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

Filing 80

Declaration of Gill Sperlein in Support of Plaintiff's Motion for Summary Judgment on Liability re 78 filed by IO Group, Inc. (Attachments: # 1 Exhibit Papa Declaration Excerpts# 2 Papa Deposition Ex. #3# 3 Papa Deposition Ex. #11# 4 Papa Deposition Ex. #16# 5 Dunning Deposition Excerpts# 6 Shapiro Deposition Excerpts# 7 Shapiro Deposition Ex. #5# 8 Styn Deposition Excerpts# 9 Bilger Deposition Excerpts)(Related document(s) 78 ) (Sperlein, Dennis) (Filed on 7/31/2007) Text modified on 8/7/2007 to conform to document caption post by counsel (bw, COURT STAFF).

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

Doc. 80 Att. 1

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 1 of 88

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

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

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 2 of 88

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

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.

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 3 of 88

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

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

3

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 4 of 88

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

Page 5

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

4

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 5 of 88

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 A. Q. BY MR. SPERLEIN: Q.

JOSEPH PAPA, having been duly sworn, testified as follows:

EXAMINATION

Good morning, Mr. Papa.

My name is

Gill Sperlein.

I'm the attorney for Io Group.

Let me start off by asking you just a few questions about the process here. Have you ever been deposed before? No. Okay. It is -- our conversation today --

I'm going to ask you questions and ask you to respond to them. You are under oath as just indicated. But

our conversation's going to be a little different from day-to-day conversation, mostly because the court reporter is recording everything that we say. Fortunately that doesn't happen in your regular life. So it is common for people to respond with a shake of the head or a yes or a kind of a verbal sound that may not really be a yes or a no, something in between. What I am going to ask you to do is to And if it

respond to each of my questions verbally.

requires a yes or no, to use a yes or no rather than uh-huh or something like that.

5

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 6 of 88

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

ask it in a very clear way. Windows 2000? A. Q. Yes. Thank you.

Would it also work on

And currently you are the director of product development; is that correct? A. Q. That's correct. I assume your duties broadened even further

at that point; is that correct? A. Q. No. No. Are you still responsible for product architecture under that new title? A. Q. Yes. Were there any specific new

responsibilities that you took over when you became director of product development? A. Q. A. Q. No. Was that new title considered a promotion? Yes. And was it a promotion designed to

recognize that you were an important part of the company? A. Q. I don't think I can answer that properly. Okay. Fair enough.

10

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 7 of 88

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

When a user wishes to upload a video onto the Veoh server or -- I'm sorry -- onto the Veoh system, what steps does the user have to take to accomplish that task? A. They have to navigate to veoh.com in their They have to select the uploading tab.

web browser.

They have to pick the video file off their local system. They have to enter the title and description

of the video, and then they press "okay," and the file will be transferred to their system. Q. Okay. You said they had to enter the title Are those

and description of the video file. required fields? A. Q. A. Q. A. Yes. Now, before -Can I correct that? Absolutely. Title is required.

I believe description

is optional. Q. And that brings up another point. If at

any point during the day you realize that you gave an incomplete answer or maybe something that wasn't quite right, feel free to bring that to our attention and we can take your corrected answer and make sure it is on the record.

11

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 8 of 88

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

A. Q.

Okay. Before the user is able to pick a video

file off of their system and upload it to Veoh, are they required to register with Veoh? A. Q. Yes. And are they required to download the Veoh

client onto their system before they can upload a video? A. Q. No. Are users only able to upload video files

to the Veoh system as opposed to any other type of file? A. Q. Only video. Only video. If a user attempted to upload a software file, what would happen? A. Q. It would be rejected. Would they get a message that said it was

being rejected? A. Q. Yes. Do you know exactly what that message would Do you know

say -- or I shouldn't say "exactly."

approximately what the message would say? A. Q. Approximately it says "unknown codec." So is the codec what the system would look

12

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 9 of 88

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

for to determine if a file was in a proper format to be loaded? A. loaded"? Q. That it was in a file format that the Can you clarify "proper format to be

system could accept. MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. can. A. Q. Can you just repeat it? You said earlier that if a user attempted You can go ahead and answer as best you Object to the form of the

to upload a software file, that the user would get a message that would say "improper codec" or something to that affect; is that correct? A. Q. That's correct. For what reason would that message be

generated? A. To communicate to the user that the file

they uploaded is not a video file. Q. with it? A. Q. Yes. Let's take a moment to clarify what a codec Do all video files have a codec associated

13

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 10 of 88

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

is.

Could you tell me, in relatively simple layman's

terms as you can, what a codec is? A. Q. A codec is a compression scheme. So codec is used to compress video files so

that it can be transferred more quickly; is that an accurate statement? A. Q. Yes. Do files that are not video files ever

contain codecs? A. Q. Yes. Are the codecs that are used with video

files unique to video files? A. Q. They can be. Are there some codecs that work with both

video and other types of files? A. Q. A. Q. Yes. Can you give me an example? MPEG-2. An MPEG-2 is able to be used with video

files as well as some other type of file? A. Q. A. Q. Correct. And what type of file is that? Audio. If a user were to attempt to upload an

audio file that had an MPEG-2 codec, would the user

14

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 11 of 88

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

get the same message from Veoh rejecting the file? A. Q. Yes. And how is the system able to determine

that that is an audio file and therefore reject it as opposed to a video file? A. codec. Q. Just for clarification, the audio file can An audio file doesn't contain a video

contain a codec that is an MPEG-2 codec? A. Q. video? A. Q. Correct. Okay. Thank you. Correct. And can MPEG-2 codec be either audio or

So to just summarize this area and clarify, Veoh does not accept any files that are not video files; is that correct? MS. GOLINVEAUX: question. THE WITNESS: BY MR. SPERLEIN: Q. Can users upload any files that are not Can you clarify "accept"? Object to the form of the

video files to the Veoh system? MS. GOLINVEAUX: THE WITNESS: Object to the form.

