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

Filing 301

Objection re: 221 Declaration in Support of Motion,, 196 Declaration in Support of Motion, 192 Declaration in Support of Motion, 211 Declaration in Support of Motion,, 197 Declaration in Support of Motion, 199 Declaration in Support of Motion, 200 Declaration in Support of Motion, 198 Declaration in Support of Motion, 194 Declaration in Support of Motion, 226 Declaration in Support of Motion,, 190 Declaration in Support of Motion, 195 Declaration in Support of Motion, 228 Declaration in Support of Motion, 215 Declaration in Support of Motion,, 216 Declaration in Support of Motion,, 213 Declaration in Support of Motion,, 227 Declaration in Support of Motion, 218 Declaration in Support of Motion,, 202 Declaration in Support of Motion, 223 Declaration in Support of Motion,, 220 Declaration in Support of Motion,, 207 Declaration in Support of Motion,, /Viacom's Evidentiary Objections to and Motion to Strike Portions of Declarations Submitted in Support of Defendants' Motion for Summary Judgment. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Kohlmann, Susan)

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TABLE OF CONTENTS INTRODUCTION ...................................................................................................1 I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. Declaration of Andrew H. Schapiro.............................................................1 Declaration of Arthur Chan. ........................................................................2 Declaration of Chad Hurley. ........................................................................3 Declaration of Christopher Maxcy...............................................................3 Declaration of David King...........................................................................4 Declaration of Daniel Ostrow. .....................................................................5 Declaration of Hunter Walk.........................................................................6 Declaration of Michael Rubin......................................................................7 Declaration of Micah Schaffer.....................................................................8 Declaration of Roelof Botha. .....................................................................11 Declaration of Suzanne Reider. .................................................................13 Declaration of Zahavah Levine..................................................................14

CONCLUSION......................................................................................................16

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INTRODUCTION Viacom submits the following evidentiary objections to the declarations submitted by Defendants in support of Defendants' Motion for Summary Judgment. For the reasons stated below, portions of Defendants' declarants' testimony, and the exhibits attached thereto, do not satisfy the evidentiary requirements under the Federal Rules of Evidence and are hence inadmissible and should not be considered by the Court in deciding the parties' cross-motions for summary judgment. See Fed. R. Civ. P. 56(e)(1) (declarations in support of summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."). I. Declaration of Andrew H. Schapiro Grounds for Inadmissibility Personal Knowledge: With respect to the excerpt of deposition testimony relied on by Defendants ­ "having the content there was valuable in terms of helping the rating of our shows" ­ the witness testified that he was "speculating," could not "remember specifically," and was "guess[ing]": "I'd only be speculating today because I can't remember specifically, but I would guess that, that we thought we could do a deal with YouTube and also at the same time thought that having the content there was valuable in terms of helping the ratings for our shows." Schapiro Ex. 4, at at 132133. Accordingly, the testimony is inadmissible due to a lack of personal knowledge. See Fed. R. Evid. 602. Hearsay: Newspaper articles are inadmissible hearsay to prove the truth of their contents. See Century Pacific, Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 217 (S.D.N.Y. 2007); Fed. R. Evid. 802.

Inadmissible Testimony Schapiro Ex. 4

Schapiro Exs. 53, 61, 77, 160, 161, 164, 174

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II.

Declaration of Arthur Chan Grounds for Inadmissibility Failure to demonstrate conditional relevance: Defendants cannot justify admission of this evidence on the basis that it demonstrates their inability to determine whether a video clip is infringing. Such a theory would require a showing that Defendants were unaware that the uploading of these trailers and marketing clips were authorized. See Fed. R. Evid. 104(b) (where "relevancy of evidence depends upon fulfillment of a condition of fact," it is admissible only upon "evidence sufficient to support a finding of the fulfillment of the condition"). Defendants have made no such showing and absent such a showing the evidence is irrelevant. See Fed. R. Evid. 402. Personal Knowledge: What the declarant "understand[s]" about the reasons for the removal of videos from YouTube does not supply a foundation that the declarant has personal knowledge (not based on hearsay) of the topic. See Fed. R. Evid. 602. Hearsay: YouTube's own statement that the clips are "no longer available due to a copyright claim by Viacom International" is hearsay inadmissible to prove the truth of the matter asserted (i.e. that the clips are unavailable for the reason stated). See Fed. R. Evid. 802. Personal knowledge: The declarant's characterization of viral marketing on YouTube as "widespread" and practiced by "most other online marketing companies" lacks foundation. There is no showing that the witness has personal knowledge of any other company's actions on YouTube. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). Inadmissible Lay Opinion: The same characterizations are also impermissible lay opinion. The declarant supplies no foundational facts necessary to demonstrate the prevalence of such practices and therefore fails to satisfy the requirement of Rule 701(a) that lay opinion be "rationally based on [his] perception." See Fed.

