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

Filing 228

DECLARATION of Michael Rubin Part 3 in Support re: 177 MOTION for Summary Judgment Regarding Applicability of the DMCA and on Plaintiffs' Inducement Claims.. Document filed by Youtube, Inc., Youtube, LLC, Google, Inc.. (Attachments: # 1 Exhibit 1 to Rubin Declaration Part 3, # 2 Exhibit 2 to Rubin Declaration Part 3)(Schapiro, Andrew)

RUBIN DECLARATION EXHIBITS CONTINUED

Rubin Exhibit 121

)

COM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES COPRORA nON, and BLACK ENTERTAINMENT TELEVISION LLC,
VIA

) ) ) ) Case No. 1:07-CV-2103-LLS
) (Related Case NO.1 :07-cv-03582 (LLS))

)

Plaintiffs,
v.

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

) ) ) ) ) ) )
)

)

Defendants.

) )

PLAINTIFFS' OBJECTIONS AND RESPONSES TO YOUTUBE'S THIRD SET OF INTERROGATORIES TO VIACOM INTERNATIONAL, INC. ET AL.
Plaintiffs Viacom International Inc., Comedy Partners, Country Music Television,

Inc., Paramount Pictures Corporation, and Black Entertainment Television, LLC, by their

attorneys Jenner & Block LLP and Shearman & Sterling LLP, hereby object to and
respond to YouTube's Third Set of Interrogatories to Viacom International, Inc.
(Defendants' Third Set ofInterrogatories) as follows:

GENERAL OBJECTIONS

Plaintiffs make the following objections to specific Interrogatories by, among
other things, incorporating by reference the following general objections ("General

Objections"):

1

1. Plaintiffs object to the Third Set of Interrogatories in their entirety as exceeding

the scope permissible under Local Rule 33.3(b), which states that interrogatories other

than those seeking names of witnesses with relevant knowledge or information only if
ordered by the court or if interrogatories are "a more practical method of obtaining the
information sought than a request for production or a deposition." Defendants'

interrogatory requests are unduly burdensome and duplicative of

their document requests.

2. Plaintiffs object to the Third Set of Interrogatories in their entirety as exceeding,

with subparts, the limit of

twenty-five Interrogatories under the Court's Scheduling Order

entered on August 9, 2007. Plaintiffs have already identified over 60,000 video clips that

infringe its copyrights. Interrogatories 14, 15, 16, 17, 18, 19, 20, and 21 purport to
request specific information about each of those thousands of infringing clips on a clipby-clip basis; Interrogatory 25 seeks detailed information about each of Defendants' 213

Requests for Admission. Defendants' interrogatories thus impermissibly exceed the
twenty-five interrogatory limit.
3. Plaintiffs object to Defendants' definition of "Viacom," which includes entities

listed in Paragraph 3 of the Definitions. Paragraph 3 makes up a voluminous, globespanning listing of Plaintiffs' partners, affliates, and subsidiaries. Defendants' inclusion
of these entities is vexatious and improper. Plaintiffs further object to Defendants'

definition of "Viacom" to the extent that it includes Plaintiffs' outside counsel, because

searching for responsive information in the possession of Plaintiffs' outside counsel
would be unduly burdensome.

Plaintiffs further object to Defendants' inclusion of Viacom's "agents,"
"representatives," "any other person acting or purporting to act on (Viacom'sJ behalf," or

2

"any other person otherwise subject to its control" in their definition of Viacom because
those terms and/or phrases are overbroad and vague.
4. Plaintiffs object to Defendants' Third Set ofInterrogatories to the extent that they

seek to impose on Plaintiffs obligations or requirements beyond those imposed by the
Federal Rules of Civil Procedure or the Local Rules of the Southern District of New
York.
5. Plaintiffs object to Defendants' Third Set of Interrogatories to the extent that they

seek information or request documents that are known to Defendants, are a matter of

public record, or otherwise publicly available.
6. In objecting to Defendants' Third Set of Interrogatories, Plaintiffs do not in any

way waive or intend to waive but, rather, intend to preserve and are preserving:
a. all objections as to competency, relevancy, materiality, privilege

and admissibility of evidence for any purpose of any information or document, or the subject matter thereof, in the trial of this or any other action or subsequent proceedings;
b. the right to object to the use of any information or document, or the
subject matter thereof, in the trial of

this or any other action or subsequent

proceedings;
c. the right to elicit appropriate evidence, beyond the responses
themselves, regarding the subjects referred to in or in response to any

request;
d. the right to preserve the confidential or proprietary nature of any

information or document, or the subject matter thereof, by mutual

agreement or otherwise, as a condition of production; and
e. the right at any time to correct, supplement, or clarify any of the

objections.