Users can upload anything

15

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 12 of 88

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

they choose.

If it is not a video file, they will

get the "unknown codec" message. BY MR. SPERLEIN: Q. Will the Veoh system accept any files that

a user attempts to upload that are not video files? MS. GOLINVEAUX: Object to the form of the

question and still vague and ambiguous. THE WITNESS: by "accept"? BY MR. SPERLEIN: Q. By "accept" I mean allow the file to be Can you clarify what you mean

transferred onto the Veoh system. MS. GOLINVEAUX: Sorry. With that

clarification can you read back the question? MR. SPERLEIN: I will ask it once more. Sure.

MS. GOLINVEAUX: BY MR. SPERLEIN: Q.

If a user attempts to upload a file that is

not a video file, will the Veoh system allow that video file to transfer to the Veoh system? A. Q. Yes. And if it is not a video file, what will

the Veoh system do at that time with that file? MS. GOLINVEAUX: BY MR. SPERLEIN: Asked and answered.

16

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 13 of 88

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

Q. A.

Would you answer the question? It will attempt to recognize the audio and

video codec in the file. Q. Okay. And if it is not a codec that is

associated with video, what will the Veoh system then do with that file? A. The file stays in the video system and is

marked as "unknown codec." Q. And how long will the Veoh system continue

to keep that file on the system? A. Q. Our current policy is 90 days. After 90 days -- strike that. Is there anything that might occur during that 90 days that would cause Veoh to maintain the file beyond that 90 days? A. unknown"? Q. A. Correct. 90 days is our policy, but we don't have a No For a file that has been deemed "codec

guarantee that it happens at the 90-day mark. less than 90 days is the policy. Q.

What is the reason for maintaining those

files at all? MS. GOLINVEAUX: I would object. To the

extent the answer would call for the witness to

17

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 14 of 88

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

whether or not to eliminate those files. Q. Does the operations team routinely

eliminate files, or does the operational team make specific decisions about specific files for deletion? MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. Mr. Papa. A. Q. Okay. After the files have been made available I'm going to rephrase that for you, Object to the form of the

for deletion by the operations team, does the team evaluate each individual file to determine if it should be eliminated or not? A. No. MS. GOLINVEAUX: Mr. Sperlein, I am going

to stop you for a moment and ask you -- as you know, Mr. Papa is here to designate on behalf of Veoh on matters specified in your notice, and which matter does this extended topic fall under? MR. SPERLEIN: files to Veoh. MS. GOLINVEAUX: I think your topic was a The process of uploading

process of uploading video files to Veoh. MR. SPERLEIN: I think this is included

22

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 15 of 88

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

it? A. Q. No. You said that Veoh -- that you value Veoh Does that mean that the more

based on registrations.

users are registered with Veoh, the more valuable Veoh is? MS. GOLINVEAUX: THE WITNESS: complicated. Object to the form.

Valuing any company is

User registrations are one way to

measure our growth. BY MR. SPERLEIN: Q. In addition to users uploading video files

onto the Veoh system, do video files -- are video files placed on the Veoh system by nonusers? A. Q. Define users. Does Veoh itself ever load or add content

onto the Veoh system? A. Q. Yes. Under what circumstances would Veoh add

video files to the Veoh service? A. We produce a series called Viral, and there

are a variety of promotional videos produced by our marketing department. Q. Are those promotional videos, videos that

promote Veoh?

28

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 16 of 88

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

A. Q.

Correct. Are there promotional videos that promote

anything else? A. Q. No. Does Veoh ever obtain content from other

companies which Veoh employees then load onto the Veoh system? A. Veoh has a content programming team that is

responsible for relationships with content providers. Q. And when the content and programming

team -- does the content and programming team obtain content from other individuals or companies to play on the Veoh system? MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. Is there content that is associated with -Object to the form. Sorry.

Can you repeat it?

strike that. Does Veoh itself upload content other than the Viral series and promotional videos onto the Veoh system? A. Q. A. Yes. Under what circumstances? The content -- if the content team has a

relationship, and that relationship merits personal

29

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 17 of 88

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

attention, then we have uploaded content for third parties. Q. Can you give me any examples of such

situations? A. Unfortunately I don't know any names. I am

just involved on the technology side. the company names, for example. Q.

I don't know

Do you know if Veoh uploads any content on

behalf of Turner Broadcasting? A. We did load content on behalf of Turner

Broadcasting. Q. At some point in the past did Veoh obtain

content from video bloggers that had RSS feeds? A. Q. Yes. And did Veoh upload that content onto the

Veoh system? A. Veoh"? Q. A. Q. Can you clarify what you mean by "did Are you speaking did a person, an individual? Someone on behalf of Veoh? No. Did Veoh develop technology that would

spider video blogs to obtain content? A. Q. Yes. Do you know if Veoh asked permission to use

the content that those spiders obtained?

30

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 18 of 88

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 "ask"? that.

MS. GOLINVEAUX: THE WITNESS:

Object to the form.

I don't know the answer to

BY MR. SPERLEIN: Q. Going back to individual users that upload Does Veoh ask those

content onto the Veoh system.

users if they have permission -- strike that. Does Veoh ask users if they own the content that they're uploading onto the Veoh system? MS. GOLINVEAUX: THE WITNESS: Objection to the form. What do you mean by

"Ask"?

BY MR. SPERLEIN: Q. During the upload process, are users

required to respond to any questions about the video file that they are attempting to upload? MS. GOLINVEAUX: THE WITNESS: Object to the form.

Users have to agree to our

terms of service prior to uploading. BY MR. SPERLEIN: Q. Okay. And earlier you said that users are

required to input a title for the video file before they uploaded it; is that correct? A. Q. That's correct. And you also said earlier that users have

31

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 19 of 88

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

A.

