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)

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - -x VIACOM INTERNATIONAL INC., COMEDY: PARTNERS, COUNTRY MUSIC : TELEVISION, INC., PARAMOUNT : PICTURES CORPORATION, and BLACK : ENTERTAINMENT TELEVISION LLC : Plaintiffs, : : v. : Case No. : 07CV-2103 YOUTUBE, INC., YOUTUBE, LLC, : and GOOGLE, INC., : : Defendants. : - - - - - - - - - - - - - - - - -x THE FOOTBALL ASSOCIATION PREMIER : LEAGUE LIMITED, BOURNE CO., : et, al., on behalf of themselves : and all others similarly situated: : Plaintiffs, : : Case No. v. : 07CV-3582 : YOUTUBE, INC., YOUTUBE, LLC, : and GOOGLE, INC., : : Defendants. : - - - - - - - - - - - - - - - - -x ****HIGHLY CONFIDENTIAL**** Videotaped Deposition of DEAN GARFIELD Washington, D.C. Tuesday, November 2, 2009 10:24 a.m. BY: Okeemah S. Henderson, LSR JOB NO. 18039

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

6aae5b97-da0d-45e9-bdd3-aa65af92aafa

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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A P P E A R A N C E S: FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: STUART J. BASKIN, ESQUIRE SHEARMAN & STERLING, LLP 599 Lexington Avenue New York, NY 10022 [phone] FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: MICHAEL B. DESANCTIS, ESQUIRE LUKE C. PLATZER, ESQUIRE JENNER & BLOCK, LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 [phone] FOR THE DEFENDANTS YOUTUBE: DAVID H. MCGILL, ESQUIRE MAYER BROWN, LLP 1675 Broadway New York, NY 10019 [phone] FOR THE DEFENDANTS THE FOOTBALL ASSOCIATION: LAUREN A. MCMILLEN, ESQUIRE BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 [phone] FOR THE WITNESS, DEAN KELLY M. KLAUS, MUNGER TOLLES & 355 South Grand Los Angeles, CA [phone] ALSO PRESENT: Conway Barker, Videographer Orit Michiel GARFIELD: ESQUIRE OLSEN LLP Avenue, 35th Flr 90071

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

6aae5b97-da0d-45e9-bdd3-aa65af92aafa

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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I-N-D-E-X
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Deposition of DEAN GARFIELD November 2, 2006 EXAMINATION BY: Mr. Baskin Mr. McGill EXHIBITS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 E-Mail chain dated 4/28/06 E-Mail chain dated 8/18/06 E-Mail chain dated 9/25/06 E-Mail chain dated 10/12/06 E-Mail chain dated 10/17/06 E-Mail dated 10/23/06 PAGE: 6 58 PAGE 14 23 25 31 37 39

E-Mail chain with proposal 11/8/06 41 E-Mail dated 1/19/07 E-Mail chain dated 1/31/07 E-Mail chain dated 2/27/07 Article Article from Gazette The Tech online newsletter E-Mail chain dated 10/17/06 Article 47 48 53 94 107 110 120 134

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

6aae5b97-da0d-45e9-bdd3-aa65af92aafa

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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1 2 10:23 10:23 10:23 10:23 10:23 10:23 10:23 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 10:24 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

P-R-O-C-E-E-D-I-N-G-S (10:24 a.m.) THE VIDEO OPERATOR: This is the

beginning of tape No. 1 in the videotape deposition of Dean Garfield taken by Mr. Baskin in the matter of Viacom International Incorporated, et al versus YouTube, Incorporated. Case No. 07-CV-2103 and the

Football Association Premier League Limited Bourne Company, et al. versus YouTube Incorporated, et al in the United States District Court for the Southern District of New York. This deposition is being held at Jenner & Block, LLP, 1099 New York Avenue, Northwest Washington, D.C. on November 2nd, 2009. time is approximately 10:24. The Court The video The

Reporter is Okeemah Henderson.

camera operator is Conway Barker, both on behalf of David Feldman Worldwide. Will

counsel please identify yourselves and state whom you represent. MR. BASKIN: I am Stuart Baskin of

Shearman & Sterling, and I am counsel for Viacom in this litigation.

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

6aae5b97-da0d-45e9-bdd3-aa65af92aafa

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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10:24 10:24 10:24 10:24 10:24 10:24 10:25 10:25 10:25 10:25 10:25 10:25 10:25 10:25 10:25 10:25 10:25 10:25 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

MR. PLATZER:

Luke Platzer of Jenner

& Block, also counsel for Viacom in this litigation. MS. MCMILLEN: Lauren McMillen of

Bernstein Litowitz Berger & Grossmann, counsel for the Football Association Premier League Limited and other class plaintiffs in this litigation. MR. DESANCTIS: Michael DeSanctis of

Jenner & Block with the Viacom plaintiffs. MR. MCGILL: David McGill from Mayer

Brown, here on behalf of YouTube and Google. MR. KLAUS: Kelly Klaus from Munger

Tolles & Olsen appearing on behalf of the witness, and with me is Orit Michiel of the Motion Picture Association of America. THE VIDEO OPERATOR: swear in the witness. Whereupon, DEAN GARFIELD, called as a witness, having been first duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: Would you please

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

6aae5b97-da0d-45e9-bdd3-aa65af92aafa

6 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 10:25

EXAMINATION BY COUNSEL FOR PLAINTIFF BY MR. BASKIN: Q. Good morning, sir. Could you recite

10:25 your full name for the record? 10:25

A.