Inadmissible Testimony Chan Declaration ¶¶ 4, 5, 6, 7

Chan Declaration ¶ 4

Chan Declaration ¶ 6

Chan Declaration ¶ 9

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R. Evid. 701; see also Leopold v. Baccarat, Inc., 174 F.3d 261, 270-71 (2d Cir. 1999) (affirming exclusion, for lack of personal knowledge and as impermissible lay opinion, of testimony that defendant "routinely" engaged in particular practice in absence of "statistical analysis" or "contextual facts" necessary to support witness's characterization of practice as "routine."). III. Declaration of Chad Hurley Inadmissible Testimony Hurley Declaration ¶ 18 Grounds for Inadmissibility Improper Lay Opinion: Mr. Hurley's opinion that "this screening process was not scalable and was ineffective in identifying unauthorized material" is improper lay opinion testimony, as there is no showing that the opinion is "rationally based on the perception of the witness." See Fed. R. Evid. 701(a). The witness fails to provide foundational facts that would be necessary to evaluate the rationality of his inference, such as the frequency with which YouTube successfully determined the authorized or unauthorized status of videos. Absent such a foundation, the witness cannot satisfy the rationality requirement of Rule 701(a), and his inference is mere speculative argument.

IV.

Declaration of Christopher Maxcy Grounds for Inadmissibility Hearsay: What other companies allegedly told YouTube about their purported uploading and promotional activities is inadmissible hearsay and may not be used to prove the truth of the matters asserted (i.e. that other companies "were . . . uploading content to YouTube" and that there were "tremendous promotional benefits" to doing so). See Fed. R. Evid. 802. Lack of personal knowledge: There is no showing that Mr. Maxcy has personal knowledge that Universal Music Group uploaded the video in question or its motivations for doing so. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e).

Inadmissible Testimony Maxcy Declaration ¶¶ 3, 4, 5, 7

Maxcy Declaration ¶ 5

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V.

Declaration of David King Grounds for Inadmissibility Personal Knowledge: There is no showing that the declarant has personal knowledge to testify to the facts asserted, e.g., the reason Audible Magic's technology was developed, the works in its database, and other websites' use of video fingerprinting technology. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e); Cooper v. Niagara Community Action Program, No. 08-CV-4685, 2010 WL 1407238, at *10 (W.D.N.Y. Mar. 31, 2010) (stating that "[u]nsupported declarations made upon `information and belief'" are not admissible evidence"). Hearsay: What Mr. King's co-workers and third parties told him, e.g., regarding Audible Magic's database and Defendants' managers' purported support for his project, is hearsay inadmissible to prove the truth of the matters asserted. See Fed. R. Evid. 802. Improper Lay Opinion: The declarant's opinions and predictions about the effectiveness and availability of Audible Magic and other audio and video fingerprinting technologies involve highly "technical, or other specialized knowledge" and therefore fall outside the scope of permissible lay opinion testimony under Rule 701. See Fed. R. Evid. 701(c), 702. Defendants stipulated that they would not submit any expert testimony in support of their opening summary judgment brief. Mr. King's statements are inadmissible on that basis alone. Even if Defendants had not so stipulated, they have not qualified Mr. King as an expert on these topics or disclosed the basis for his opinions in accordance with Rule 703, and his statements are therefore inadmissible. See, e.g. In re 1115 Third Ave. Rest. Corp. d/b/a David K's, No. 03 Civ. 0586 (LMM), 2004 WL 1542261, at *2 (S.D.N.Y. July 8, 2004) ("Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing"). Personal Knowledge: The declarant admitted at

Inadmissible Testimony King Declaration ¶¶ 6, 19

King Declaration ¶¶ 6, 14

King Declaration ¶¶ 11, 12, 13, 16

King Declaration ¶ 16

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his deposition (as the 30(b)(6) deponent for Defendants) that Defendants did not test any third-party content identification technologies. See Kohlmann Ex. 76 (King 30(b)(6) Tr.) at 149:4-154:21; Kohlmann Ex. 4 (King 30(b)(6) Ex. 10) (document stating that YouTube was not testing or considering third-party technology). Therefore the declarant's beliefs about third-party technologies may not be admitted for the purpose of showing that those beliefs were correct, as the witness lacks personal knowledge thereof. See Fed. R. Civ. P. 56(e); Fed. R. Evid. 602; Fed. R. Evid. 105 (evidence admitted for one purpose may be excluded for impermissible purpose). VI. Declaration of Daniel Ostrow Grounds for Inadmissibility Failure to demonstrate conditional relevance: Defendants cannot justify admission of this evidence on the basis that it demonstrates their inability to identify the authorized or unauthorized status of uploaded works. Such a theory would require a showing that Defendants were unaware of the declarant's purportedly authorized uploading activities. See Fed. R. Evid. 104(b) (where "relevancy of evidence depends upon fulfillment of a condition of fact," it is admissible only upon "evidence sufficient to support a finding of the fulfillment of the condition"). Defendants have made no such showing and absent such a showing the evidence is irrelevant. See Fed. R. Evid. 402. Personal knowledge: The declarant's characterization of viral marketing on YouTube as "widespread" and practiced by "most other online marketing companies" lacks foundation. There is no showing that the witness has personal knowledge of any other company's actions on YouTube. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). Inadmissible Lay Opinion: The same characterizations are also impermissible lay opinion. The declarant supplies no foundational facts necessary to demonstrate the prevalence of

