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.

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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 7 6 FOR PLAINTIFFS 1 2 WITNESS: TED DUNNING

INDEX

EXAMINATION By Mr. Sperlein

PAGE 6

EXHIBITS MARKED 79 117

Copy of a four-page document entitled VeohBeta - Military men Copy of a one-page document entitled Online Video Stewe Vs Emnem and 50 cent with a sub headline Flag it! Copy of a four-page containing e-mails bate stamped 00058, 64,64, 74 Copy of a one-page e-mail from John Papa to Brad Seraphin, Engineering Copy of a one-page document bate stamped 200198 entitled Press Release: All Consumers Wanted for Christmas Was Portable Video Content Copy of a one-page document bate stamped 200199 from Veoh entitled Press Releases Veoh Lineup Rapidly Grows to more than 10,000 episodes Copy of a one-page document bate stamped 200195 from Veoh entitled Press Release Veoh Makes Sony PSP a True Video Platform Copy of a one-page document from Veoh entitled Press Release, Veoh Networks Receives Series A funding to Support First Internet Television Peercasting Network Launch

3 4 5

120 146 174

176

177

8

178

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E X H I B I T S (Cont) MARKED

9 10 11

Copy of a one-page document bate stamped 200200 entitled Veoh Reviews Copy of an e-mail consisting of one-page bate stamped VEOH 00120 from Joseph Papa Copy of a one-page document bate stamped 200166 from Veoh with the name brandon17carter

182 200 203

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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 BY MR. SPERLEIN: Q. A. Q.

TED DUNNING, having been first duly sworn, testified as follows:

EXAMINATION

Would you state your name for the record, please? Ted Emerson Dunning. Okay. Dr. Dunning, have you ever had your

deposition taken before? A. Q. A. Q. (Witness nods head). You have? Yes, I have. Okay. Well, you just covered one of the first As you know, the

things that I want to talk to you about.

court reporter is going to be taking down everything we say, verbatim. During regular human conversation, it's common to

nod or communicate with non-verbal signals, but unfortunately the court reporter can't interpret those for the record. So

when you respond, I ask that you do so verbally with a yes or no and avoid shaking your head. And also, often when we're

having normal conversation you might anticipate the end of my question, or I might do so with yours, but I ask that you let me complete my question before you respond, and I'll do my best to do the same. today? Can we try to make sure we do that

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for the company? A. Q. No. Did you interface with anybody as the software

was developed? A. I talked to several people during the time that

that software was developed. Q. A. months. Q. A. Who were those people? Well, that software was developed over many I talked to many people during those months. Who was in charge of developing that software? Joe Papa. MS. GOLINVEAUX: completely, please. THE WITNESS: BY MR. SPERLEIN: Q. A. Q. Joe Papa? Yes. And going back to the group of developers that I'm sorry. Thank you. Let him finish his question

you worked directly with, what soft -- or what systems have they developed and what have they worked on with regard to the Veoh service? A. Q. A. The search engine. Can you describe how the search engine operates? Videos and users have meta data associated with

them for videos that's typically a title and a description,

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among other things. Q. Is each video file assigned a unique group of

numbers or letters that identifies that particular video file? A. Q. Yes. And when are those -- does that group of letters

or numbers have a name? MS. GOLINVEAUX: question. Object to the form of the

It's not clear whether you're talking about

internal numbers or external numbers to the files. THE WITNESS: designator? BY MR. SPERLEIN: Q. I'm -- a few moments ago, you said that videos Are you referring to an internal

are assigned a unique group of letters and numbers to identify that video; is that correct? A. Q. Yes, sir, I did. What were you talking about when you said that

they were assigned that group of numbers? A. Q. They have an internal video identifier. And what is that number called? Is it referred

to as the internal video identification number? A. Q. Usually video I.D. Video I.D. And when were -- at what point in the upload

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process is the video file assigned that number? A. Q. A. I'm not sure of the exact point it's assigned. Generally at what point is it assigned? Somewhere after the upload process has begun and

before it becomes available to other parts of the system. Q. Is that an automated process? In other words,

does a computer generate that number or does an individual sit down and create and assign that unique number? A. automated. Q. Okay. You described two different processes. The generation of the video I.D. is completely

Before you said that videos, smaller videos can be uploaded using a browser to the Veoh.com web site, and that larger videos can be uploaded through the Veoh client after an individual has downloaded the client to their computer; is that correct? A. Q. Yes, I did say that. Are both types of videos assigned this unique

identification number in the same manner? MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. A. Q. Do you understand my question? What do you mean by both forms of videos? Well, the two that we just described, the shorter Object to the form of the