Certainly.

It is Dean, D-E-A-N,

10:25 Christopher Garfield, G-A-R-F-I-E-L-D. 10:25 10:26 sir? 10:26 10:26 10:26

Q.

And which state do you reside in,

A. Q. A.

I reside in Washington, D.C. How are you currently employed? I'm employed by the Information

10:26 Technology Industry Council. 10:26

Q.

What is your position with the

10:26 Information Technology Industry Council? 10:26

A.

We simply call it ITI.

I'm the

10:26 president and CEO. 10:26

Q.

And without belaboring, since this

10:26 is not of direct relevance to the suit, can you 10:26 tell us what the ITI does? 10:26

A.

ITI is the premiere voice, advocate,

10:26 thought leader for the information 10:26 communications technology sector.

We represent

10:26 the major household name brands before global 10:26 policymakers. 10:26

So our member companies include --

7 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 10:26 actually all of the technology in this room is 10:26 made by those companies.

So IBM, HP, Dell, We have

10:26 Apple, Microsoft just to name a few. 10:26 43 members. 10:26

Q.

How long have you been president and

10:27 CEO of ITI? 10:27 10:27

A. Q.

For about eight months. And prior to that -- strike that.

10:27 Can you just tell the ladies and gentlemen of 10:27 the jury a little bit about your educational 10:27 background and what degrees you hold? 10:27

A.

I can.

How far back do you want me

10:27 to go? 10:27

Q.

I don't think we have to go to Why don't we start with college.

10:27 kindergarten. 10:27

A.

College, I went to Middlebury Post then went to

10:27 college and I received a BA.

10:27 grad school and law school, so Woodrow Wilson 10:27 School at Princeton.

I have a masters in

10:27 public administration international affairs and 10:27 jointly with that went to law school at NYU 10:27 where I received my JD. 10:27

Q.

Just briefly again, can you walk us

10:27 through your employment crinology after you 10:27 received your educational degrees?

8 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 10:27

A.

Post my law postgraduate degree, I

10:28 worked at a firm in New York, Kaye Scholer 10:28 Fierman Hays & Handler, worked there for six 10:28 and a half years approximately. 10:28 10:28

Q. A.

That would be a law firm? Yes. Correct. Post working at Kaye

10:28 Scholer both in New York and Washington, D.C., 10:28 I worked at the Recording Industry Association 10:28 of America representing the major U.S. record 10:28 labels. 10:28

After that I moved on to working for the

10:28 Motion Picture Association of America 10:28 representing the major and motion picture 10:28 companies and then about nine months ago, left 10:28 there to work at ITI. 10:28 10:28 10:28 10:28

Q. A. Q. A.

Are you currently married, sir? Yes, I am. Do you have any children? Yes, I do. I have two children and

10:28 one wife. 10:28

Q.

You mentioned that prior to working

10:28 for the Motion Picture Association, which we'll 10:28 get to in a few minutes, you worked for an 10:29 organization called the Recording Industry 10:29 Association.

Did that go by initials also?

9 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 10:29

A.

Yes, it does.

It went by and it

10:29 still does go by RIAA. 10:29

Q.

In brief again, what was your

10:29 position with the RIAA? 10:29

A.

I think it changed over time but

10:29 essentially I was a litigator and at some 10:29 point, I think I was the head litigator or 10:29 something like that. 10:29 10:29 RIAA? 10:29 10:29

Q.

How long did you remain with the RIA

A. Q.

Four years. During the course of this trial, the

10:29 jury will see some documents referencing 10:29 something called Grokster.

Could you in brief

10:29 just tell the jury -- do you know what 10:29 Grokster, what the reference is a court case 10:29 named Grokster? 10:29 10:29 10:29 case? 10:29 10:29

A. Q.

Yes, I do. Were you involved with that court

A. Q.

Yes, I was. Can you just again, not belaboring

10:29 it, for 30 seconds just advise the ladies and 10:29 gentlemen of the jury what Grokster is so that 10:29 when they hear reference to it they know what

10 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 10:29 it means? 10:29

A.

Grokster was a litigation that was

10:29 filed jointly by the Recording Industry 10:30 Association and the Motion Picture Association 10:30 against a company that developed a software 10:30 tool that encouraged users to engage in 10:30 copyright infringement. 10:30

Q.

During your time as principal lawyer

10:30 for the RIAA, did you have responsibilities 10:30 include addressing issues of copyright 10:30 infringement and policy? 10:30 10:30

A. Q.

Yes, it did. Now, you mentioned after your four

10:30 years or so at the RIAI (sic) you moved over to 10:30 an organization called the Motion Picture 10:30 Association, correct? 10:30

A.

Yes.

I worked at the RIAA for about

10:30 four years and then moved to MPAA. 10:30

Q.

MPAA and the acronym stands for

10:30 Motion Picture Association of America; is that 10:30 correct? 10:30 10:30 10:30

A. Q. A.

Correct. What companies comprise the MPAA? The MPAA consists of the major U.S.

10:31 motion picture companies but they are also the

11 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 10:31 global leaders in developing and marketing 10:31 motion pictures. 10:31

Q.