Inadmissible Testimony Ostrow Declaration ¶¶ 3, 4, 5

Ostrow Declaration ¶ 6

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such practices and therefore fails to satisfy the requirement of Rule 701(a) that lay opinion be "rationally based on [his] perception." See Fed. R. Evid. 701; see Objections to Chan ¶ 9, supra. VII. Declaration of Hunter Walk Grounds for Inadmissibility Generalized and conclusory statements. The testimony in these paragraphs, including but not limited to testimony that videos were uploaded by "YouTube's millions of users," are "staggeringly diverse," "in every language imaginable, covering virtually every facet of the human experience," that "any attempt to capture the full scope of the kinds of videos available on YouTube in words necessarily fails[; i]t is much like trying to describe the human experience," and that "YouTube's users have used YouTube to create a new model for how individuals, companies, organizations and even governments communicate," is inadmissible because it consists of generalized and conclusory statements. See Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999); see also Wahad v. FBI, 179 F.R.D. 429, 435 (S.D.N.Y. 1998). Improper Lay Opinion/Improper Expert Opinion: The statements to which Mr. Walk testifies, e.g., regarding YouTube's social impact and significance, fall outside the scope of permissible lay opinion testimony and requires specialized knowledge. Defendants stipulated that they would not submit any expert testimony in support of their opening summary judgment brief. Mr. Walk's statements are inadmissible on that basis alone. Even if Defendants had not so stipulated, they have not qualified Mr. Walk as an expert on these topics or disclosed the basis for his opinions in accordance with Rule 703, and his statements are therefore inadmissible. See Fed. R. Evid. 701(c), 702.

Inadmissible Testimony Walk Declaration ¶¶ 3, 4, 5, 9, 22

Walk Declaration ¶¶ 12, 22

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VIII. Declaration of Michael Rubin Inadmissible Testimony Rubin Declaration ¶¶ 2, 4, Exs. 2, 32-41, 69-83 Grounds for Inadmissibility Hearsay: Unsworn, out-of-court statements by third parties regarding their supposed "marketing and promotional uses of YouTube" and supposedly inaccurate takedowns sent to YouTube are hearsay inadmissible to prove the truth of the matters contained therein. See Fed. R. Evid. 802. Moreover, although some of those third parties have at times acted as agents of Plaintiffs, the statements by those third parties involve their work on behalf of third parties outside the scope of their agency relationship with Plaintiffs. See Fed. R. Evid. 801(d)(2)(D) (statements by agents are hearsay unless "concerning a matter within the scope of the agency"); see also Fed. R. Evid. 105 (evidence may be inadmissible for specific purposes). Relevance: The purported similarity between some video clips in suit and some promotional videos used by Plaintiffs is not probative of any material issue before the Court. The fact that Plaintiffs may have licensed some of their works to third parties for promotional purposes, or used them to promote Plaintiffs' works on Plaintiffs' own distribution channels, does not tend to prove that Plaintiffs licensed those works to Defendants. Therefore the evidence is irrelevant. See Fed. R. Evid. 401; 402. Improper Summary: The declarant has not made a showing necessary to permit evidence to be introduced indirectly by means of summary rather directly. First, there is no showing that the evidence cited is sufficiently "voluminous" to make examination of the evidence itself so "[in]convenient[]" that a summary is required in lieu of the evidence itself. See Fed. R. Evid. 1006; 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1006.03 (Joseph M. McLaughlin ed., 2d ed. 2010). Second, the declaration fails to identify with specificity the evidence relied upon. See id. (documents introduced by summary rather than directly "shall be made available for examination or copying");

Rubin Declaration ¶ 17

Rubin Declaration ¶ 18

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Weinstein's Federal Evidence § 1006.06 (documents relied upon "must be made available . . . for summary evidence to be admissible."). Third, the declarant's failure to identify the sources with specificity fails to carry his burden of establishing the accuracy of the summary and the conclusions he has drawn from the summarized evidence. See Weinstein's Federal Evidence § 1006.07 ("To be admissible, summary evidence should accurately reflect the underlying documents. The proponent of summary evidence has the burden of proving accuracy, and a failure to carry that burden may result in exclusion of the evidence.") (footnote omitted). Improper Lay Opinion: The declarant's inference that the summarized evidence reference[s] "thousands" of authorized clips is inadmissible lay opinion, as it goes beyond summarizing the evidence itself to arguing Defendants' counsel's inference as to what the evidence tends to prove. However, because the declaration fails to identify with specificity the evidence upon which it relies, it fails to satisfy the reasonableness requirement of Rule 701(a) or the helpfulness requirement of Rule 701(b). IX. Declaration of Micah Schaffer Grounds for Inadmissibility