It let's the publisher assign keywords to

the video. Q. And can users later use those keywords to

help them search for video files on the Veoh system? A. Q. Correct. Are there any other fields that users are

given the option of filling in information for? A. Q. A. Q. They can assign it to a series. Any others? Not that I can recall. Can users associate it with a channel --

strike that. Can users associate it with a category? A. Q. Yes. Can you recall any other information that

users are allowed to fill in during the upload process? A. Q. No. Is there a question -- let me start over. Does the interface ask the user at that time if they have permission to upload the video file? A. They have to reafirm they agree to the

terms of service. Q. Other than that, are users specifically

33

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 20 of 88

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

asked at that time if they have permission to upload the video file? A. Q. time? A. Q. No. Are users asked for their telephone number Not that I recall. Are users asked for their address at that

at that time? A. Q. No. Are users asked if the video file has been

registered with the U.S. Copyright Office at that time? A. Q. No. Are users asked for a copyright

registration number at that time? A. Q. No. Are users asked if they have a license to

distribute the video file at that time? A. Q. They are asked to reafirm the terms of use. Are they asked if they have a license to

distribute the file? A. Q. Not specifically. Are they asked for -- to upload a copy of

any document that shows ownership of the video file? A. Upload a document? No.

34

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 21 of 88

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

Q.

Does Veoh have a system for reviewing some

video files on its own accord that are available on the Veoh system. MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. Procedure. So let me rephrase. Object to the form.

What do you mean by "system"?

Does Veoh have procedures in place for reviewing certain video files? A. The content and programming team has

procedures to confirm that all the content is within our terms of service. Let me rephrase that. content team has procedures. I am aware that the

I don't participate in

those procedures, and they don't review all content. There's a few mechanisms by which they would review content. Q. Do you know how they determine which

content will be reviewed? A. My understanding is that they will

periodically review recently published videos to confirm that they are within our terms of service. We also have a community feature where users will communicate to us if a video is inappropriate. Q. You said the content and programming team

36

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 22 of 88

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

is successfully ingested into the system it is marked active and that when it is active, then it will show up on the recently published area; is that correct? A. Q. A. Q. That's correct. How long does the video file remain active? Indefinitely. So does that mean that a video file is

indefinitely on the recently published area? A. Q. No. So what I want to know is how long a video Can you

file stays in the recently published area. respond to that? A. Q. It is not based on time duration.

Is it based on a number of different

factors that are considered in tandem? A. Q. No. Is it a raw number? Is it the last

100 videos that have been published, for example? A. The main page contains the last 20 videos

published. Q. Can users of the Veoh system go to a second

page to see the next 20 or so? A. Q. Yes. So if something is marked recently or if it

is in the recently published area, is that just a

39

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 23 of 88

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

mechanism for showing order in which the video files came into the system most recently? A. Q. It does show that, yes. So understanding that there may be some

variation the general idea is that the video at the top of the most recently published list is the most recently published video that came onto the system; is that correct? A. Q. A. That's correct. And then you can go on through -Actually that is not correct. It is the

most recently published video that is marked active. Q. And let's go back to that. Before, you

said that a video file is marked active after it is ingested into the system. Can you tell me what all

has to be completed in the process before a video file is marked active? MS. GOLINVEAUX: MR. SPERLEIN: Object to the form.

I am going to strike that

because I think we have those answers. BY MR. SPERLEIN: Q. To clarify your earlier statements, the

content and programming team periodically reviews the video files to determine if they are consistent with Veoh's terms of service; is that correct?

40

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 24 of 88

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 process?

MS. GOLINVEAUX: BY MR. SPERLEIN: Q.

Object to the form.

We were most recently speaking about how

the content and programming team performs periodic reviews of video files or the metadata video files currently. Going back to the area of June 2006, did

Veoh have any similar review type of process in effect at that time? MS. GOLINVEAUX: THE WITNESS: Object to the form.

Similar to the current

BY MR. SPERLEIN: Q. A. Yes. We would periodically review most recent to

verify that the videos were in accord with the terms of service. Q. And were you personally involved in the

process at that time? A. Q. Yes. So just to clarify, you personally -- did

you personally periodically review recently published video files to determine if they were compliant with Veoh's terms of use? A. I would periodically review the most recent

to confirm that they applied -- were acceptable.

48

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 25 of 88

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

Q.

So there is no mechanism for marking that a

video file had been reviewed for terms of service violations; is that correct? A. Q. That's correct. So when you reviewed the video files -- or

when you reviewed the most recently published page looking for violations, what types of things were you looking for at the time? A. Q. Pornographic content. And if you saw something -- let me clarify

something for you -- or with you. The word "pornographic" is a little bit ambiguous and under some people's estimation. Were

you looking for video files that contained sexually explicit material? A. Q. Yes. And what about mere nudity? If there was

just one picture of a woman or man who was unclothed, would that be something that would cause you to take a closer look? A. Q. Yes. And if you witnessed a thumbnail that

clearly showed sexually explicit activity, what would your next step be? A. I would select the video and it would be

52

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 26 of 88

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

taken to the -- what we call the video details page which is where the video was presented. And then I

would select the edit function, and then from that page I would cancel the video. Q. And to clarify the time frame -- let's

narrow down to the first two weeks of June 2006, June 1st to June 15th. If you saw a sexually explicit

video file that contained sexually explicit material at that time, would you select the edit page and delete the video file? A. I don't recall when we stopped permitting If those two weeks were

sexually explicit content.

prior to that, then I would confirm -- rather than cancal the video, I would confirm that the rating was adult. Q. And if the rating was adult, would you take

no further action? A. Q. adult? A. So when viewing the most recent page I So I would change the rating. If the rating were correctly indicated as

would do that with the content filter turned on.

my expectation would be that there would be no adult. So the presence of adult implies that it was improperly rated.