3

7. Plaintiffs' objections to Defendants' Third Set of Interrogatories shall not

constitute an admission of any statement or conclusion implied in any of Defendants'

Interrogatories.

RESPONSES AND OBJECTIONS TO SPECIFIC INTERROGATORIES
Subject to and without waiving any of the foregoing General Objections, which
apply to each Interrogatory as if set forth fully below, Plaintiffs make the following
specific responses and objections:

INTERROGATORY NO. 11:

For each instance in which You contend that Viacom requested access to use

a Y ouTube Copyright Protection Service, but was denied such access, identify the

Viacom entity that requested access, the date of the request, the name(s) of the
specific Y ouTube Copyright Protection Service for which access was requested, and
the production number (Bates number) of each document reflecting or evidencing
the request and deniaL.

Response and Objections to Interrogatory No. 11:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory exceeds the scope permissible under Local Rule 33.3(b) because it is

not "a more practical method of obtaining the information sought than a request for
production or a deposition." Plaintiffs also object that this Interrogatory is overbroad,

oppressive, harassing and unduly burdensome to the extent it seeks highly detailed
information. Further, Plaintiffs object that this Interrogatory is premature and

inconsistent with the Scheduling Order governing this case to the extent that it seeks
information that will be identified at a later stage of the litigation and that is properly

4

subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory because it seeks information

produced in discovery. Such information is already equally and fully accessible to
Defendants - indeed, Defendants should know when they denied Viacom access to
Y ouTube Copyright Protection Services without having to ask Viacom - and it is

unduly burdensome to require Plaintiffs to review documents and information to identify
particular information for Defendants.

Subject to and without waiver of these general and specific objections, Plaintiffs
provide the following examples of instances where Defendants denied Viacom access to
Y ouTube Copyrght Protection Services. Although these examples are not necessarily an

exhaustive list of every instance in which Viacom requested but was denied access to a
Y ouTube Copyright Protection Service, they ilustrate the point.

On February 2, 2007, Viacom General Counsel Michael D. Fricklas sent a letter

to David Drummond and Kent Walker requesting that Defendants take a number of
measures to prevent rampant copyright infringement on the site and specifically stated
that Viacom was "interested in working with (Defendants J" as Defendants began to use

Audible Magic. (VIA01475465-VIA01475476.) On February 16, 2007, Mr. Walker
refused on behalf of Defendants to allow the use of Audible Magic to protect Viacom's
copyrghts (VIA01974134-VIA01974136).

In addition, Dean Garfield testified that Y ouTube generally refused to provide its

copyright protection services to companies without partnership agreements: "(IJt became
clear that Google/Y ouTube was willing to filter for those who had a licensing

relationship with Google/Y ouTube and not for those who did not." (D. Garfield Tr. Nov.
2,2009 at 55:10-13.)

INTERROGATORY NO. 12:

Describe each policy adopted by a Viacom UGC Site addressing termination

of the accounts of users who are "repeat infringers" (as that phrase is used in 17
U.S.C. § 512(i)), identifying in the description the Viacom UGC Site that adopted
the policy, the dates during which the policy was in effect, and the number of users
terminated pursuant to the policy.

Response and Objections to Interrogatory No. 12:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory exceeds the scope permissible under Local Rule 33.3(b) because it is

not "a more practical method of obtaining the information sought than a request for
production or a deposition." Plaintiffs also object that this Interrogatory is overbroad,

oppressive, harassing and unduly burdensome to the extent it seeks highly detailed

information. In addition, Plaintiffs object that this Interrogatory because it seeks
information contained in documents produced in discovery. Such information is already

equally and fully accessible to Defendants, and it is unduly burdensome to require
Plaintiffs to review the documents to identify particular information for Defendants.
Subject to and without waiver of these general and specific objections, Plaintiffs

respond as follows: Plaintiffs have produced numerous Terms of Use documents in

discovery. See Attachment A, Documents Responsive to Interrogatory 12. Those
documents contain information responsive to this Interrogatory.