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videos that are uploaded through a browser or the longer videos that are uploaded through the Veoh client. Those are

the two different types of videos we're talking about at this point. Do you understand that, sir? A. I don't make the distinction between those two

types normally. Q. Well, they're uploaded in different ways, though;

is that correct? A. Q. That's correct. Regardless of how they're uploaded, are they

assigned a unique number using the same automated process? A. Q. Yes. Thank you, sir. And your team developed the search engine; is that correct? A. Q. engine? A. To allow users to frame queries in terms of meta That's correct. What is the general purpose for the search

data and then to find videos. Q. What types of searches could a user perform if

they wanted to locate a video they are interested in seeing? A. Q. They can type words that might be in the title. All right. Is -- in the interface where the

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person would be entering these words, is there just one field that says, for example, search, and then a block for them to enter text, is that how it looks? A. looks. Q. A. What form of the interface? On most web pages at Veoh, there is a search In one form of the interface, that's how it

block such as you described. Q. If someone typed a word in that search block, the

search engine would then try to locate videos that were associated with that word in their meta data; is that correct? A. meta data. Q. And when we're talking about meta data, one It would find videos that contain that word in

example that you gave so far is the title of the video; is that correct? A. Q. That's correct. What other types of data would be searched as

well when someone enters words into the search field? A. Q. search? A. Q. There are also tags. Tags? Could you explain what a tag is? There is also a description. And is there any other meta data that it would

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Q.

When a user performs a search using the search

function, where would the meta data reside that your search engine -- when someone enters a phrase, where is -- where is the data residing that it would actually go through and look at? A. Q. A. It's stored in an index. And where is that index? In San Diego. I think your question's ambiguous.

What do you mean by where? Q. We're getting close. We know it's in San Diego.

Is it a Veoh controlled server? A. Q. A. Q. A. Q. A. Q. A. Q. servers? A. Q. Four, for such purposes. Just to summarize, there's four servers which are Yes. Does that server reside at Veoh's offices? No. Is it in a co-location facility? Yes. Does that particular server have a name? There is no single server. Okay. It's a group of servers?

That's correct. Can you give me an estimate of how many

where data is stored for the index?

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A. Q.

That's correct. Do you call those group of servers by a

particular name? A. Q. A. Q. A. Q. A. Q. Yes. What is that name? The REC servers. The REC servers, is that R-E-C? That's correct. Is that short for something? Recommendation. Are they then assigned a number? Is there REC

server 1, REC server 2, or do they have -- I know some places give their servers cute little cartoon names. Are these

particular servers referred to specifically individually? A. Q. REC 1, REC 2, REC 3, REC 4. Does anything else reside on those servers other

than the index? A. Q. A. Q. A. Q. Yes. What else resides on those servers? The operating system. What operating system is that? Linux, L-i-n-u-x. And when you say the operating system, the

operating system specifically being Linux, every computer requires an operating system in order to operate; is that

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correct? A. Q. That's correct. So the Linux operating system wouldn't have

anything that's unique to Veoh; is that correct? A. Q. That's correct. So other than the operating system and the index,

anything else on the REC servers 1 through 4? A. Q. A. The java virtual machine. What is a java virtual machine? It has software which facilitates the execution Java being a computer language.

of java programs. Q.

And does that -- does that assist in the process

of searching the index? A. Q. A. It allows the execution of software. What types of software? Software that was written in java and then

compiled for execution on those machines. Q. And on these specific machines, what sort of java

software has been written? A. Q. The so-called REC engine. And is the REC engine a tool that helps people

use the indexes, the index for the purposes that we have described, that is, helping them locate a video file? A. Q. Yes. The main purpose of those four servers is to

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operate the index which helps people locate video files; is that correct? A. Q. Yes. Now once a user has performed their search, do

search -- are the results of that search shown to them on their computer screen? A. Q. Normally. When you say normally, is that normally if things

are operating correctly, that's what will happen? A. Q. A. found. Q. Okay. So if there's nothing under the particular Yes. And -Sorry. And also assuming there is something

search term, tell me what the screen would say? A. It might say any number of things. It might be a

blank screen.

It may say, you didn't find anything -- or we Or it might show some default

didn't find anything for you.

list, popular or featured videos. Q. In some way or another, it will let the user know

it was unable to find any videos that specifically had that search term in the meta data? A. notice. Q. Okay. And what you're suggesting there is people It will try to let them know. They may not

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don't always read everything that comes up on the computer screen; is that correct? A. Q. Yes. Okay. You mentioned that if the search engine

doesn't come up with a result that actually has one of the words in the meta data, one of the things that might happen is that there may be a list of suggested other videos for the person to view; is that a correct statement of what you said? A. Q. No, I said featured or popular. Featured or popular. I'm sorry.