53

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 27 of 88

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

referred to as the most recent page? A. Q. Yes. So once you were on the most recent page

you would limit your search results so that only video files that were not marked as adult would show up; is that accurate? A. Q. Yes. You turn the content filter off.

And then you would review those video

files, you would look at the thumbnails and metadata on that page; is that correct? A. Q. correct. Did that process allow you to review for

any terms of use violation other than improperly designating the adult category for a video file? MS. GOLINVEAUX: question. THE WITNESS: BY MR. SPERLEIN: Q. A. Q. I'm sorry? Which other violations? Did that process allow you to check for What other violations? Object to the form of the

anything else? MS. GOLINVEAUX: THE WITNESS: Same objection.

On rare occasion there would

be a violent video that was clear.

94

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 28 of 88

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

BY MR. SPERLEIN: Q. And was your process the same there as if

it were miscategorized. A. Q. No. That would result in the cancellation.

On a cancellation, what happens to the

video file? A. For a terms of use cancellation it is So it was no longer available on

marked as canceled. the site. Q. A. Q. A.

And is that different from deleted? Yes. And what happens if it is deleted? Deleted refers to physically removing the Cancellation refers to the logical

file from disk.

state in the database. Q. If Veoh deletes a file, does it also delete

that file from the computers of individuals that have downloaded the Veoh client? A. That capability exists, and it depends on

circumstances. Q. So to be clear, Veoh does have the

capability of removing video files that are on the users' computers if those video files were obtained through the Veoh system? A. Correct.

95

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 29 of 88

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

Q.

During your -- at any time when you were

reviewing video files through the most recent video page, did you ever cancel a video file for any reason other than the video file being violent? A. I canceled beastiality and child

pornography. Q. And when you did that, were those files not

marked as adult by the user that uploaded the file? A. Q. Correct. Did you ever cancel a video file because

you thought it was an instance of copyright infringement? A. Q. A. Q. Have I personally ever deleted a file? Yes. Yes. Can you give me an example of what files

you have deleted? A. Q. A. What time frame are we speaking of? This is anytime? Anytime. I deleted a copy of 300 that was

available on the site -- or, excuse me, I canceled a copy of 300 that was available on the site. Q. A. And why did you cancel that? I was in the process of testing some new I happened to

functionalty, and I encountered it.

96

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 30 of 88

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 would say that all employees are expected to comply with the DMCA policy. conversation. Q. Under your DMCA policy -- let's start with But I can't recall a specific

currently -- is it Veoh's policy to remove a video file for copyright violation in the absence of a notice from the owner of that video file to take it down or someone acting on behalf of the owner? A. There are circumstances which Veoh

employees may take down content absence of a form of takedown request. Q. A. And what are those circumstances? If in the course of using veoh.com somebody

encounters blatantly copyrighted material, then they can take it down, but they need to follow the guidelines for doing so, which includes communicating to our internal DMCA designate and keeping a written record of what was done. MS. GOLINVEAUX: I want to object and move

to strike to the extent the witness testified about "blatantly copyrighted material" as he's not a legal expert and would constitute an opinion. BY MR. SPERLEIN: Q. When you took down 300 -- or canceled the

video file of the movie 300, you testified that that

100

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 31 of 88

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

was at the same time that the video was actually playing in theaters; is that correct? A. Q. That's correct. Would you consider -- did you consider that

a blatant copyright violation? A. Q. I did, yes. Can you tell me other factors that would

indicate to you that something is blatantly copyright infringing? MS. GOLINVEAUX: legal opinion. THE WITNESS: BY MR. SPERLEIN: Q. A. And how is that a factor? Videographers will often use clips of this Duration is a factor. Object. It calls for

or that, you know, editorial content that likely constitutes fair use. So we don't -- I don't

consider that -- if it is a complete copy and that I am aware that it is something that would be an extreme stretch for one of our users to own the rights to and it is not a user who I know that we have a relationship with on the content side, those factors would weigh into my personal determination and opinion as to what is blatant. Q. Okay. I want to break those down a little

101

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 32 of 88

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

bit.

The first thing you said was the duration of

the clip; is that correct? A. Q. Uh-huh. Or duration of the file. And it is your

opinion that if the video file is there in its entirety that is a factor that goes towards showing that it may be copyright infringement; is that accurate? MS. GOLINVEAUX: legal conclusion. THE WITNESS: My opinion is if the video is Objection. Calls for

there in its entirety, that content publisher has a weak fair use argument, and so that is a factor. BY MR. SPERLEIN: Q. So is it your opinion that if someone puts

a shorter clip, even if they don't have permission, it may be legal because there may be a fair use argument; is that what you are saying? MS. GOLINVEAUX: conclusion. THE WITNESS: My opinion of blatant -I would say it is -- for Object. Calls for legal

well, let me rephrase that.

me personally, it is very difficult to determine if a clip is violating somebody's copyright. BY MR. SPERLEIN:

102

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 33 of 88

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

Q.

Okay.

But there are some factors that you

believe make it easier to make that determination; is that correct? We've talked about at least one

factor, the fact that the movie is still playing in the movie theater. Is that -- let's focus in on that for just a second. The fact that 300 was still in the movie

theaters was an indicater to you that the copy that was submitted to Veoh was not likely there with the permission of the owner; is that correct? A. Q. That was one factor, yes. And is that because it is not a very common

business practice for movie distributors to give away their movies in there entirety by some other channel when they are still trying to get sales from theater attendance? MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. Let me ask you why you think that's a Object to the form of the

factor that shows a likelihood of copyright infringement. A. Knowing that we don't have a relationship

with that publisher and knowing that the entire content in it's entirety did not constitute something

103

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 34 of 88

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

promotional that may have been published by somebody with permission, in my opinion, that led me to determine that it was blatantly copyrighted. Q. Are you generally aware of who Veoh has

relationships with, with regard to content, and who they don't? MS. GOLINVEAUX: Mr. Sperlein, can you

direct me back to where in the 30B6 where this -which topic this is? MR. SPERLEIN: If you look at 22, it is the

policies for preventing copyright infringement. MS. GOLINVEAUX: do with this question? MR. SPERLEIN: It has to do with, if there And what does that have to

is a policy about blatant copyright infringement, I want to know how the determination is made to exploit. MS. GOLINVEAUX: question, please? (Record read.) MS. GOLINVEAUX: I will make the objection Would you read back the

that this is outside the scope of the topics for which this witness has been desinginated and to that extent that would count as his personal testimony rather his testimony of Veoh.