INTERROGATORY NO. 13:

If You stil contend, as alleged, that "YouTube prevents copyright owners
from finding on the YouTube site all of the infringing works from which YouTube
profits," identify each fact, each document, and each portion of a witness' testimony
that supports this contention.

Response and Objections to Interrogatory No. 13:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or infonnation otherwise protected by the attorney work product

doctrine. Subject to and without waiver of these general and specific objections,
Plaintiffs respond as follows: numerous documents produced by the parties in this action,

numerous facts contained therein, and numerous pieces of testimony elicited during

discovery support the quoted contention, and all of this evidence is already equally and
fully accessible to Defendants. Based on the foregoing objections, no further response is
required.

INTERROGATORY NO. 14:

If You assert a claim of copyright infringement for any Accused Clip, that
you contend does not arise "by reason of the storage at the direction of a user" (as
that phrase is used in 17 V.S.c. § 512(c)), identify separately for each such Accused
Clip each fact, each document, and each portion of a witness' testimony that
supports this contention.

Response and Objections to Interrogatory No. 14:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope pennitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks
information that will be identified at a later stage of the litigation and that is properly

subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and

numerous pieces of testimony elicited during discovery support the quoted contention,
and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 15:

For each Accused Clip, if You contend that, before Y ouTube received a
DMCA Takedown Notice for the Accused Clip, YouTube had "actual knowledge"

(as that phrase is used in 17 V.S.c. § 512(c)(I)) that the Accused Clip infringed
Y our copyright or that Y ouTube was "aware of facts or circumstances from which

infringing activity (was) apparent" as (as that phrase is used in 17 V.S.C.
§ 512(c)(I)), identify separately for each such Accused Clip each fact, each
document, and each portion of a witness' testimony that supports this contention.

Response and Objections to Interrogatory No. 15:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the millions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and
numerous pieces of testimony elicited during discovery support the quoted contention,

and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 16:
For each Accused Clip, if You contend that You

Tube failed to act

"expeditiously to remove, or disable access to," (as that phrase is used in 17 V.S.c.
§ 512(c)(l)) the Accused Clip after receiving actual knowledge or becoming aware of
facts or circumstances from which it was apparent that the Accused Clip infringed a

Work In Suit, or after receiving a DMCA Takedown Notice relating to the Accused

Clip, identify separately for each such Accused Clip each fact, each document, and
each portion of a witness' testimony that supports this contention.
Response and Objections to Interrogatory No. 16:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of

Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the millions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks
information that will be identified at a later stage of the litigation and that is properly

subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and

numerous pieces of testimony elicited during discovery support the quoted contention,
and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.
INTERROGATORY NO.

17:

For each Accused Clip, if You contend that Y ouTube received a "financial
benefit directly attributable to" (as that phrase is used in 17 V.S.C. § 512(c)(I)(B))

the Accused Clip, identify separately for each such Accused Clip the amount of the
financial benefit, and each fact, each document, and each portion of a witness'
testimony that supports this contention.

Response and Objections to Interrogatory No. 17:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and
numerous pieces of testimony elicited during discovery support the quoted contention,

and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 18:

For each Accused Clip, if You contend that Y ouTube had "the right and
abilty to control" (as that phrase is used in 17 V.S.C. § 512(c)(I)(B)) the allegedly

infringing activity with respect to that Accused Clip, identify separately for each
such Accused Clip each fact, each document, and each portion of a witness'
testimony that supports this contention.