I think the jury may be familiar Can you just recount

10:31 with some of the names.

10:31 for us some of the names of members of the 10:31 MPAA? 10:31

A.

Sure.

So our members included

10:31 Disney, Sony, Warner Brothers, Universal, and I 10:31 suspect that I'm leaving out someone. 10:31

Q.

Does Century Fox refresh your

10:31 recollection? 10:31

A.

Thank you.

Jim Gianapolis

10:31 (phonetic) and Peter Turner will be pleased 10:31 that I forgot their company, yes, so Fox is 10:31 also one of our members.

And at some point in

10:31 time we had other members but some of those 10:31 companies (inaudible). 10:31

Q.

Would it be fair to summarize it for

10:31 the jury that the constituency of the MPAA is 10:32 essentially the major film studios that create 10:32 movies and many TV shows? 10:32 10:32

A. Q.

Correct. And by the way, one studio that you

10:32 did mention was also Paramount, correct? 10:32

A.

Yes.

12 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 10:32

Q.

And that one you understand is owned

10:32 by my client, Viacom; is that correct? 10:32 10:32 10:32

A. Q. A.

Correct. What were your responsibilities -That's why I said including just so

10:32 I wouldn't offend anyone. 10:32 10:32 MPAA? 10:32

Q.

What was your position, sir, at the

A.

My role at the MPAA also changed When I

10:32 over time, just as it did at the RIAA.

10:32 came into the MPAA, I was essentially the head 10:32 litigation attorney and then over time it 10:32 progressed, and when I left I was an executive 10:32 vice president and the chief strategic officer. 10:32

So I came in in a legal role.

I continued

10:33 to have a legal role for much of my career 10:33 there but my title changed and I took on 10:33 broader responsibilities over time. 10:33

Q.

Was one of your responsibilities at

10:33 the MPAA addressing issue of piracy of movies 10:33 and television shows on the internet? 10:33 10:33

A. Q.

Yes, it was. Now, can you just explain again

10:33 briefly, you need not belabor it but for the 10:33 ladies and gentlemen of the jury, why the film

13 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 10:33 studios that comprise the MPAA are concerned 10:33 with issues of piracy or legal content on the 10:33 internet? 10:33

A.

Well, the in simplest terms,

10:33 creating a movie is a very expensive 10:33 investment.

When I was at the MPAA, the

10:33 average cost for a movie was over $105 million 10:33 and so it was a significant investment made and 10:33 certain expectations and plans for recouping 10:34 that investment over time through legitimate 10:34 channels. 10:34

So to the extent that those creative works

10:34 were being exploited in nonlegitimate channels, 10:34 it would reduce the likelihood of getting a 10:34 return on that investment. 10:34

Q.

If I could direct your attention to

10:34 the year 2006, did you personally engage in 10:34 discussions with a company called YouTube? 10:34

A.

Yes, I did.

I know that I did in

10:34 2006 but the exact timing in 2006 is not 10:34 something that I recall. 10:34

MR. BASKIN:

Now, let me hand you Let me

10:34 just as a matter of dating the context.

10:35 hand you what I would ask the Court Reporter to 10:35 mark as Garfield Exhibit 1.

14 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 10:35 10:35 10:35 10:35

(Garfield Deposition Exhibit No. 1 was marked for identification.) BY MR. BASKIN: Q. It's a short document, Mr. Garfield.

10:35 So just if you take a second if you will and 10:35 look at Garfield Exhibit 1. 10:35 10:35

A. Q.

(The witness complies.) Okay. Now, first, sir, just for the record

10:36 can you identify for us and confirm that 10:36 Garfield Exhibit 1 consists of a document 10:36 reflecting an E-mail chain in which you were a 10:36 participant in or around April, 2006? 10:36 10:36

A. Q.

Correct. Does this document -- does Garfield

10:36 Exhibit 1 help to establish in your mind that 10:36 you were in discussions with YouTube at least 10:36 in and around April, 2006? 10:36 10:36

A. Q.

Yes, it does. Can you just tell briefly, the

10:36 ladies and gentlemen of the jury, what was 10:36 generally the topic of your discussions with 10:36 YouTube in and around April, 2006? 10:36

A.

The discussion was about encouraging

10:37 YouTube to do two things; deal with content 10:37 that we identified on the site that was

15 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 10:37 copyrighted, infringement content from the 10:37 motion picture studios; and two, and relatedly 10:37 integrating filtering software that would 10:37 address that copyrighted content. 10:37

Q.

Now, as of April, 2006 did the MPAA

10:37 find that a substantial amount of the film 10:37 studios copyrighted content was being exhibited 10:37 on the YouTube website? 10:37 10:37

MR. MCGILL: A.

Objection.

Leading.