104

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 35 of 88

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

THE WITNESS:

Repeat.

(Record read.) THE WITNESS: BY MR. SPERLEIN: Q. Have you discussed with other employees of I am generally aware, yes.

Veoh what may be an example of blatantly copyrighted infringement? MS. GOLINVEAUX: Object to the extent it

would require the witness to disclose attorney-client communications. I would instruct him not to answer. I am not going to answer.

THE WITNESS: BY MR. SPERLEIN: Q.

Would you feel that it would help you to

determine if something was an example of copyright infringement or not if you knew the producer of the video clip that appeared on Veoh? MS. GOLINVEAUX: legal conclusion. THE WITNESS: If I knew that Veoh had a Objection. Calls for

relationship with the producer, then that would clearly mean it was not problematic. BY MR. SPERLEIN: Q. Did Veoh ever implement a policy that

allowed users to be community editors? A. No.

105

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 36 of 88

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

Q. A.

Of 2007 or -- no -2006 through now it has grown quite

substantially. Q. Has Veoh reconsidered the possibility of

using community editors now that there is a significant community? A. I have not been involved in any discussions

about doing that. Q. Okay. When a Veoh employee is reviewing

a video file in the video editor page, can the employee tag the video file in such a way that the places on the Veoh system where the video file appears are limited? A. Q. Yes. And for an example, if a video file

contains nudity, but is within Veoh's terms of use, can a Veoh employee mark that video file in such a way that it would not appear on Veoh's home page? A. Q. Yes. And if that is done, are there a number of

areas on the Web site where that video file would not appear? A. popular. Q. Is there only one -- strike that. My recollection is home page and most

113

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 37 of 88

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

Q.

When a user goes to the home page of

Veoh.com, does Veoh immediately recognize the computer that that user -- based on the computer that the person is using, regardless of whether they've registered or not? A. Q. What do you mean "recognize"? If a computer has been used to visit

Veoh.com previously, and someone on that computer comes back to veoh.com, does Veoh recognize the computer -- recognize that that person is returning to Veoh and change the interfacing anyway because of -- or based on his earlier visits to the Web site? A. I am not aware of the interface changing

for first time versus repeat visitors. Q. And when a user goes to the video home

page, is there a -- does the video file immediately launch in the Flash Player? A. Q. Yes. And what determines which video file plays

when a user goes to the home page? A. videos. Q. They select which videos will play on the Content and programming team select the

home page? A. Correct.

115

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 38 of 88

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 all.

Q.

And is it at any given time the same for

all users on the system? A. There's different kinds of users. There's

registered users and not registered users. Registered users get their own recommendations. Nonregistered users get the home page that is programmed by the content team. Q. If a user goes to veoh.com and is

registered, but does not log in on this new visit, does Veoh recognize that person as the registered user based on the IP address that they are coming from; or does it see that user as a new user -- or an unregistered user? A. Sorry.

I don't believe the IP address is used at

Q.

Does the user have to be registered to view

video files? A. Q. No. Are the ads served by Veoh generated based

in part on what video files a user has viewed? A. Q. A. Q. Has viewed? Has viewed. No. I want to clarify that. If a registered

user is on veoh.com, does Veoh keep track of the

116

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 39 of 88

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

video files that that user has viewed? A. Q. Yes. And does Veoh have the capability of

distinguishing which ads they want to show to that user based on what his interests might be based on what video files that he's watched? MS. GOLINVEAUX: question. THE WITNESS: Ads on video do not take into Object to the form of the

account user viewing history. BY MR. SPERLEIN: Q. Does Veoh make recommendations of other

videos that the user might wish to view based on his past viewing history? A. Q. Yes. Are there any advertisements on the Veoh

system that are served in the same manner as video files? MS. GOLINVEAUX: Sorry. Mr. Sperlein, can

you direct me back to our 30B6 notice and just what related topics you are talking about? MR. SPERLEIN: With regard to whether they

are treated like other video files, it would be under Section No. 5, which is -MS. GOLINVEAUX: Whether what is treated as

117

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 40 of 88

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

Let me show you another exhibit we will mark Exhibit 3. Okay. This is Defendant's

Exhibit -- or I'm sorry, Document No. Veoh00196 and 197. It appears to be an e-mail from Dmitry Shapiro,

D-m-i-t-r-y, S-h-a-p-i-r-o, to Joseph Papa, from August 24th, 2006. Do you recall this e-mail, Mr. Papa? (Plaintiff's Exhibit No. 3 was marked.) THE WITNESS: I can't say I can recall it,

but it is clearly to me, so -BY MR. SPERLEIN: Q. And just to clarify, if we go down a bit, And the e-mail

it is actually -- this is a response.

trail further down shows that -- some comments that were made by you. A. Q. Yep. But at the very top here the part that

appears to come from Dmitry Shapiro to you it says, "Send him an e-mail back. We listened to him and we

took it off the home page." Would this be an example of a video file that was marked so that it wouldn't show up on the home page or the most popular sections? A. I can't recall if that same mechanism was I would speculate that that is true.

used here.

121

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 41 of 88

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

Q.

