had already downloaded it? A. I think so, because I think we got some

complaints about that happening, so I didn't -- I didn't perform that take down, but I think I saw complaints about it happening. Q. Would you know how Veoh would have identified the

adult material that they wanted to remove from the system? A. There's a database flag which indicates,

presumably indicates, whether or not something is explicit. Q. from -A. Q. Flag. Flag. Okay. When you say a database tag, this is different

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an intermediate and a sexually explicit? A. The number of active levels has varied. It's an

integer, so there's a very large number of potential levels. Currently there are two levels and neither of them is explicit, because we do not allow explicit material. Q. Okay. So currently when a producer is going

through the data entry process, you said there are two levels that they are allowed to choose from; is that correct? A. Q. A. I believe so. Do you know what those are? I think that they are suitable for all audiences,

or contains -- and I don't know what the language is, but some material that would not be suitable for all audiences. Q. A. Contains nudity or -I don't know what the details are, but there are

presumably non-sexually explicit things that are not appropriate for all audiences. well. I don't know how to say that

It's a difficult thing to say. Q. That's okay. I think we got the idea.

If a user currently selects the second one that you described, it may have material that's not suitable for all ages, does Veoh then review the video clip to make sure there's no explicit, sexually explicit material on it? A. Q. No. Does Veoh or somebody else, do they engage some

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