In April, 2006 there was a lot of

10:37 copyrighted content on the site that was owned 10:37 or controlled by the motion picture studios and 10:37 that was one of the reasons I reached out the 10:37 YouTube. 10:37 10:37

BY MR. BASKIN: Q. Now, you made reference two answers

10:37 ago to a desire to institute discussions 10:38 regarding filtering on the YouTube website. 10:38 you look at Exhibit 1 for a second, you will 10:38 see on a couple of places, certainly in the 10:38 first on the top E-mail and on the very bottom 10:38 E-mail, you make reference to technical 10:38 discussions or technical folks, or instituting 10:38 technical folks into the dialogue. 10:38

If

Was that a reference to individuals'

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knowledgeable of the issue of filtering and fingerprinting technologies? A. Correct. MR. MCGILL: Objection to the

characterization of the document. A. Correct. As I mentioned, there was

a two-fold purpose to the discussion and one of the purposes was to talk about integrating filtering technology software. And so I think

on that very first call, I was the only one participating while YouTube had other folks and I wanted to make sure folks from our side who had the technical expertise were also part of the discussion. BY MR. BASKIN: Q. Now, I think the second E-mail on

Garfield Exhibit 1 references at least three participants of YouTube. Was one such

participant a man named Chris Maxcy, M-A-X-C-Y? A. Q. Correct. Yes.

Do you recall what Mr. Maxcy's title

was at YouTube at the time or what his position was? A. I don't recall what his title was.

I was introduced to Chris as a result of Chris

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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wanting to build a stronger relationship with the Motion Picture Association and conversations he had with Dan Glickman, so I followed up with him based on that. Q. Then there was reference to two Do you see

other individuals, a Steven Chen. that, sir? A. Q. A. Q. Yes, I do. And a Zahavah Levine? Yes, I do.

Mr. Chen is denominated by Mr. Maxcy

as co-founder and chief technology officer of YouTube. of 2006? A. I don't recall if I had an Was that your understanding in April

understanding in April, 2006. Q. And Ms. Levine, Zahavah Levine is

identified as general counsel and vice president of business affairs. Was that your

understanding in that time period? A. I did have an understanding of

Zahavah's role because I knew Zahavah even before this conversation. Q. YouTube? You knew her prior to her arrival at

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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A. Q.

Yes, I did. Now, you mentioned a concept which

you referred to as filtering or fingerprinting and the jury may sometimes here it at copyright identification tools. Based on your experience

at the RIAA and the MPAA, were you familiar with many of the filtering technologies that were available as of the middle of 2006? A. Q. Yes, I was. Was there one such company that

employed or deployed filtering technology called Audible Magic? A. Q. Yes. Were you in 2006 familiar with

Audible Magic technology? A. Q. Very. In laymens term and briefly, can you

explain to the ladies and gentlemen of the jury what these filtering and fingerprinting technologies what they do? Assuming what they

did in 2006 and I'll just add if it's changed a lot since then, then you can tell us. But

going back to 2006, can you explain to the ladies and gentlemen of the jury what these filtering technologies or fingerprinting

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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technologies did? A. Actually, fingerprinting

technologies is an apt way to describe it because they work in a very similar fashion to a human fingerprint. So just as can recognize

a human fingerprint, they way they would work is they would take a digital stamp of a file, in this context an audio-visual file, capture that visual, that fingerprint and then in subsequent occasions be able to tie the fingerprint to the particular audio-visual content. So it's a way of identifying a piece of content beyond just the name of the movie or the song. Q. I assume companies like Audible

Magic use computers and technology to do these matches? MR. MCGILL: A. Objection to form.

They do use computer and other

technologies in order to be able to align a particular audio-visual work with its digital fingerprint. BY MR. BASKIN: Q. Now, in and around 2006, had the

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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DEAN GARFIELD - HIGHLY CONFIDENTIAL
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MPAA assessed the effectiveness of filtering on fingerprint technologies in protecting the movie industry's intellectual properties on internet websites that deploy those technologies? MR. MCGILL: Vague. A. The MPAA did conduct an analysis. I Objection to form.

don't recall the exact timing of that analysis and whether it were concluded in April of 2008. I'm sorry 2006. BY MR. BASKIN: Q. In 2006 and for that matter into

2007, do you know what was the MPAA's assessment of the effectiveness of fingerprinting and filtering technologies in protecting the movie industry's intellectual property on websites that deploy those technologies? MR. KLAUS: If I can just interpose

it's not an objection but in the course of answering the question, Mr. Garfield, if I could just caution you to confine your responses to matters that were publically discussed or discussed with others and not to

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reveal internal communications that may be work product. MR. BASKIN: question. I will strike the

That's a fair reservation on the Let me phrase it this

part of your counsel. way:

In 2006 and 2007, from time to time you discussed with the press the MPAA's assessment of effectiveness of fingerprint technologies; isn't that right sir? MR. MCGILL: A. Objection. Leading.

I do have a recollection of speaking

to the press and generally publically about fingerprinting technologies at some points in 2006. Yes. BY MR. BASKIN: Q. And again without belaboring the

deposition, can you tell the ladies and gentlemen of the jury what you remember were the positions you were expressing to the press in and around that time period regarding the effectiveness of these fingerprinting and filtering technologies if websites chose to deploy them? MR. MCGILL: Objection. Vague.

DAVID FELDMAN WORLDWIDE, INC.
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A.

In simplest terms, the technologies

were highly viable and were worthy of further investment and integration into audio-visual sites that have an interest in discerning between content that's copyrighted and content that's not. BY MR. BASKIN: Q. Now, let's return if we can to your

discussions with YouTube in 2006, and at first, I want to focus on the time period before its acquisition by Google. Do you have -- well,

let me show you some documents, maybe that would help you differentiate between those two time intervals. But in your discussions with

YouTube in 2006, you said you were you've already testified you were tempting to discuss with them their deploying filtering and fingerprinting on their website; is that correct? MR. MCGILL: characterization. A. It was one of the things that we Correct. Objection to the

were talking about.