Is there any other mechanism that would

achieve that same task of keeping the video on the system while at the same time not making it available on the home page? A. Just time. More videos are published and

it is bumped off the home page. Q. Okay. And when you look down at the body

of the original e-mail that came to you, is this e-mail dealing with a video that a user found offensive but was not necessarily violative of the terms of use? A. Q. I think that is accurate. If it was a violation of the terms of use,

would the video have been canceled rather than just taken off the home page? A. Q. Yes. Thank you. Going back to the idea of reviewing, indexing, and categorization to make sure it is accurate, do you know if Veoh ever had a policy in the past where Veoh's employees checked categorization to make sure that it was appropriate? A. Q. A. "A policy" was the question? Yes. I am not aware of a policy for

122

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 42 of 88

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

categorization. Q. Were there any procedures in place for

reviewing categorization to make sure it was appropriate? A. Categorization" is somewhat ambiguous. Do

you mean something very specific in the Veoh system? Is that what you are referring to? Q. I am talking about specifically which

categories are associated with the video file in the Veoh system. A. sorry. Q. Did Veoh have a procedure for reviewing the Okay. Can you repeat the question? I'm

categorization as done by the users when they uploaded to make sure that that categorization was accurate? A. Q. I am not aware of a procedure for that. Are you familiar with procedures for

transforming user submitted video files into Flash format. A. Q. Yes. Is that an important area of your job

function at Veoh? A. Q. Important area? Are you directly involved with that

123

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 43 of 88

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

process? A. Q. Yes. Are all video files that are submitted to

Veoh transcoded into Flash format? A. Q. No. In what circumstances would a video file

not be transcoded into Flash format? A. If the format of the video file is not

compatible. Q. And in that case it would be -- it would be

marked as noncompatible and possibly maintained for up to 90 days? A. Q. Correct. If a video file is in a compatible format,

is that video file then transformed into Flash format? A. Q. Yes. Are there any other exceptions to what

would be -- what video files would be transcoded into Flash format? A. format. Q. A. Q. All what kind of videos? Valid videos. Is the entire video file transcoded into All valid videos are encoded into Flash

124

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 44 of 88

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

Flash format? A. Q. Currently, yes. Was there a different policy in the past

where the entire video file was not transcoded into Flash format? A. Q. Yes. Why are video files transcoded into Flash

format after they are submitted to Veoh? A. Adobe's Flash player has something like

98 percent penetration in the browser market, so a video formatted into Flash can be played by just about anybody on the Web. Q. When a viewer views a video file through

the web-based application at veoh.com, is the video file the person is viewing in Flash format? A. Q. Is the video file in Flash format? Yes.

Does Veoh make more than one flash -- does

Veoh make more than one Flash formatted file for playing through the Veoh system for each video file? A. Q. Under some circumstances, yes. Are some video files transcoded into a

higher and a lower resolution version? A. Q. A. Some files are, yes. Is it ever anymore than two versions? Only two Flash versions.

125

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 45 of 88

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

Q.

What is the purpose for -- strike that.

Let me ask a different question. When there is two Flash format versions made, is the only difference between those two versions the resolution? A. Q. And the codec. And what is the purpose for making two

different types of Flash format files? A. Publishers that are in our Pro program get It is a value

the higher quality version generated. added to the service. Q.

It the Pro Publisher service is a service

whereby the publisher can actually earn revenue from his video file on Veoh? A. Q. Correct. Is there software associated with

transcoding the original video file into a Flash format file? A. Q. A. engine. Q. And does Flix engine come with preset Yes. And what software does Veoh use? We use a commercial product called, Flix

options for specifications? A. I don't know.

126

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 46 of 88

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 in?

Q. Flix? A.

Does Veoh use preset specifications from

We have a standard format for both the low

and high res. Q. What bit rate are the Flash files set up

A. rate.

512 kilobits per second is the maximum bit

They are variable. And does Veoh set the frame size? Correct. And what frame size is it set at? For the low res version it is 320 by 240. It is the same

Q. A. Q. A.

The high res version is escaping me. aspect ratio, 4 by 3. 300. Q.

So it is approximately 400 by

So that would appear larger on a user

screen when they see it? A. Q. screen? A. Q. A. Q. Yes. But would it appear sharper image than -Yes. And to be clear, the frame size is -- does No. Would it appear the same size on the user

Veoh set that frame size, or is it set by -- as a

127

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 47 of 88

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

preset in the Flix software? A. We can control the frame size. That's the

output of the Flix engine, and we elect to set it at those sizes. Q. A. Q. And is that the same for the bit rate? Correct. And what about the frame rate? Do you set

the frame rate? A. Q. A. Q. versions? A. version. Q. Can a user tell Veoh what frame rate they It is likely higher in the high res We do. And what do you set the frame rate at? I don't know. Is it different for the two different

want the video file set at when it is transcoded into Flash? A. Q. No. Can a user instruct Veoh on any of the

other specifications? A. Q. No. Does the Flix software allow Veoh to track

any user viewing statistics? A. No.

128

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 48 of 88

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

Q.

And does Veoh sniff a user's bandwidth to

determine if a different bit rate should be used for that viewer? A. Q. No. So it's -- for whatever -- for a particular

video file that has been transcoded into Flash, it would have the same bit rate regardless of what user viewed video file on the system? A. Q. That's correct. And currently once a video file is

submitted and then transcoded into Flash format the entire video file is transcoded into Flash; is that your testimony? A. Q. Currently, yes. And is the entire Flash version of that

file then available to users using the veoh.com interface? A. Q. Yes. And at some time in the past was something

other than the full video file transcoded into Flash format? A. Q. A. Q. Yes. And when was that change made? October of '06. And prior to that was it a smaller version

129

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 49 of 88

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

of the video that was transcoded into Flash format? A. Q. Yes. And how was the length determined? Was it

a standard cutoff? A. If it was longer than ten minutes -- if the

duration of the incoming video was longer than ten minutes we would encode a three-minute Flash version. If it was shorter than ten minutes, we would encode the entire thing. Q. A. Q. Shorter than three minutes? Ten minutes. Okay. Ten minutes.