Response and Objections to Interrogatory No. 18:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the millions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and
numerous pieces of testimony elicited during discovery support the quoted contention,

and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 19:

For each Accused Clip, if You contend that the Accused Clip was uploaded
to the Y ouTube website by a user who had no authorization, right, or license to do

so, identify separately for each such Accused Clip each fact, each document, and
each portion of a witness' testimony that supports this contention. Response and Objections to Interrogatory No. 19:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly

subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and

numerous pieces of testimony elicited during discovery support the quoted contention,
and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 20:
For each Accused Clip, if You stil contend, as alleged, that Y ouTube
"enable(d), induce(d), faciltate

(d), and materially contribute

(d) to each act of

infringement by Y ouTube users" with respect to the Accused Clip, identify
separately for each such Accused Clip each fact, each document, and each portion of
a witness' testimony that supports this contention.

Response and Objections to Interrogatory No. 20:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks

information that wil be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed infonnation about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and
numerous pieces of testimony elicited during discovery support the quoted contention,

and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 21:

For each Accused Clip, if You stil contend, as alleged, that YouTube's
actions were "wilful, intentional, and purposeful, in disregard of and indifferent to

(Your) rights" with respect to infringing activity associated with the Accused Clip,

identify separately for each such Accused Clip each fact, each document, and each
portion of a witness' testimony that supports this contention.
Response and Objections to Interrogatory No. 21:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the milions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony

supporting Plaintiffs' claims, especially where that information is equally available to

Defendants. Further, Plaintiffs object that this Interrogatory is premature and
inconsistent with the Scheduling Order governing this case to the extent that it seeks
information that will be identified at a later stage of the litigation and that is properly
subject to disclosure only when expert reports are exchanged or when a pretrial order is
entered. In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or

litigation strategy or information otherwise protected by the attorney work product
doctrine. Finally, Plaintiffs object to this Interrogatory as complex and compound and as

exceeding the limit of 25 Interrogatories under the Court's Scheduling Order in that it
seeks separate and detailed information about each of the over 60,000 Accused Clips and

thereby effectively seeks thousands of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and

numerous pieces of testimony elicited during discovery support the quoted contention,
and all of this evidence is already equally and fully accessible to Defendants. Based on
the foregoing objections, no further response is required.

INTERROGATORY NO. 22:

If you stil contend, as alleged, that You have incurred actual damages
directly caused by Y ouTube, identify the specifc total amount of actual damages
that You have incurred, describe in detail the legal theory upon which You would
seek to recover these actual damages and each calculation You used to calculate

these actual damages, and identify each fact, each document, and each portion of a
witness' testimony that supports this contention.

Response and Objections to Interrogatory No. 22:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of Civil Procedure 26 and 33. Further, Plaintiffs object that

the determination, specification, and quantification of actual damages are matters
properly subject to expert analysis and discovery in this case. This Interrogatory is thus

premature and inconsistent with the Scheduling Order governing this case in that it seeks
information that is properly subject to disclosure only when expert reports are exchanged.

In addition, Plaintiffs object that this Interrogatory attempts to elicit trial or litigation
strategy or information otherwise protected by the attorney work product doctrine.

Subject to and without waiver of the foregoing objections, Plaintiffs respond as follows:

Plaintiffs have incurred significant actual damages due to Defendants' unauthorized

infringement, including, without limitation, lost licensing revenues payable by
Defendants and lost advertising, syndication, and other distribution revenues payable by
third parties.

INTERROGATORY NO. 23:

Identify each Work In Suit uploaded in whole or in part to the YouTube

website by Viacom or with Viacom's authorization and the date of each such
authorized upload.

Response and Objections to Interrogatory No. 23:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, and exceeds the scope of permissible
discovery under Local Civil Rule 33.3 and Federal Rules of Civil Procedure 26 and 33.

In particular, Plaintiffs object to Defendants' definition of "Works in Suit" as
encompassing "all works ... as to which (Plaintiffs J have asserted claims of copyrght
infringement, at any time, in this action" and as encompassing portions of works as to
which Plaintiffs have not asserted claims of copyright infringement in this action. This

definition is facially overbroad and purports to cover content that is irrelevant to this
copyright infringement action. Plaintiffs accordingly shall construe "Works in Suit" to

encompass solely those clips listed on the Amended Production of Works in Suit
produced to Defendants on October 15,2009. Subject to that definition and subject to
and without waiver ofthese general and specific objections, Plaintiffs respond as follows:

Plaintiffs uploaded none of the Works in Suit, and Plaintiffs authorized the upload of
none of the Works in Suit.