BY MR. BASKIN: Q. And let me show you if I can just so

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we can date it.

Let me show you a document

that we'll mark as Garfield Exhibit 2, mostly for the purpose of dating your discussions. understand your memory is not crisp on the dates. it? A. That's a fair characterization. I Is that a fair way of characterizing I

have a firm recollection of much of our conversations but the exact dates I don't have a strong grasp on. MR. BASKIN: Let me hand you if I can

what we'll mark as Garfield No. 2. (Garfield Deposition Exhibit No. 2 was marked for identification.) BY MR. BASKIN: Q. Sir, first can you identify for us

Garfield Exhibit 2 as consisting of again an E-mail chain of which you were a participant? A. Q. Yes, I can. Now, using Garfield Exhibit 2 as

really as a dating mechanism, is it accurate that your discussions with YouTube regarding instituting, filtering or fingerprinting on their network, on their website persisted certainly into August, 2006?

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A. Q.

Yes, it did. Do you recall during this time

period whether the MPAA was discussing with YouTube particular fingerprinting and filtering vendors that YouTube might deploy on their website to protect intellectual property of movie studios? A. My recollection is at some point in

these conversations we talked about a range of technology companies that were competing in the content recognition, fingerprinting phase, and so yes, I don't recall discussing one company with them. I recall talking to them about a

range of companies. Q. And I'll show you some documents in

a few minutes that might help refresh your memory but do you recall even absent some documents whether one such company was Audible Magic that you were discussing with them? A. Q. Yes, I do recall that. Let me show you and just so I

understand the protocol in the case. David, I'm going to be showing him a Google document now, which happens to be an E-mail chain with him but because as I

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understand that that's even though it's denominated highly confidential for purpose of the deposition, the stipulation allows us to show witnesses documents, but I want to show it to you to make sure you're comfortable in showing it to him before I do. MR. MCGILL: that. MR. BASKIN: So why don't we mark as Sure. Okay?

I appreciate

Garfield Exhibit 3 the document in my hand. I'm going to give YouTube's counsel a copy. I

will not give out any other copies until -- I might give one to co-counsel. MR. MCGILL: mark it. You can go ahead and

We have no objection.

(Garfield Deposition Exhibit No. 3 was marked for identification.) BY MR. BASKIN: Q. Does Garfield Exhibit 3 help you

refresh your recollection when you have lunch? But beyond that, can you identify Garfield Exhibit 3, although it is not a document from the MPAA, can you identify it again as a document consisting of an E-mail chain in which you are a participant in and around September,

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2006? A. Q. Yes. And based on that, can you confirm

that your discussions with YouTube regarding instituting possibly filtering systems continued into September, 2006? A. Q. Yes, I can. Now, if you look at the very last

E-mail on the chain, you'll see that Mr. Maxcy, Chris Maxcy, wrote to you on and about September 25th. "We are very close to getting

our fingerprinting systems licensed and wanted to take you up on your offer to do some testing of your members." A. Do you see that? I

It says testing for your members.

don't know if that makes a difference but. Q. You're right. Thank you for that.

But the question that I have for you, as you sit here today, do you recall which fingerprinting system Mr. Maxcy advised you they were very close to licensing as of the end of September, 2006? MR. MCGILL: Objection to the

characterization of the document. A. I don't recall.

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BY MR. BASKIN: Q. Now, I could represent to you that

YouTube, the acquisition of YouTube by Google for approximately $1.7 billion was announced in early October, 2006 and my question for you is, sir, am I correct that this testing described by Mr. Maxcy on Garfield Exhibit 3 did not occur as of October, 2006; is that correct, sir? MR. MCGILL: foundation. A. We did not engage in a testing with Objection. Lacks

them as of October, 2006. BY MR. BASKIN: Q. So just so the record is clear, for

the ladies and gentlemen of the jury, in the six or seven months between April, 2006, which was I believe the date on Garfield Exhibit 1 and October, 2006, did YouTube ever agree to use available filtering technologies to protect the film industry's content on its website? MR. MCGILL: lacks foundation. A. I'm sorry. Could you read the Objection to form. Also

question back?

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BY MR. BASKIN: Q. In the six months between the time

you started the negotiations in April until the acquisition by Google in October, and we're going get to what happened post acquisition, would it be fair to say that YouTube never agreed to use available fingerprinting technologies on its website to protect the MPAA's members in intellectual property? MR. MCGILL: A. Same objections.

To the best of my knowledge they had

not agreed to do that. BY MR. BASKIN: Q. Now, in fact in the course of your

negotiations with YouTube prior to the acquisition by Google, did you have a conversation with YouTube executives on the topic of why they would not filter? MR. MCGILL: foundation. A. We had multiple conversations about Yes. Objection. Lacks

that topic.

BY MR. BASKIN: Q. And do you recall prior to October Can you describe to the

2006 -- strike that.

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BY MR. BASKIN: Q. In the six months between the time

you started the negotiations in April until the acquisition by Google in October, and we're going get to what happened post acquisition, would it be fair to say that YouTube never agreed to use available fingerprinting technologies on its website to protect the MPAA's members in intellectual property? MR. MCGILL: A. Same objections.