We'll come back, and I want to ask you some more questions about the feature or popular videos later. But

before I do that, I want to continue with the idea of this search function. If the search is successful, that is if the index does locate video files that contain the words that the user searched for within the index, what would appear on the user's screen in that situation? A. Q. A listing containing video titles. Is there a limit to the number? Does it only

show a certain number of suggestions? A. It shows you a limited number, but allows you in

many cases to go to another page of subsequent results. Q. So it provides a list on the first page, and then

offers you the opportunity to see more videos that also have

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that word in the meta data? A. Q. If there are more that match. Okay. Is the list that comes back simply a list

of titles or is there more information as well? A. system. Q. That depends on the specific version of the It may show more or less data. Okay. Let's talk about the current version of

the system for the purposes of this next question, where I'm going to repeat the question, actually. On the current And when I say

version, how would the search result appear?

how does it appear, I mean, is there a title listed? A. Q. screen? A. Q. A. image. Q. A. Can you describe what a thumbnail is, please? It's a still image that the publisher has the I think part of the description appears. And anything else? I think that there's a very small thumbnail I believe there's a title listed. And what, in addition to the title appears on the

option of uploading at the -- during the upload process. Q. Is it an individual frame from the video file

that is responsive to the search? A. The publisher has the option of uploading any

imagine they like to describe that video.

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Q.

If the publisher doesn't upload an image at the

time that he or she puts the video file in the system, is there something that would appear in place of that thumbnail image on the list when it comes back after a search? A. Q. A. There can be. And what would that be? If no image is available for a video, then

there's a default image that can be shown. Q. And the default image, is that something that's

taken from one of the frames of the video file? A. The default image is a fixed image that shows a

Veoh logo or something. Q. I'm a little bit confused because I have done

searches and it seems to me whenever I get a search back there's always some sort of image next to the title. So are

you suggesting that if that's the case for me, that all of the videos, all of the searches that I returned, were put on by publishers that chose to put an imagine in that section, or is there some other explanation? A. Q. There's another explanation. Could you tell me what the other explanation

A.

In addition to the two cases that we described, a

frame can be selected from the video to try to display something that's in the video.

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normal for videos. Q. During those times, were those screen captures

withdrawn using the same process theory? A. Yes. MR. SPERLEIN: I think that's all I have on that

particular area so I'm going to ask Mr. Webb to come back in, but before I do that, and while this is all fresh in your mind, I'm going to ask Ms. Golinveaux, do you feel that that needs to be earmarked as highly confidential or would a confidential classification be suitable for that purpose? THE WITNESS: Usually perceptual entropy is. For present purposes, let's mark

MS. GOLINVEAUX:

that entire portion highly confidential, and I'll take the opportunity after we receive the transcript, and I'll let you know if we could lower the designation. MR. SPERLEIN: Okay. Thank you very much.

(Mr. Webb enters the room). BY MR. SPERLEIN: Q. Once a search has been performed by a user and

there's now a list of responsive video files that contain those search terms in their meta data, if the user now wishes to view that video file, how does the -- how does the user do that? A. The user can download the video file using the

Veoh client.

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Q.

Now when you say download the video, do they

actually obtain that file and it goes on to the hard drive of the user's computer? A. Q. Yes. I think that we're probably going to get back in But does that -- do they

to a pretty technical area here.

download that video file directly from a Veoh server? A. Q. server? A. Q. It does reside on a Veoh server. And has this -- has this always been the method Yes. Does the entire video file reside on a Veoh

for downloading a video file using the Veoh client? A. The Veoh client has, as long as it has been

available, been used for downloads as long as it had that capability. Initially it only had upload capability during a

testing phase. Q. Just to be clear, the entire video file resides

on a Veoh server that the user then downloads on to their hard drive; is that correct? A. Q. That's correct. Does Veoh use any methods for increasing the

download speed for the video file? A. There's a number of techniques used which are all The actual disk itself is a network

very conventional.

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Q.

So the file that an individual downloads from the

Veoh server is exactly the same as a file -- the file that was uploaded by the publisher? A. It is bit for bit equivalent, and to say that it

is the same file raises philosophical issues of what the same means, but bit for bit equivalent is the standard term of art. Q. Going back to my first question in this line,

what -- is the file format then exactly the same as when the video publisher put it on to the Veoh network? A. Q. Yes. And can you give me some examples of file

formats, and when I say file formats, what that would -- can you give me some examples of video file formats? A. Q. MPEG-2 is a file format. Can users upload any files that aren't a video

file format? A. They can upload the file, but the servers will

not complete the publish process. Q. And what happens in a situation where someone

tries to upload a file that's not a video file and the servers don't complete the publishing process, what happens to that type of file? A. An automated process will record the meta data,

assign the video ID and mark the file -- or mark the entry in

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A. be either. Q.