INTERROGATORY NO. 24:

Identify each Work In Suit that Viacom has provided as a reference fie to
any third party for purposes of creating a digital fingerprint of the work to identify

copies of the work on the Internet, the third parties to whom each reference fie was
provided, and the dates on which it was provided to those third parties.
Response and Objections to Interrogatory No. 24:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, and exceeds the scope of permissible

discovery under Local Civil Rule 33.3 and Federal Rules of Civil Procedure 26 and 33.
In particular, Plaintiffs object that this Interrogatory is overbroad, oppressive, harassing
and unduly burdensome to the extent it seeks highly detailed information. Plaintiffs also

object that this Interrogatory is unduly burdensome insofar as it seeks information from

time periods for which such records are not reasonably available to Plaintiffs. Plaintiffs
further object to this interrogatory insofar as it calls for Plaintiffs to identify works

supplied to Auditude and to Y ouTube as reference files for fingerprinting purposes.

Defendants have already sought and obtained such records from Auditude in this
litigation, and information concerning works Plaintiffs have supplied to Y ouTube is
equally in Defendants' own possession. Plaintiffs further object to Defendants' definition

of "Works in Suit" as encompassing "all works ... as to which (Plaintiffs J have asserted
claims of copyright infringement, at any time, in this action" and as encompassing

portions of works as to which Plaintiffs have not asserted claims of copyrght

infrngement in this action. This definition is facially overbroad and purports to cover
content that is irrelevant to this copyright infringement action. Plaintiffs accordingly

shall construe "Works in Suit" to encompass solely those clips listed on the Amended

Production of Works in Suit produced to Defendants on October 15, 2009. Subject to
that definition and subject to and without waiver of these general and specific objections,
and based upon information available to Plaintiffs, Plaintiffs respond as follows:
Plaintiffs' current records of works Plaintiffs have provided to Audible Magic,

Auditude, BayTSP, and YouTube for purposes of creating a digital fingerprint of the
work to identify copies of the work on the Internet, and the dates on which they were
provided to Audible Magic, Auditude, BayTSP, and Y ouTube, are reflected within the

document attached hereto as Attachment B. The document attached hereto as
Attachment C also lists the same information for additional works provided to Audible
Magic and Auditude as DVDs and not reflected in Attachment B. Plaintiffs object that it
would be unduly burdensome to require Plaintiffs to search these exhibits for the "Works

in Suit," as such infonnation is equally available to Defendants from the documents. The

document attached hereto as Attachment D lists additional Works in Suit that Plaintiff
Paramount supplied, as DVDs, to BayTSP on December 29,2006 and to Audible Magic
on May 8,2007.

In addition to the works listed on the aforementioned exhibits, Plaintiffs have also
directly generated fingerprints of their works and supplied those fingerprints to Vobile,

Y ouTube, BayTSP, and Audible Magic for purposes of identifying copies of those works
on the Internet. Plaintiffs have also provided Auditude and Audible Magic with MRSS
feeds directing them to content available on Plaintiffs' web

sites so that Auditude and

Audible Magic can generate fingerprints thereof. Plaintiffs are not providing information
concerning such in-house fingerprinting, or such MRSS feeds, in response to this

Interrogatory, as the Interrogatory requests identification only of instances in which
Plaintiffs have provided a "Work In Suit. . . as a reference file" and not identification of
instances in which Plaintiffs have used alternative means for providing third-party
vendors with fingerprints of Plaintiffs' works.

INTERROGATORY NO. 25:

If any of Your responses to a request for admission in this action is not an

unqualified admission, identify the request for admission and each fact, each
document, and each portion of a witness' testimony that supports this contention.
Response and Objections to Interrogatory No. 25:
Plaintiffs incorporate the foregoing General Objections, and object further that
this Interrogatory is improper, overly broad, unduly burdensome, unreasonably

cumulative, abusive, and exceeds the scope of permissible discovery under Local Civil
Rule 33.3 and Federal Rules of