To the best of my knowledge they had

not agreed to do that. BY MR. BASKIN: Q. Now, in fact in the course of your

negotiations with YouTube prior to the acquisition by Google, did you have a conversation with YouTube executives on the topic of why they would not filter? MR. MCGILL: foundation. A. We had multiple conversations about Yes. Objection. Lacks

that topic.

BY MR. BASKIN: Q. And do you recall prior to October Can you describe to the

2006 -- strike that.

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ladies and gentlemen of the jury as best you can recall what reason you were given by YouTube executives or executive, and we'll hash out who that was in a second, as to why they were not filtering in and around in 2006. MR. MCGILL: foundation. A. bit. So just if I can disaggregate that a Again objection. Lacks

There were ups and flows in the

conversation with YouTube where they at various points in time over that six-month period, I think it was expressed an interest but never came to a firm agreement on integrating any content recognition or fingerprinting technologies. At some point in those discussions when asked what's taking so long and why hasn't this progressed to an actual agreement, there were a range of reasons given including the fact that the copyrighted content on YouTube was a major lure for their users. I don't remember the

exact date of that conversation, but I firmly recall that conversation and that being one of the reasons offered. I do also recall that there were

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additional reasons.

I don't recall what all of

those other reasons were but that one stood out in my mind. BY MR. BASKIN: Q. And who communicated to you as best

you can recall that a reason for not signing up with filtering was because copyrighted content on YouTube website was serving as a lure for the users? MR. MCGILL: Mischaracterization. A. My conversations with YouTube often Objection.

included multiple people, so I don't recall specifically. I do recall that in that

conversation I think Zahavah Levine and Steve Chen were a part of that discussion. And I

also recall that there was a third person who was a technology, someone with a technology expertise. I don't recall which person specifically said that but I do recall very strongly that that was one of the reasons offered. out in my mind. BY MR. BASKIN: Q. Now, do you recall whether among the It stood

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other reasons that you mentioned being recited to you was the notion that having copyrighted content on their website provided YouTube with a leverage in its negotiations with the movie studios? MR. MCGILL: A. Objection. Leading.

I don't recall. BY MR. BASKIN:

Q.

Now, after Google's acquisition of

YouTube, again I represent to you it happened in October, 2006, it was announced at least I think, the merger was consummated thereafter but it was announced in early October, 2006. Did you engage in discussions with YouTube/Google on the topic of instituting, filtering or fingerprinting on the YouTube website? A. Close to the acquisition or the Absolutely. Just so we can date

announcement yes.

MR. BASKIN:

things and put a little flesh on the bones, let me show you what we will mark as Garfield Exhibit 4. (Garfield Deposition Exhibit No. 4 was marked for identification.)

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A.

Okay. BY MR. BASKIN:

Q.

Mr. Garfield, first once again can

you identify for us Garfield Exhibit 4 as consisting of an E-mail and attachment or an adjunct of an E-mail that was sent by you to Mr. Maxcy at YouTube in and around October 12, 2006? A. Q. Yes, I can. Now, by the way, did Mr. Maxcy ever

tell you how it felt to be rich? A. I don't recall. I recall that we

had some phone conversation but it was largely in jest. Q. Now, you will see attached at the

bottom of Garfield Exhibit 4 there is something called denominated as a proposal through October 13, 2006 copyright identification and filtering pilot test. A. Q. I do. Was this a test and a proposal that Do you see that, sir?

you were proffering to Google and YouTube in or around October, 2006? A. Q. Yes. Can you in your own words maybe in

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laymen's language explain to the ladies and gentlemen of the jury what were the basic content of this proposal that you proffered to YouTube and Google in and around October, 2006? MR. MCGILL: speaks for itself? A. As I mentioned before, the way Objection. The document

content recognition technologies generally work at a high level is just like fingerprinting. So with the fingerprint, you take a fingerprint, that fingerprint is connected with a particular person. In simplified terms the same content works with consent recognition which is take a digital fingerprint of a file and that's associated with that file, that has a name. And the idea was integrating that same, those same technologies into the publication process at YouTube/Google. So as we understood in advance of a file making it up on the site after a user submits it, YouTube engaged in certain processes and we were suggesting simply integrating content recognition into those processes as a way of recognizing and then removing unless they were

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otherwise licensed, copyrighted motion picture content. Q. Now, if I could direct your

attention in particular to the second page of Garfield Exhibit 4, there's reference to MPAA test. Do you see that, sir? Correct. And in particular the proposed test

A. Q.

contemplated using Audible Magic's music filtering service in the test. Had you learned

by then that that was the fingerprinting technology that Google and YouTube were instituting or had a license institute on the site? MR. MCGILL: Objection.

Mischaracterization of the document. A. I did learn at some point in time

that Audible Magic and YouTube had a business relationship and that YouTube was working with Audible Magic. I don't recall the exact date

and this document doesn't help me to recall. BY MR. BASKIN: Q. Do you recall, it's not in the

document, maybe you have an independent recollection, do you recall approximately the

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otherwise licensed, copyrighted motion picture content. Q. Now, if I could direct your

attention in particular to the second page of Garfield Exhibit 4, there's reference to MPAA test. Do you see that, sir? Correct. And in particular the proposed test

A. Q.

contemplated using Audible Magic's music filtering service in the test. Had you learned

by then that that was the fingerprinting technology that Google and YouTube were instituting or had a license institute on the site? MR. MCGILL: Objection.

