Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 224

DECLARATION of William M. Hohengarten (Part Twelve) Ex. 329 in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 330, # 2 Exhibit 331, # 3 Exhibit 332, # 4 Exhibit 333, # 5 Exhibit 334, # 6 Exhibit 335, # 7 Exhibit 336, # 8 Exhibit 337, # 9 Exhibit 338, # 10 Exhibit 339, # 11 Exhibit 340, # 12 Exhibit 341, # 13 Exhibit 342, # 14 Exhibit 343, # 15 Exhibit 344, # 16 Exhibit 345, # 17 Exhibit 346, # 18 Exhibit 347, # 19 Exhibit 348, # 20 Exhibit 349, # 21 Exhibit 350, # 22 Exhibit 351, # 23 Exhibit 352)(Kohlmann, Susan)

i
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- - -- -------- - -- -- - ---- - ----- -- - - ---X
VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC

TELEVISION, INC., PAROUNT
PICTURES CORPORAT I ON, and BLACK ENTERTAINMENT TELEVIS ION, LLC,

vs.

Plaintiffs,
No. 07 - CV - 2 1 0 3

YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC.,

Defendants.
- - -- - - -- - - ---- --- -- -- - - ---- - -- - - -- -X
HIGHLY CONFIDENTIAL

VIDEOTAPED DEPOSITION OF NICHOLAS SEET/AUDITUDE, INC. SAN FRACISCO, CALIFORNIA TUESDAY, NOVEMBER 24, 2009
JOB NO. 18254

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Nicholas Seet San Francisco, CA November 24, 2009

2 09:24:09 to that we did broadcast-based music identification,
3 09: 24: 16 and that turned into broadcast television and radio

4 09: 24: 21 ad tracking technology.
5 09:24:25
6
7
8

And then we changed our business model in

09:24:28 2006 09:24:38

to focus on online media.
Q.

Okay.

So

--

so when

--

when was

the

09:24:41 company
09:24:43
A.
Q.

actually incorporated?
In 2006.
And how

9

10

09:24:46
09:24:49 have 09:24:51 2006? 09:24:56
09:24:57

--

how many

employees

did Audi tude

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12 13 14 15

at the time that
MR.

it

opened for business in

PLATZER:

Obj ect

to the form.
Mr.

MR. WILLEN:

Excuse me.
So

09:24:59 09:25:01

MR.

CARDON:

this is --

Platzer is
So you can

16
17 18

just

making an obj ection for the record.

09:25:04 go ahead and answer 09:25:05
BY MR.

it.
if
you understand my

WILLEN:

19

09:25:06

Q.

If

you

question,

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21
22

09:25:08 you can answer

it.
So

09:25:09 09:25:10 09:25:13 09:25:16
09:25:19

A.
Q.

Less than five.
Okay.

at the time that the

company was
was

23 24 25

incorporated in 2006, what would you say
the primary business model at that time?
A.

the

Tracking ads on

TV and

radio.

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1

Nicholas Seet San Francisco, CA November 24, 2009
Q.

2 09:25:23

Can you just describe briefly how that --

3 09: 25: 26 how that business model works?
4 09:25:30

A.

We have a -- a nation-wide system of

5 09:25:36 broadcast fingerprinters that would fingerprint

6 09: 25: 44 television and radio signal, and we would be
7 09: 25: 48 provided with media from advertisers and agencies to
8 09:25:52 look for in that broadcast fingerprint.
9 09:25:56

So essentially we were tracking ads on TV

10 09:25:59 and radio, and we could tell the advertiser or the

11 09: 26: 02 agency exactly when and where their ads played,
12 09:26:06 which was previously not something that -- that
13 09: 26: 09 either they were not doing it, or they were doing it

14 09:26:13 by hand, manually going through and listening and
15

09:26:17

watching television, which was obviously not very

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09:26:19 09:26:23
09:26:27

accurate, and
Q.

and and

quite labor-intensive.

And

that business

was

based on an
had

audio fingerprint technology developed?
A.
Q.

that Audi tude

19

09:26:31
09:26:32 09:26:32

20 21

That

is correct.

And was

it

you who

developed that

22 09:26:34 technology?
23 09:26:35

A.

I was the CEO at the time that technology

24 09: 26: 38 was developed, but I wasn i t personally the -- the

25 09:26:40 author of the technology.

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Nicholas Seet San Francisco, CA November 24, 2009
Q.

2 09:26:42
3
4

Who -- who was the actual author of the

09:26:44 09:26:45 09:26:52 09:26:57 09:27:00
09:27:02

technology?
A.
We

have a chief

5 6
7

Bilobrov

who

is the -- as

scientist named Sergiy we say -- the rocket
you

scientist
Q.

who

developed the technology.

At a high
me

level of generality, can

8

describe for
A.

what the technology

actually is?
obj ect.

9

09:27:05

Certainly -MR. CARDON:

10 11
12

09:27:06
09:27:07 vague as 09:27:08

And

--

and 1'11

It's

to time.
MR. WILLEN:

Sure.

13 09:27:08 BY MR. WILLEN:
14 09:27:08

Q.

In 2006, the time that the company was

15 09:27:12 incorporated.
16 09:27:12

A.