Civil Procedure 26 and 33. In particular, an interrogatory

that seeks identification of each fact supporting a contention is improper, abusive and

goes beyond the scope permitted by the Rules. It is oppressive, harassing and unduly

burdensome to ask Plaintiffs to parse the millions of documents and hundreds of
depositions in this case to specify each fact, each document and each piece of testimony
supporting Plaintiffs' responses to Defendants' requests for admission, especially where

that information is equally available to Defendants. Further, Plaintiffs object that this
Interrogatory is premature and inconsistent with the Scheduling Order governing this

case to the extent that it seeks information that wil be identified at a later stage of the

litigation and that is properly subject to disclosure only when expert reports are
exchanged or when a pretrial order is entered. In addition, Plaintiffs object that this
Interrogatory attempts to elicit trial or litigation strategy or information otherwise

protected by the attorney work product doctrine. Finally, Plaintiffs object to this
Interrogatory as complex and compound and as exceeding the limit of 25 Interrogatories

under the Court's Scheduling Order in that it seeks separate and detailed information

about each of Plaintiffs' responses to Defendants' 213 Requests for Admission and
thereby effectively seeks hundreds of separate responses. Subject to and without waiver

of these general and specific objections, Plaintiffs respond as follows: numerous
documents produced by the parties in this action, numerous facts contained therein, and

numerous pieces of testimony elicited during discovery support Plaintiffs' responses to
Defendants' 213 Requests for Admission, and all of this evidence is already equally and
fully accessible to Defendants. Based on the foregoing objections, no further response is
required.

Respectfully submitted,

January 8,2010
-' lA/)

j( "'\1. ZtJ;¿ J /) ! (/"j ¡. (¿J,.".,/:Jt

C

Susan J. Kohlmann (SK-1855)

JENNER & BLOCK LLP
919 Third Avenue 37th Floor New York, NY 10022 Telephone: [phone] Facsimile: [phone]

Wiliam M. Hohengarten (WH-5233) Michael B. DeSanctis (MD-5737) Scott B. Wilkens (pro hac vice)

JENNER & BLOCK LLP
1099 New York Avenue, N.W. Suite 900 Washington, DC 20001 Telephone: [phone] Facsimile: [phone]

Stuart J. Baskin (SB-9936) Stephen Fishbein (SF-34l0) John Gueli (JG-8427) SHEARMAN & STERLING LLP 599 Lexington Avenue New York, New York 10022 Telephone: [phone] Facsimile: [phone]

vii:RU'ICATION J;'ORlLAINTIFFS VIA

COM INTERNATIONAL INC., ET AL.

Information Plaintiffs' Responses to Defendants' Third of Interrogatories

was provided by me andiol: at my direction from corporate records and
personneL. I revievved the responses. I declare under penalty of perjury under the
la\:vs of the United States that the foregoing responses as to Plaintiffs Viacom
International et a1. are true and correct to the best of iny knowledge and belief: based

on my revievi of such information.

Executed on January 8,2010, in Nevv York, New York.

Signature:

Name:

Stanley Pierre-Louis

Vice President & Associate General Counsel

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on this

day of January, 2010, on Defendants' counsel by electronic mail pursuant to an
agreement of

the parties under Fed. R. Civ. P. 5(b)(2)(D).

\-\" /""~\ ,/, _L/' ¡ . f'_~.J //7 i
,I (:~-"__--_-\~___,,___o ",. ,,",_~,.".

James C. Cox

:~ /j

Rubin Exhibit 122

Rubin Exhibit 123

1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK V I A C O M INTERNATIONAL INC., COMEDY P A R T N E R S , COUNTRY MUSIC T E L E V I S I O N , INC., PARAMOUNT P I C T U R E S CORPORATION, and BLACK E N T E R T A I N M E N T TELEVISION LLC, Plaintiffs, vs. YOUTUBE, INC., YOUTUBE, LLC, a n d GOOGLE, INC., ) ) ) ) ) ) ) ) ) ) Defendants. ) ___________________________________) T H E FOOTBALL ASSOCIATION PREMIER ) L E A G U E LIMITED, BOURNE CO., et al.,) o n behalf of themselves and all ) o t h e r s similarly situated, ) ) Plaintiffs, ) vs. ) YOUTUBE, INC., YOUTUBE, LLC, and ) G O O G L E , INC., ) ) Defendants. ) __________________________________) ****HIGHLY CONFIDENTIAL**** DEPOSITION OF THOMAS DONOHUE NEW YORK, NEW YORK FRIDAY, OCTOBER 30, 2009 9:46 a.m. B Y : REBECCA SCHAUMLOFFEL J O B NO. 17991