Mischaracterization of the document. A. I did learn at some point in time

that Audible Magic and YouTube had a business relationship and that YouTube was working with Audible Magic. I don't recall the exact date

and this document doesn't help me to recall. BY MR. BASKIN: Q. Do you recall, it's not in the

document, maybe you have an independent recollection, do you recall approximately the

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cost of engaging in this test what it would have cost YouTube and Google to use Audible Magic's service for purposes of this test? MR. MCGILL: speculation. A. I don't recall the call structure I knew it at one point but Objection. Calls for

for Audible Magic.

I don't recall what it was, but my recollection was at some point we spoke to YouTube/Google about us deferring the cost. In fact in the memo one of the things that it points out is minimizing the out-of-pocket expense. So I know that I was always mindful

of not just with YouTube but with all of our and my overtures to use a generated sites like YouTube was to make sure that whatever we propose were dealing with copyright infringement was cost efficient for the site, if you will. So not adding a significant, new

expense to their operating cost and that was the same in this context with YouTube. Q. And I'm going to show you in a

second a second iteration from this proposal from about a month later. Do you recall

whether your offer to have the MPAA defray the

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BY MR. BASKIN: Q. Nothing further except for one line If you turn in the middle of

in the document.

the first page you will see that Mr. Kelly Liang wrote, "We look forward to launching a content filtering pilot with the MPAA some time towards the end of the year." Mr. Garfield? MR. MCGILL: speaks for itself. A. Yes, I do see that. BY MR. BASKIN: Q. And do you remember who Mr. Liang I think he was Objection. Document Do you see that,

was at this point in time?

introduced in an earlier E-mail? A. I do recall. My recollection was

that Chris transitioned some of the conversation and his involvement to Kelly who in addition to I think having some business role also had some technical expertise and so there were other folks from Google/YouTube who continued to be a part of the conversation but Kelly helped to drive a lot of it over this ladder part of the year. MR. BASKIN: Now, in that period, I'd

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like to show you next what we will mark as Garfield Exhibit 7. (Garfield Deposition Exhibit No. 7 was marked for identification.) A. I traveled a lot when I worked at So

the MPAA, that's clear from these E-mails. I'm ready. I have reviewed it.

MR. BASKIN: traveled to -A. Yes.

You mean you physically

Every evening it says I'm on

the road or I'm traveling here or traveling there. BY MR. BASKIN: Q. First, can you identify for us

Garfield Exhibit 7 as an E-mail and accompanying proposal that you E-mailed to Kelly Liang in and around November 8, 2006? A. Q. Yes. Now, based on the E-mail paragraph

beginning Hi Kelly, it makes reference to "I am attaching below a revised proposal based on our last discussion as well as the RFI we discussed." A. Q. Do you see that, sir?

I do. Can you just explain, first of all

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to the ladies and gentlemen of the jury, what the reference to RFI is? A. The reference to RFI is a reference

to a request for information and I don't know if that's an apt term, it's a term that we used at the time. It was really a request for

proposals in around that time the MPAA sponsored and ran a request for proposals around content recognition technologies. Q. And as you sit here now, other than

the reference in that paragraph do you recall the proposal dated November 9, 2006 was a result of your discussions with Mr. Liang? A. Yes. There were changes in the

document that reflect our conversation and some of those changes are reflected in the end of the document. Q. For example, if you turn to page

that's Bates, the second page of the document, it appears that the test period from the first proposal to the second has grown from 30 to 45 days. Is that one of the changes that you were

just referring? A. Yes, it is, as well as coming up

with Key Metrics, which I recall that YouTube

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and Google were interested in and we are were as well, so it wasn't a huge deal to agree that's something that should be included. Q. Can you tell again the ladies and

gentlemen of the jury what you mean by Key Metrics, what that phrase refers to? A. It was an attempt to have clarity

going into the pilot and how we would evaluate whether the tests worked and were successful, and so defining the measurements up front would prevent misunderstandings midway or after the pilot. Q. Now, there is a reference under test

parameters one of the metrics was number fingerprints generated from manual review (blacklist and white list). A. Q. I do. The reference to blacklist or white Do you see that?

list was also found in a couple of bullet points above that you'll see as well. Can you

explain to the ladies and gentlemen of the jury what was meant by blacklist and white list? MR. MCGILL: speculation. A. I was the one who was largely Objection. Calls for

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drafting this document, so I can tell you how I was using the terminology. So there I guess

there are multiple ways but two popular ways of dealing with recognizing content and then filtering it in or out. So the filtering

process is essentially like a strainer and so you have content going through the strainer; some things make it through the strainer and some things end up being caught in the strainer. If you take a blacklist approach, then you identify a list of stuff that should be excluded out and that should be caught in the strainer. If you take a white list approach,

you create a list of stuff that should make it true as opposed to a list that should be kept out. That's the blacklist versus white list.