Right. So digital fingerprinting is an

17 09: 27: 19 area of audio science or video or media science, I
18 09: 27: 22 would say, that extracts a set of key frequency

19 09: 27: 28 characteristics from the signal, and assembles

20 09: 27: 35 those -- extracts from those key frequency
21 09: 27: 39 characteristics, or compiles them into a signature,

22 09:27:42 as it were, a digital fingerprint.
23 09:27:46

This fingerprint can then be utilized to

24 09: 27: 49 find that same signature in media, even if it has

25 09: 27: 53 been highly altered, distorted, compressed.

15
1

Nicholas Seet San Francisco, CA November 24, 2009
The key to a good fingerprinting system is

2 09:28:00

3 09: 28: 05 being very accurate, very robust to noise and
4 09:28:11 distortions, and very fast.
5 09:28:16

Q.

So in -- at the time the company opened,

6 09:28:20 was the fingerprinting technology that Auditude had

7 09: 28: 23 developed being used for anything else other than

8 09:28:25 what you described as tracking advertisements on

9 09:28:29 broadcast media?
10 09:28:30 11 09:28:31

A.
Q.

At -- at what time?

Yeah, 2006, the company -- when the

12 09:28:34 company was founded.
13 09:28:36

A.

We were doing ad tracking, but we were

14 09: 28: 41 also doing music identification, based on radio air

15 09:28:47 play.
16 09:28:48
17 18

Q.

Okay. Were you -- were you also doing

09:28:51

09:28:53 09:28:56
09:28:58

Internet content monitoring at that time? A. Not at -- not at that time, no.
Q.

19

Okay.

But

-- but

I

think

you

testified

20 21
22

09:29:00 09:29:03 09:29:04 09:29:05

earlier that there -- there came a time when Auditude started getting in the business of Internet
content monitoring?
A.
Q.

23 24 25

That

is correct.
the

Now, when was

rst

time that Audi tude

09:29:08 had

the idea of shifting

its business

to focus on

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Nicholas Seet San Francisco, CA November 24, 2009

2 09:29:11
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09:30:05
09:30:08

09:30:10
09:30:11 09:30:14 09:30:21 09:30:25

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09:30:30
09:30:32

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Nicholas Seet San Francisco, CA November 24, 2009

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09:31:02 09:31:04 09:31:07 09:31:12 09:31:14

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1

Nicholas Seet
10:45:06
10:45:07
A.
Q.

San

Francisco,

CA

November 24, 2009

2 3
4

Yes.
SO

was

there

a

specific discussion that

10:45:09 you

recall about using
on YouTube?
A.

Audi tude to monetize Viacom

5

10:45:16

content

6 10:45:18

Not specifically on YouTube.

It was a

7 10:45:20 general statement that they were interested in that

8 10: 45: 23 data for moneti za tion, amongst other things.
9 10:45:26

Q.

And what were the other things, in

10 10:45:28 addition to monetization, that Viacom was

11 10: 45: 30 interested?
12 10:45:32

A.

I would be assuming that copyright

13 10:45:37 enforcement was one of them, and that may have been

14 10: 45: 40 mentioned at that meeting.
15 10:45:44 specifically.
16 10:45:46

I don't recall,

Q.

Did Viacom, in

in those meetings that

17 10:45:49 you had, ever tell Auditude that it was important to

18 10: 45: 52 Viacom that Audi tude develop a video-based
19 10: 45: 57 fingerprinting technology, in addition to its

20 10: 45: 59 audio-based fingerprinting technology?
21 10:46:03 22 10:46:05 23 10:46:09

A.
Q.

In the initial meetings, no.

In any subsequent meetings?

A.

Yes. The subsequent meetings pointed out

24 10: 46: 12 that having video fingerprinting would make the
25 10: 46: 20 manual review process of the detections much more

68
1

Nicholas Seet San Francisco, CA November 24, 2009

2 10 : 46 : 24 e f f i c i en t .
3 10:46:26

So, in other words, video fingerprinting

4 10: 46: 30 was looked at as a significant time saver for the

5 10:46:35 manual review process of the Auditude results.
6
7

10:46:38

Q.

And why was

that?

10:46:43 10:46:45 10:46:53 10:47:00 10:47:07 10:47:12 10:47:17 10:47:25 10:47:33 10:47:34 10:47:37

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10:47:46
10:47:49

10:47:50
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10:47:56

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Nicholas Seet San Francisco, CA November 24, 2009

2 10:48:00
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13 10:48:38

14 10:48:39

Q.

All right. So Viacom and Audi tude

15 10:48:42 ultimately signed a contract for Viacom to use

16 10: 48: 45 Audi tude's CopyID tool?
17 10:48:48

A.

That's correct.
MR. WILLEN: Okay. Let's actually

18 10:48:53

19 10:48:55 introduce that agreement, so we can all be on the
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21
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10:48:59 same 10:49:03 10:49:04
10:49:04

page.

This will be Exhibit

THE REPORTER: 7.
MR. WILLEN: Exhibit 7.

23 24 25

(Deposi tion Exhibit Number 7 was marked
for identification.)

10:49:04