And why was that change made? A. From a marketing and product placement

perspective we wanted to have a clear differentiator for publishers. And YouTube and other

competitors were limiting, so we wanted to be unlimited. Q. But at all times when a user viewed a video

file or a part of a video file on the veoh.com Web site, was that user also able to download an entire version of that file if the user had the Veoh client installed on their computer? A. Q. Yes. Is it a challenge to get users to down-load

130

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 50 of 88

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 client onto their home computers? A. Q. That is a fair statement. Was the original hope that by not having

the entire video clip on the Web site users might be persuaded into downloading the client so that they could see the full version? A. The primary motivator for the truncated

previews was cost. Q. A. Was there a second area motive? We acknowledged that it may help drive The cost was what drove the

player adoption. decision. Q.

And what costs would be incurred by having

the full video files available in a Flash format? A. Q. files? A. Q. A. Q. Correct. How about storage? To a lesser extent. When a video file is submitted to Veoh and Was that a concern? Bandwidth. Bandwidth as the user actually viewed video

a Flash version is made, is that Flash version made as part of the publication process? A. Q. Yes. It is not made on the fly as someone goes

131

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 51 of 88

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

to veoh.com and clicks on a video to watch, that's not transcoded at that point in order for the user to watch it; is that correct? A. That's correct. MS. GOLINVEAUX: MR. SPERLEIN: BY MR. SPERLEIN: Q. Does Veoh also, in some cases, make a PSP What time is it?

It is about 20 after.

file of the video files? A. Q. A. Q. product"? A. We developed it, but never made it publicly Not currently. Did they in the past? Not as part of the product. What does that mean, "not as part of the

available, part of the product. Q. Are there any video files that are

currently available in PSP format. A. If the user has published a file that's in

PSP format then, yes. Q. format? A. Q. A. That's correct. How about an iPod type format? Yes. So Veoh has never transcoded into PSP

132

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 52 of 88

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

Q. A. Q. A. Q.

Yes, Veoh has transcoded into iPod. Yes. What's the extension for the current -MP4. MP4. And why did Veoh transcode into MP4

for the iPod? A. Pro Publishers get iPod compatible versions

as part of the value add. MR. SPERLEIN: I think -- let me just look

over this one area here real quick and see if there are other questions in this area; and then we will break, get some lunch. BY MR. SPERLEIN: Q. Does Veoh progressive download or streaming

download Flash preview files? A. Q. Progressive download. Do the specifications on the Flash preview

files correlate with the specification on the original video file that the user downloaded; or to the contrary, does Veoh set standard specs for every file, regardless of what the specs of that file are coming into the system? A. So the aspect ratio is determined by the And we won't exceed the 400 by 300, So if somebody publishes 1024 by 768,

incoming file. approximately.

133

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 53 of 88

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, NICOLE R. HARNISH, Certified Shorthand Reporter for the State of California, do hereby certify:

That the witness in the foregoing deposition was by me first duly sworn to testify to the truth, the whole truth, and nothing but the truth in the foregoing cause; that the deposition was taken by me in machine shorthand and later transcribed into typewriting under my direction; and that the foregoing contains a true record of the testimony of the witness.

Dated:

This _____ day of _______________________

at San Diego, California.

___________________________ NICOLE R. HARNISH C.S.R. NO. 13101

136

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 54 of 88

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 55 of 88

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 56 of 88

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

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.

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 57 of 88

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

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

139

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 58 of 88

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

Page 5

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

140

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 59 of 88

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 BY MR. SPERLEIN: Q.

JOSEPH PAPA, having been duly sworn, testified as follows:

EXAMINATION

Good morning, Mr. Papa.

Everything that I

said yesterday before we started the deposition also applies today, as far as remembering to give audible responses. You did a great job yesterday, so I think

we will be fine on that. Yesterday you talked about prior to Veoh going online that there was a possibility being discussed of having community reviewers review content before it was made generally available to the Veoh community; is that correct? A. Q. A. Q. That's correct. Do you remember that conversation? Yes. You indicated later that Veoh found that to

be infeasible and decided not to implement that program. Is that an accurate portrayal of what you said yesterday? A. Yes.

141

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 60 of 88

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

concerned about end user perception.

And the

efficiency of the peer network was sufficient without it. BY MR. SPERLEIN: Q. The first item you mentioned, that Veoh was

concerned with end user perception, what type of perception might an end user get if this system was implemented? A. There was concerns that end user would

perceive our distributing content without their specifically requesting it as negative. Q. Does Veoh, under any other circumstances,

send video files out to Veoh clients without the users requesting it? A. Q. No. When a user uploads video file onto the

Veoh system, does Veoh sometimes create a group of sample images of that video file? MS. GOLINVEAUX: THE WITNESS: Object to the form.

Uploading just moves the file

from the client machine to the video system. BY MR. SPERLEIN: Q. At that time does the Veoh system create a

Flash version of that video file? MS. GOLINVEAUX: Object to the form.

154

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 61 of 88

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

THE WITNESS: BY MR. SPERLEIN: Q.

At what time?

After the user uploads a new video file

onto the Veoh system. A. After a user uploads a new video, we verify

that the codec is one that we support. Q. And after that is a Flash file generated? MS. GOLINVEAUX: THE WITNESS: Object to the form.

A Flash file is generated

after we confirm the version is supported. BY MR. SPERLEIN: Q. And is that Flash file created on a

computer or a computer that is owned and operated by Veoh? A. Q. Yes. At around that same time when the Flash

file is being generated, are there also screen captures generated? MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. Are screen captures generated for every Object to the form.