Was that clear? Q. Well, we're going to go into it a

little bit more but it was certainly a good first articulation. bit further. So let's take it a little

If I understand your answer, you

were saying that the blacklist would consist of fingerprints of videos which the studios would disapprove for uploading and hence would be

DAVID FELDMAN WORLDWIDE, INC.
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captured by the strainer; is that correct, sir? A. Q. Correct. And by contrast, the white list

would consist of fingerprints of videos which the studios authorized or approved for uploading and hence, they would pass through the strainer; is that correct? A. Q. Correct. Why might a studio choose to have a

white list, have it placed on a white list -strike that. Why might a studio choose to have

placed on a white list videos that were authorized to be uploaded on the website? A. Well, I can just tell you what I

knew based on my using the language which is that there were, it was simply a recognition of fact that the studios were authorizing and doing deals with sites like YouTube, Google where they would authorize certain content to be used. So in order for this to be effective so as not to train out or eliminate content that the studios actually wanted to make available on any of these sites, we would have that approach of having a white list.

DAVID FELDMAN WORLDWIDE, INC.
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Q.

So to sort of sum up for the jury,

the second proposal after your discussions with Mr. Liang contemplated that this fingerprinting and filtering technology would be used to distinguish between videos that were uploaded with authorization and videos that should be blocked because they were uploaded without authorization; is that correct? MR. MCGILL: Objection to the

characterization and the leading nature. A. I'm sorry. I just misheard you. I just want to

Could you just say it again?

make sure I heard you properly? BY MR. BASKIN: Q. This proposal as of November, 2006

contemplated using fingerprinting and filtering technology to distinguish between videos that were being uploaded with the permission of the studios versus videos that were being uploaded without authorization and permission? MR. MCGILL: A. Yes. Same objection. That was the

Correct.

contemplation.

Just one thing on Kelly Liang. I don't recall if Sorry.

We've been saying mister. Kelly is a man or a woman.

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pilot and their filtering processes would be used for their business partners and those who established a licensing relationship with Google/YouTube but not with the studios generally. BY MR. BASKIN: Q. The jury may not understand what you

mean or what they meant by the fact that the technology, the filtering technology would be reserved for their business or licensing partners. Can you explain to the ladies and

gentlemen of the jury what that means, sir? What was meant by licensing and business partners? A. The way I interpreted it was we were

having a conversation earlier about the white list and the blacklist and filtering and filtering out. The studios developed, marketed

movies, television shows, they then make a decision on partners with whom they're going to exploit those copyrighted works, so market and distribute those copyrighted works. So Google essentially conveyed that they would work on getting authorization from the studios and licenses from the studios and

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others and those who would license, they would then in the context of that licensing arrangement work in integrate filtering. But

for those companies who were not and did not develop a licensing arrangement with Google, they weren't going to be doing this sort of a pilot initiative or filtering. MR. BASKIN: for the tape. I think we have to break

Shall we break for the tape now? This is the end

THE VIDEO OPERATOR: of tape 1.

Off the record at 11:39.

This is the beginning of tape 2 in the deposition of Mr. Garfield. 11:49. BY MR. BASKIN: Q. Sir, again to help you with the Let me show you what we On the record at

dates a little bit.

will mark as Garfield Exhibit 10. (Garfield Deposition Exhibit No. 10 was marked for identification.) A. Okay. I have read it.

BY MR. BASKIN: Q. Sir, first, again can you identify

for us Garfield Exhibit 10 as consisting of an E-mail chain in which you were a participant

DAVID FELDMAN WORLDWIDE, INC.
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70 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 12:11 date? 12:11

A.

Just to be clear, I left the MPAA in

12:11 at the end of 2008, so it was about a year, a 12:11 little over a year after the case was filed I 12:11 was gone.

So we talked about it intermittently

12:11 but it wasn't a constant topic of conversation 12:11 and the MPAA wasn't involved in the litigation, 12:11 so there wasn't a reason for me to talk about 12:11 it a lot or frequently. 12:11

Q.

I take it the reason that you have

12:11 spoken with him on occasion about it was 12:11 because Paramount pictures was one of the 12:11 member studios of the MPAA; is that correct? 12:11 12:11

A. Q.

Correct.

Correct.

And I think we established this

12:11 already, Paramount is owned by Viacom? 12:11 12:11

A. Q.

Correct. I think you testified earlier that

12:11 your position at the MPAA was executive vice 12:11 president but did you also hold the title of 12:11 chief strategic officer? 12:11 12:11

A. Q.

Yes, I did. And when did you get that title if

12:12 you can recall? 12:12

A.

My recollection was that it was

71 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 12:12 late -- I would like to say it was late 2005 12:12 but I really don't recall. 12:12

I'm sorry.

Q.

Now, putting aside the specific

12:12 issue of this litigation I take it that in your 12:12 capacity as chief strategic officer for the 12:12 MPAA you were in regular communication with 12:12 Viacom about copyright enforcement issues; is 12:12 that fair to say? 12:12 12:12

A. Q.

Yes.

That's fair to say.

And what are some of the topics that

12:12 you would discuss within that overall framework 12:12 with Viacom? 12:12

MR. KLAUS:

I would just caution you

12:12 that in the course of your communications with 12:12 Viacom, to the extent those reflect privileged 12:12 communications you should not reveal them and 12:12 if you have a question about how far down from 12:13 the very general topic of copyright enforcement 12:13 do some specific topics go, that's something we 12:13 can step outside and try to disentangle. 12:13

MR. MCGILL:

Just to make sure the

12:13 record is clear, your position is that any 12:13 privileged information that was related to 12:13 Viacom from the MPAA would retain its 12:13 privileged nature?