No reason, but no reason to believe it wouldn't

How -- if a video that an individual user wants

to watch, and they don't have the client -- strike that. How does a video get from the format that it's submitted in by the publisher into Flash format? A. There's a completely automated formatting

exercised to maintain consistent sizing and presentation of videos on the web site. Q. Where does that transformation occur? Does it

occur on a particular server? A. Q. One or more servers. And can you tell me where those servers reside? Are they at the same co-location facility as the indexing servers? A. Q. No. Did you tell me the specific physical location of

those servers? A. Q. Not entirely specific. It's in Los Angeles.

The user uploads a video file, and there's an

automated process for taking that file and putting it in to Flash format. What are the limitations on that? Do they --

does that happen with every file that's submitted by a publisher? A. The thumbnail extraction and Flash formatting for

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presentation are both done automatically for every video. Q. Does this transformation copy the entire video in

to Flash regardless of size? MS. GOLINVEAUX: question. BY MR. SPERLEIN: Q. A. Q. Go ahead and answer. Repeat the question. When a publisher submits a file, a video file, Object to the form of the

you said that the Veoh system automatically transcodes each file into Flash format and extracts screen captures; is that correct? A. Q. Uh-huh. My question is, when it transcodes the file into

Flash format, does it transcode the entire file regardless of the size of the file? A. Just a moment. When he said, is that correct, I And I apologize.

said, uh-huh. Q. A.

I should have said yes.

Thank you for keeping those things in mind. It examines the entire file, whether or not the

Flash file contains the entire file or not, is the technical setting purely for business reasons that I can't comment on. MR. SPERLEIN: back to me, please. Could you read that last response

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single number is a range as well mathematically speaking, so they decide what the limits are, and we live with the limits. Q. All right. We're going to come back to this a

little bit later after I get some help from my tech expert to understand this a little bit better, because I'm not that conversing in this. Is there any advantage to having videos in Flash format as opposed to the original file format? A. Q. A. Yes. What are those advantages? The file maybe smaller so it's possible to And is also supported by most browsers, so

actually show it.

again, it's possible to show it. Q. A. Why is the file possibly smaller? It may be at a reduced resolution. It may be

compressed more effectively. Q. And is that -- do those changes transpire during

the transcoding from the original format into Flash format? A. Q. Yes. And how is it determined at what the compression

rate of the new Flash file is going to be? A. The encoder used to copy the file to the Flash

format has a setting which determines the bit rate of the output its allowed to make whatever encoding decisions it needs to do to most faithfully represent the video within the

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have changed at that time or is there something that specifically lead you to believe that there was a change in policy regarding registration at that time? A. No, it may have changed. I do not know the

specific change. either. Q.

I do not know the specific stability

Did you ever have any conversations with anybody

at Veoh about requiring individual user to register before they uploaded the contents to see on Veoh's system? A. Q. not? A. Q. I haven't. I have no recollection. I have no idea if I ever talked about that. You have no recollection that you have or have

Do you know if an individual user's PI address is

somehow noted when -- at the time that they upload a file onto the Veoh network? A. Q. It may be. It's common to record IP addresses.

Do you know -- do you have any information about

Veoh's policies with regard to retaining information about IP addresses? A. Are you asking about information that's

associated with this litigation or in general? Q. I'm asking in general, but let me ask a

background question first. Is that information that would usually reside on

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what's called server logs or web logs? A. Q. That's a common place for IP addresses -I'm sorry. Didn't mean to cut you off. Did you

want to repeat the end of your sentence. A. Q. -- to be noted. Okay. Do you know if Veoh follows that kind of a

practice of maintaining something that's called web log that records IP addresses? MS. GOLINVEAUX: Object to the form of the

question; misstates the former testimony. THE WITNESS: BY MR. SPERLEIN: Q. Do you know whether Veoh records IP addresses at Could you repeat the question?

all of its users? A. I know that in some cases we have recorded some Again, those are part of the system that I do

IP addresses.

not have detailed knowledge of. Q. On a routine basis, though, and not with regard

to this litigation, do you know if Veoh routinely records information about the IP address of users on its system? A. I'm sure that some IP addresses have been I do not know about current systems.

recorded routinely. Q.

Going back to the time frame when Veoh required

users to register before they uploaded a video file, do you know if that registration process involved the users

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it called user name? A. Q. User name would not be the person's name. That's what I thought you were trying to get the Was there a place

point across when -- so let me ask again. for them to enter a user name? A. Q. Yes.