Yes.

video file? A. Q. Yes. Has it always been the case that screen

155

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 62 of 88

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

captures were generated for every video file? A. We attempt to generate screen captures for

every video file, and that has always been the case. Q. And how many screen captures are made for

each video file? A. Q. A. Q. Currently 32. And has that changed over time? Yes. How many screen captures were made for each

video file in the past? A. Q. My recollection is two were made initially. Between the time that two screen captures

were made, or at least as you best recollect two were made, and the time that 32 screen captures were made was there any other period of time when a different number were made? A. Q. made? A. My recollection is it preceded the launch Not that I recall. And do you recall when that change was

of veoh.com, but I don't remember specifically when. Q. Can you tell me why Veoh made decision

to increase the number of screen captures from 2 to 32? A. We introduced a product feature where users

156

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 63 of 88

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

could look at the screen caps for a video. Q. And did that add value to the user's

experience? MS. GOLINVEAUX: THE WITNESS: I used it quite a bit. BY MR. SPERLEIN: Q. A. Q. You used the screen capture feature? Yes. Did you use that when you were accessing Object to the form.

I can't speak for all users.

Veoh as an end user, as a regular user? MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. And how about professionally when you were Object to the form.

Yes.

accessing the Veoh system for something that was related to your working for Veoh? Did you use the

screen capture feature in those situations? A. Q. I periodically test all features. How would the screen capture feature

enhance a user's experience, if at all? MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. How did -- Veoh added this feature for a Object to the form.

I can't speak for all users.

157

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 64 of 88

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

reason.

Why did Veoh add this feature? MS. GOLINVEAUX: Object to the form. And

it assumes facts not in evidence. THE WITNESS: Prior to the launch of The screen caps

Veoh.com there was no video preview.

feature provided a way to get a little bit more information about the content of the video, prior to downloading it. BY MR. SPERLEIN: Q. At that time, prior to the launch of

Veoh.com, were there any other reasons that Veoh thought the screen capture feature would be beneficial? A. Q. I am not aware of any. And then once the veoh.com site was

launched, at that time is it your recollection that at that time there were 32 screen captures available for each video file? A. Q. Yes. And at that time did Veoh believe that

there was some benefit to having 32 screen captures for each video file on the Veoh system? MS. GOLINVEAUX: THE WITNESS: Veoh. Object to the form.

I can't speak for all of

158

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 65 of 88

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

BY MR. SPERLEIN: Q. Well, actually, that is why you are here

today, to speak for all of Veoh, unfortunately. MS. GOLINVEAUX: question, please? (Record read.) THE WITNESS: I understood that the value Would you repeat the

of that was significantly diminished with the advent of previews. BY MR. SPERLEIN: Q. Do you know why Veoh continued to generate

screen captures after the preview feature was available? A. features. Q. So the fact that the screen capture feature It is not common practice to remove

remained on the system may be somewhat of a legacy type of situation? A. Q. That is a fair characterization. Can you tell me what the -- just a minute. What format, file format are the screen captures in? A. Q. A. JPEG. And what is the pixel resolution? There is two resolutions, 16 of them are

159

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 66 of 88

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

the same resolution as the incoming video.

16 of

them are reduced resolution, approximately 90 pixels by 60 pixels. I don't recall the exact dimensions of

the small range. Q. Is there a reason for having one set of 16

that is at a reduced resolution? A. Prior to the launch of veoh.com, the visual

design on the videos pages dictated two sizes. Q. dictated? A. The visual designers preferred a layout Was there a reason why two sizes were

that required two sizes. Q. After the launch of veoh.com, was there any

longer a reason for having two different sets with different resolution sizes? A. Q. No. When a user is accessing veoh.com and

they're at a video details page, are they required to click a button to show the screen captures? A. Q. Yes. And when they click that button, do they

see all 32 screen captures? A. Q. A. No. Do they just see 16 screen captures? Yes.

160

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 67 of 88

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

Q.

And the screen captures that they see, are

they the screen captures that are set in the original pixel resolution? A. Q. No. Are the screen captures that they see in

the reduced pixel resolution? A. Q. Yes. Are the screen captures that are in the

original pixel resolution available for an end user to view at all? A. Q. A. Q. No. Where do they reside? On Veoh storage system. So to be clear, there are 16 screen

captures that are generated that reside on the Veoh system that users cannot view at all; is that correct? A. Q. That is accurate. Are any of the screen captures made

available to users in a larger size on the Veoh Web site anywhere? MS. GOLINVEAUX: THE WITNESS: BY MR. SPERLEIN: Q. If an end user points his cursor over top Object to the form.

No.

161

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 68 of 88

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

the content and programming teams' responsibility. Q. Do you know if anyone in that department

then takes any action? MS. GOLINVEAUX: THE WITNESS: Object to the form.

I am aware that action has

been taken in response to flags, but I am not aware of the business process that guarantees that all flags are addressed. BY MR. SPERLEIN: Q. You said earlier that there is a flag that

says something to the effect of should be featured on Veoh; is that correct? A. Q. A. That's correct. And what is the purpose of that flag? Gives the community an opportunity to

communicate to Veoh if there is a video that they think should be featured. Q. A. design. Q. receive? A. It might be presented in a box at the top And what kind of special treatment would it And what does it mean to feature a video? Give it special treatment in the visual

of the page on any one of our browse navigation pages.

172

Case 5:06-cv-03926-HRL

Document 80-2

Filed 07/31/2007

Page 69 of 88

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

Q. A.

Anything else? It could also be added to the list of

videos which play on the home page. Q. And are the videos that are listed on the

home page -- does at least one of those automatically begin playing when someone navigates to veoh.com? A. Q. Yes. Is there any other special treatment that a

featured video would get? A. Q. A. Not that I am aware of. How long does it remain a featured video? Content and programming team have a

rotation schedule and it varies. Q. Is there any method for a video file

becoming a featured video other than have the community flag it with the featured flag? A. We often feature content from producers

with whom we have relationships. Q. And does Veoh ever select a featured video

file on its own accord? MS. GOLINVEAUX: MR. SPERLEIN: BY MR. SPERLEIN: Q. Other than those that are featured because Object to the form.

Let me clarify.

of a relationship with the content prod