Case No. 07CV-2103

Case No. 07CV-3582

HIGHLY CONFIDENTIAL - THOMAS DONOHUE

93 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 12:10:24 12:09:57 12:09:46 12:09:34 12:09:20

THOMAS DONOHUE E-mail in the string when he said that the -- that "We, Wiredset, were authorized by MTV to use their videos on YouTube"? A. We were authorized by our And I think in this case,

client, MTV.

either the marketing or promotion department of MTV -- whether or not MTV's marketing department and their legal department or Viacom's legal department were on the same page, I don't know. But I can say that we were

authorized to do what we did. Q. So when you say, "We were

authorized to do what we did," you mean Wiredset was authorized to upload videos to YouTube that Viacom requested that it upload to YouTube? MS. CUNHA: Objection.

Asked and answered. A. We were authorized to

promote, upload the clips, whatever clips we are talking about, by our contacts at MTV.

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

Rubin Exhibit 124

1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK V I A C O M INTERNATIONAL INC., COMEDY P A R T N E R S , COUNTRY MUSIC T E L E V I S I O N , INC., PARAMOUNT P I C T U R E S CORPORATION, and BLACK E N T E R T A I N M E N T TELEVISION LLC, Plaintiffs, vs. YOUTUBE, INC., YOUTUBE, LLC, a n d GOOGLE, INC., ) ) ) ) ) ) ) ) ) ) Defendants. ) ___________________________________) T H E FOOTBALL ASSOCIATION PREMIER ) L E A G U E LIMITED, BOURNE CO., et al.,) o n behalf of themselves and all ) o t h e r s similarly situated, ) ) Plaintiffs, ) vs. ) YOUTUBE, INC., YOUTUBE, LLC, and ) G O O G L E , INC., ) ) Defendants. ) __________________________________) ****HIGHLY CONFIDENTIAL**** DEPOSITION OF THOMAS DONOHUE NEW YORK, NEW YORK FRIDAY, OCTOBER 30, 2009 9:46 a.m. B Y : REBECCA SCHAUMLOFFEL J O B NO. 17991

Case No. 07CV-2103

Case No. 07CV-3582

HIGHLY CONFIDENTIAL - THOMAS DONOHUE

47 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 10:44:17 10:44:10 10:43:57 10:43:22 10:42:56

THOMAS DONOHUE relationship? Q. Ever in the course of the

relationship, anyone you can think of. A. Those were the ones that

were specifically tasked with managing the projects, typically, as far as I can remember. It is possible other

employees may have -- yes. MS. REES: Exhibit 7.

(Whereupon, a document, WS-00317-'00318, was marked as Defendant's Exhibit 7 for identification as of this date by the Reporter.) Q. A. Can you identify Exhibit 7? It appears to be an internal

E-mail from Wiredset. Q. One of the participants is

Katrina Alvarez who you just mentioned? A. Q. Is that a question? Is one of the participants

in this E-mail chain Katrina Alvarez, who you just mentioned? A. Yes, it appears to be.

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

HIGHLY CONFIDENTIAL - THOMAS DONOHUE

48 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 10:46:21 10:46:10 10:45:19 10:44:54 10:44:27

THOMAS DONOHUE Q. Is this -- at the top of the

page, is this Katrina Alvarez's E-mail address, [e-mail]? A. Q. No. Sorry; yes, it is.

Is that her E-mail address,

[e-mail]? A. Yes. MS. REES: Exhibit 8.

(Whereupon, a document, WS-04443-'04447, was marked as Defendant's Exhibit 8 for identification as of this date by the Reporter.) Q. A. Can you identify Exhibit 8? It appears to be an E-mail

from Wiredset to YouTube. Q. And the E-mail appears to

reflect that Wiredset is setting up an account on YouTube with the username, Wiredset. Do you understand that

Wiredset has an account on YouTube with the username, Wiredset? MR. MULLANEY: form. Objection to

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

Rubin Exhibit 125

Rubin Exhibit 126