Was there a separate place for them to identify

their given name? A. Q. They had the opportunity to type in a given name. If you know, if that information was -- if

nothing was entered in that field, could their registration be completed? A. Q. address? A. Q. Yes. And did Veoh verify that e-mail address by I believe so. Was there a place for them to enter an e-mail

sending a confirming e-mail prior to allowing the video to upload any video files to the Veoh system? A. that. Q. A. Q. Do you know why you discontinued it? It was an error-prone process. And when you say error-prone, does that mean that At least at one time we did, but we discontinued

you -- were there concerns that you would lose a certain

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level. Q. That's fine. Regardless, I'm going to ask you a Do

specific question.

If you don't know it, just tell me.

you know if users are required to grant Veoh permission to broadcast their video files through the Veoh system before they upload a video file on to the Veoh Network? A. right. Q. All right. Okay. I don't know that they are required to grant that

When a user uploads a video file onto the Veoh system, we talked earlier that they are allowed to enter a title and description and possibly some tags if they chose to do so. It's my understanding that they are also given the

option of selecting from a group of categories; is that correct? A. Q. A. Q. I believe so. Do you -- are you familiar with that option? Not in detail. This is not something that you're involved with

the programming of? A. Q. Mr. Papa? A. I couldn't speculate if it's better left to him, No, it's not. Is that another question that's best left for

but it's not --

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A.

In fact it's the same as the previous page.

Makes it more confusing. Q. Then there's a section that says tags colon, and

then a list of words. We were talking about tags earlier today. Is

that the same tags that we were talking about earlier today, that is words that publishers can add to the meta data for a particular video file to help people search for it? A. Q. there. 08:06. That appears to be those tags. And then moving in to the center of the page

There's a header that says, length colon, and then To the best of your knowledge, is that the length of

time that it takes for the video that appears on Page 1 to play through the system? A. Q. plays. Subject to a significant error rate. There may be some variation how fast the video

It may stop and start, things like that, depending on

the quality of the person's computer or bandwidth or other items like that? A. Also it can be difficult to extract a play length

from a video file. Q. then 8958. Directly beneath that it says, views colon, and Do you know if that represents the number of

times that individuals have viewed the video file that's playing in the Flash player?

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A. Q.

No, I do not. Do you know if -- do you know what that number

signifies at all? A. That's an integer that comes out of the database

of the record associated with this video. Q. And do you know, it's some sort of -- in some

way -- strike that. We talked earlier about some videos are played through the Flash player directly from Veoh.com, and other times users download videos onto their computer using the Veoh client. Do you know if that number would represent either one of the number of times that someone downloaded this video file through the client or the number of times someone watched it through the Flash viewer or something else? Is

there any way that you can help me better understand what that number represents? A. It's very difficult to actually discern what This is a number

actions a user is taking on their computer.

from a server, which has only a hazy knowledge of what the user does. Q. service? A. Q. No. Which server? This number is from which server, the indexing

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A. Q.

From the web servers. The web server. And is that separate and

distinct from the Flash servers that are in Los Angeles that we identified before? A. Q. We did not identify Flash servers before. Earlier we talked about some servers that are in Those

Los Angeles that -- I acknowledge your correction.

servers in Los Angeles is where the files are transferred into Flash format; is that correct? A. Where they're copied into Flash format; that's

correct, the servers in Los Angeles. Q. And that's different from where the Flash files

actually reside? A. Q. It may be. All right. This number here, though, you said

comes from which server or group of servers? A. Q. A. Q. The actual web server itself. And where is the web server? I believe that they are in San Diego. Do you know if they are at the same co-location

facility as the index servers? A. Q. A. Q. That's correct. Do you know how many web servers there are? No. So this number is generated by the web server,

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but do you have reason to believe that that number may not be an accurate number of anything at all? A. It's notoriously difficult to produce accurate

counts of user behaviors. Q. Can you tell me what the goal is to count here,

what information Veoh is trying to convey through this number of use? A. I think this intent is to allow users to have a

rough estimate of what might be more or less popular. Q. Okay. And to do that it shows the -- it attempts

to show users how many times a particular video file has been viewed; is that correct? A. accurate. Q. It attempts to do so, but it may or may not be Generally not. And once more, I want to make the distinction of,

to the extent that it is trying to count something, do you know if it's counting the number of times or attempting to count the number of times that individuals have viewed the Flash file through the Flash player on the web site? the Flash player is not on the web site. I know

They're trying to

view it at home on a Flash player that resides on their computer. But they are trying to look at the Flash file as Is that what Veoh is

opposed to a downloaded file.

attempting to count and project here? A. Not really.

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Q.

Is it attempting to count the number of times

that users have downloaded the file using the Veoh client? A. Q. A. Q. No. It's not attempting to count that at all? I don't think so. Okay. Going back to my other question about

whether it's attempting to count the number of times that individuals have viewed the Flash version of the file through a Flash player, you said not really. answer? A. I think it's attempting to count the number of Could you clarify your

times that downloads of the video detail page itself, the container for those graphics was initiated. Q. A. Okay. But it's often initiated and not completed, and

there may be phantom initiations that don't correspond to user interaction at all. Q. If I wound up on this page that we are looking at

here, would the Flash file automatically begin to play or would I have to take another step and select a button that says play or select on the picture, or some other method of making it start? A. If you viewed this video detail page and things

operated correctly, then the Flash player would start the video playing.

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in order to make room for additional video -- Veoh video files? A. Q. Who are they in your question? I'll rephrase the question for you. Can Veoh, using the technology that it has available to it, remove a video file from a user's hard drive? A. If somebody downloaded it using the Veoh client,

then we can send a signal to that client to remove that product. Q. When you use that system and remove the file from

the Veoh client, would that -- would it immediately delete that file, or does it move it into a trash can or in a wastebasket, like some operating systems call for? happens to that file? A. not. I don't know details whether it goes instantly or What

I do know that we don't take NSA level precautions to

overwrite the file or any special things, but I don't know the details. Q. Okay. If the -- would the user be able to take

the video file after he downloads it using the Veoh client, could it then take the video file and put it in some area of his hard drive where that ability would be thwarted, the ability for Veoh to go in and delete the file? A. I'm sure they could obscure the existence of the

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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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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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higher chance that it's not an identifiable video.

But if it

comes through the flagging system, then there is included a link to the thing, which is essentially guaranteed to be resolved to a video owner. And there I will look, if I get

that e-mail or if somebody else forwards it to me, I will follow that link and look at it, and see what -- what I think. It's sometimes a difficult judgement. Sometimes it's

an easy judgement.

There have been cases where people were

feuding with each other so they said, everything they are doing is copyright infringement. They sent it back. Those

are child, you know, school yard taunts more than anything. In other cases, it's very very clear that it's, say, a movie or something. front. There's a copyright notice on the

The user's name does not match or there's an apparent

effort to obscure what that is, and there's an immediate take down in that case. Q. What other types of things would help you

identify something that was clearly a case of copyright infringement? Let me try to recap the things that you You said something about it

mentioned in your last answer. being a movie.

By that, do you mean a -- you mean, a long

play, a Hollywood type movie, not -- as opposed to an amateur production. A. Is that what you intended when you said movie? Yes. Movie is, as you pointed out, ambiguous.

And I was referring to the extreme case where it's an hour

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and a half long, and it starts out with a Paramount logo and it has a copyright by some Paramount, and has a movie title that I have heard of. So something I have never heard of,

but the extreme cases, I know that movie, and we just had take down notices from that studio. There's no way somebody Those

named, I am 13 in Toledo owns the copyrights to that. are extreme cases and very clear. Q. correct? A. Q. Absolutely. Okay.

But those extreme cases do happen; is that

And we respond to them very quickly.

And you said one of the other things that you

note is whether or not there's a copyright mark on the file that you have been asked to look at? A. That just makes it easier for me. It's not

necessarily there.

But if somebody says it's copyrighted to

somebody, it says it's copyrighted on the material, and the user does not appear to be that person, then it's pretty easy. Q. attention. Okay. So if someone brings something to your

You take a look at it, and you make a judgement

call as to whether you think it infringes or not, and if you believe it is infringing, you take it down. What about the case where there's -- where you're not absolutely sure, where it looks like maybe it's what you described before, as a schoolhouse -- I mean school yard

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publication, we don't have the videos. then. BY MR. SPERLEIN: Q.

We couldn't review it

What is your understanding of when the

publication process occurs? A. When the publisher, user, producer person starts

entering meta data about the video. Q. So the person enters the meta data, and then they

upload a video file to the Veoh system, is that the way it progresses? meta data? A. Q. That's correct. When that person updates or submits the material, That's -- the uploading is after they enter the

is it available through the Veoh system instantaneously at that very moment? A. Q. Not instantaneously. Does it first go to Veoh servers to have -- for

example, to have the Flash files made and whatnot? A. There's a large number of steps involved in

positioning and providing links to a video before it can be presented on the web, so it's a very complex process. Q. Well, unfortunately I'm going to ask you to go So let's break it down

through that complex process with me.

and try to get through it as quickly as possible. First the user enters meta data which is the

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title and a description, and they can select tags. what we talked about before.

That's

Is that -- the things that I

just covered, is that entirely of what the entering the meta data is involved? A. I couldn't say that's all of it, but that's some

very important parts of it. Q. Okay. And from there, they select the video file

from wherever it resides on their computer and they somehow deliver it electronically to the Veoh system; is that correct? A. Q. That's correct. And can you tell me from there what happens once

that file in the meta data that the user inputed is delivered to Veoh, what happens there? A. Meta data has to be stored in the database, the The technical particulars of the

meta data must be indexed. video have to be examined. Q.

Let me stop you right there.

What does that

mean, the technical particulars of the video have to be examined? A. used. Which Kodak is used, which envelope format is What the frame rate is. It's like 30 or 40 What

How many seconds is it.

the audio Kodak that are used are.

separate pieces of information that need to be extracted from the file and verified for usability.

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Q.

Is that done entirely by an electronic process

with no human input? A. Q. Entirely, automatically. And after that information is extracted, what is

the next step in the process? A. I don't remember if I said indexes of meta data,

that occurs contemporaneously with the extraction of technical information about the video. extracted for use as thumbnails. Then frames are

One of those, the most

seemingly interesting is selected as the single thumbnail to be represented for search results. The Flash preview is These various pieces of

copied from the original video file.

data are positioned on the correct servers, not just for internal access, but for external access. Q. Let me stop you there for just a second. I want

to clarify something. With regard to both the meta data and the original video file, is there a key entry point where they come to Veoh and then get distributed to different places for these processes, or does that happen instantaneously as the user submits them? And if you would like, I can give you an You said that the meta data has to

example of what I mean.

go to the indexing system, which we know resides in four servers here in San Diego. Does that information go directly

there, or does it go to a kind of central processing area

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the video? A. They wouldn't look at the content, they would

look more along the lines of how many files are there, what phase of the automated process did they get stuck in. There's at least a dozen steps on two dozen different computers or more where this -- this process is happening. And so any one of those -- not any one of them, but many steps can cause a hang up. Q. I understand. Once the video publishing process is complete and the video is now on the Veoh servers and available to other users, does Veoh currently review any of those videos by physically looking at the videos prior to some sort of flag or ownercation from a user that it should be looked at? A. We look at prominent pieces of our site, the

front page, the featured videos, things like that to make sure that we're not as an introductory experience, showing something that's lude by very strict standards, you know. Kind of the lowest common denominator community standards. But that primarily involves a quick glance at a screen full of thumbnails. Q. If you see something that is appearing on the

front page of Veoh as part of this automated process that you think is not something that you want the public, or the first glance of Veoh to be some nudity or you mentioned ludness, is

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there some way that you can prevent those video files from appearing on the front page without removing it entirely from the Veoh system? A. Q. We can rate them mature content. And if something is -- if a video file is rated

as mature content, it will not appear on the front page of the web site; is that correct? A. Q. That's correct. And there are other places on the web site where

it will not appear; is that correct? A. Presumably. Web site is a very fluid thing

because the viewer filters and things like that influence the way it looks. Q. Okay. Earlier you mentioned that if a viewer

indicates they think of video is infringing, that you'll take a look at it and possibly remove it. If during this review

of what is currently appearing on the front page, you saw a Twentieth Century Fox logo that you believe might be infringing, would you move that to another part of the web site or take it down completely? MS. GOLINVEAUX: THE WITNESS: Object; calls for speculation.

Simply seeing a logo or parity of a I wouldn't comment on whether

logo could mean many things.

or not that's infringing, but if I think that there's any credible claim of infringement, I take it down. I don't move

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correct? A. Q. A. Q. this point. That would be true very shortly after my action. Okay. Sooner than some of these other things. Okay. I think we'll take a 10 minute break at

Is that okay? MS. GOLINVEAUX: Sounds good.

BY MR. SPERLEIN: Q. At the time that Veoh permitted sexually explicit

video files on the Veoh system, did Veoh have some way of verifying the age of the user who uploaded the contents? A. of meaning. Verifying is a strong word and has many degrees We could not know absolute truth. We did take

some effort to verify. Q. A. Q. A. And what measures did you take? I'm not sure what the details were. Do you know any measures at all that you took? I'm sure that the users were required to avare I don't know what efforts beyond

that they were over 18. that were taken. Q.

Earlier we talked about the registration process,

and would users -- would that likely have been part of a registration process to put your date of birth or other information? A. I don't know if that's how that was done or not.

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Q.

Can you say whether Veoh at least asked a user

his or her age before allowing him or her to publish adult video files through the Veoh system? A. to publish. Q. I don't know if we asked before we allowed them I think we asked before we allowed to view. If a user wanted to view contents that was

categorized as adult or containing adult material, are you suggesting that that user had to provide information that said that they were over 18 years of age? A. Q. I believe so. And with regard to actually publishing the

material, uploading the material on the web site, is it your testimony that you don't know whether Veoh required the person to indicate that they were over 18? A. Q. A. Q. Yes. You don't know one way or the other? No. Do you know why Veoh made the decision to

discontinue allowing sexually explicit video files to be published through the Veoh system? A. Q. A. Q. No. Did you ever discuss that with anyone at Veoh? I'm sure there were discussions at Veoh. I'm asking you about your discussions. Did you

ever discuss with anyone at Veoh, outside of the presence of

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your counsel or counsel for Veoh, why was it that Veoh decided to remove adult material from the Veoh system? A. I'm sure that it was discussed. I don't know

specifically. Q. A. Let me ask one more time. No. No. I'm not asking --

I'm saying with me, I was involved in

discussions. Q. I just want to make sure. Do you recall who you may have had those discussions with? A. I may have had the discussions with many people.

I do not recall specifically who I would have discussed it with. Q. Do you recall what was said during any of those

discussions? A. Q. A. Q. A. Not specifically. How about generally? Some things I recall. And what would those be? I would -- we noticed that we had a large number

of complaints about prominent placement of adult material. Q. A. Anything else? We also had a fair number of complaints about

potentially copyright infringement. Q. Okay. Anything else?

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A.

There were comments to us that we didn't seem to

understand proper handling of adult material. Q. Okay. Do you remember where any of those

comments came from? A. Q. A. Not specifically. And do you remember the nature of those comments? That -MS. GOLINVEAUX: Again, Mr. Sperlein's not asking

for you to disclose the contents of any attorney-client information. So if it is, I'll instruct you not to answer. Right. People from outside Veoh in

THE WITNESS:

the adult industry, I can't remember who, said that we were, to put it mildly, clueless about how to deal with that. BY MR. SPERLEIN: Q. Do you recall if these people were users that had

brought these issues to Veoh's attention through the Veoh flagging function or some other function of the web site? A. I not only don't remember who the users were, I

don't remember how their comments came in. Q. Did you have any direct conversations with the

people that you just described? A. I do remember one time a person called, which is

very unusual since we only had one conference phone, and he told us that we didn't understand this whole area. Q. And Veoh took those criticisms to light and

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Q.

Have you ever made that decision to include, to

put something in to the featured section? A. Q. A. I don't think so. Do you have any understanding of whether -I'm sorry. I have flagged videos as being worthy

of feature and presumably somebody would notice it's me. Q. How is it that you would come to flag a video?

Is that just when you were browsing through the system looking at what's been recently posted or for some other reason? A. The only one I can remember specifically flagging

for that was one of our very early videos, and of course, back then, if there's 10 or 100 videos on the site, everybody would have seen all of them. I don't remember flagging one in a very long time, so I don't know. Q. Okay. But some individual or group of

individuals who are employees of Veoh make a final selection as to what videos are going to go into the featured video section; is that correct? A. Q. That's correct. And it's your understanding that possibilities to

be included in the featured section come to that group of individuals by a number of different ways; is that correct? A. I believe so.

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site? A. Q. Often. And we're talking about -- for the purposes of In what --

this conversation, we're taking about currently.

in what situations would a video not automatically appear when a user came to the site? MS. GOLINVEAUX: speculation. THE WITNESS: When the database is down for Objection; calls for

maintenance, for instance, there is no videos made, I believe. BY MR. SPERLEIN: Q. The way the system is intended to work when it's

operating properly would include a video appearing on the front page when someone comes to the Veoh.com web site; is that correct? A. It happens typically when I go there. I don't

know, you know, the case of all users. Q. play? A. Q. A. Q. A. I believe there's a variety of methods. Could you describe some of those methods? I don't think I could describe them all. Did you describe a couple of them? One is featured videos. If it's a featured Do you know how it's determined which video would

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video, it might be played when a person gets there. Q. Okay. And if it were a featured video, would any

information about the particular user that's been gathered by Veoh determined that this particular video is something that that user might want to see? featured video. A. Q. No. Are there other times when Veoh uses some sort of Now we're talking about a

data collection which allows them to say, based on your past usage, for example, this video might appeal to you, so when that user goes to the web site, a video that is determined to be something they might be interested in appears? A. Q. Yes. At the time that Veoh allowed adult content to be

publish through the system, we mentioned earlier that there was an adult category; is that correct? A. Q. I believe so. Was the adult category further divided in to

adult videos that might appeal to a gay audience as opposed to a straight audience? A. I think the division was more along the lines of

videos that might offend a gay audience or offend a straight audience. Q. It was based mostly on complaints. So did customers complain that when they did a

search that they were getting results that they didn't want

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