Inadmissible Testimony

Schaffer Declaration ¶¶ 2, 3, 17, 19; Exs. 5, 6, 7 Hearsay: What Mr. Schaffer allegedly learned or was told by third parties, such as press accounts, conversations with a member of "The Lonely Island," and accusations by nonparty record labels regarding other companies' uploading practices, the authorization status of the "Lazy Sunday" video, the views of the Saturday Night Live writers, and allegations of wrongful takedowns by Plaintiffs are each inadmissible to prove the truth of the matters asserted. See Fed. R. Evid. 802. Schaffer Declaration ¶ 2 Failure to demonstrate conditional relevance: Defendants cannot justify admission of this evidence on the basis that it demonstrates their inability to identify the authorized or unauthorized status of uploaded works. Such a theory would

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require a showing that Defendants were unaware that Nike's promotional uploads were authorized. See Fed. R. Evid. 104(b) (where "relevancy of evidence depends upon fulfillment of a condition of fact," it is admissible only upon "evidence sufficient to support a finding of the fulfillment of the condition"). No such showing has been made and the evidence is therefore irrelevant. See Fed. R. Evid. 402. Schaffer Declaration ¶ 3 Personal Knowledge; Generalized and Conclusory Statement: Mr. Schaffer has no basis upon which to testify to circumstances of which "YouTube" was aware. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). The first sentence of this paragraph is also inadmissable as a generalized and conclusory statement, as Mr. Schaffer describes only one example of the relevant circumstances. See Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Personal Knowledge: There is no showing that Mr. Schaffer has personal knowledge of the actions of the music groups and television programmers listed in this paragraph. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). Generalized and Conclusory Statement: The first sentence of this paragraph is inadmissable as a generalized and conclusory statement. See Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Schaffer Declaration ¶ 6 Improper Lay Opinion: Mr. Schaffer's inferences about third parties' uploading to YouTube, or their supposed acquiescence in their content's presence there, is improper lay opinion testimony. The witness provides no foundational facts to support his opinions except the fact that some content owners forbear from removing all of their content from YouTube. His guessing as to the frequency of promotional uses by third parties, third parties' awareness of the presence of their content on YouTube, and third parties' motivations for forbearing to enforce their copyrights against YouTube are not rationally based on his observation, or helpful to the understanding of the facts, but are mere speculation. See Fed. R. Evid.

Schaffer Declaration ¶ 5

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701. Generalized and Conclusory Statement: The declarant's inferences about the frequency of promotional uses of YouTube and "many cases" where he believed such use might be taking place are inadmissible as generalized and conclusory statements, as he does not point to any specific content that he reviewed or describe the extent of content reviewed. See Hollander, 172 F.3d at 198; see also Wahad 179 F.R.D. at 435. Schaffer Declaration ¶¶ 9, 12, 13, 15 Improper Lay Opinions; Generalized and Conclusory Statements: Mr. Schaffer's opinions (1) that YouTube employees could not make reliable determinations about the authorization status of clips, (2) that proactive removal of unauthorized clips was "ineffective" and "did not scale," (3) that rights holders were in a "much better position" to make determinations about the authorization status of YouTube videos, and (4) that YouTube could not determine which videos were authorized because of promotional uses of YouTube, are each improper lay opinion testimony. The witness fails to provide foundational facts that would be necessary to evaluate the rationality of his inferences, such as (1) the frequency with which YouTube successfully determined the authorization status of videos, or (2) successfully removed unauthorized videos through proactive review without complaint or incident, or (3) successfully identified such videos prior to the content owner becoming aware of them. Absent such facts, the witness cannot demonstrate that his inferences satisfy the rationality requirement of Rule 701(a), and his opinions are mere speculative arguments as well generalized and conclusory statements. See Fed. R. Evid. 701; Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Personal Knowledge / Legal Conclusion. There is no showing that Mr. Schaffer has a foundation to support his claim that Viacom's takedowns were "erroneous" or that Viacom "misidentified as infringing" videos it removed. See Fed. R. Evid. 601, Fed. R. Civ. P. 56(e). See also Viacom's Objection to Schaffer Decl. ¶ 17, supra. Best Evidence. Mr. Schaffer's testimony is not 10

Schaffer Declaration ¶ 18

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admissible to prove the contents of the referenced DMCA notices and counternotices. See Fed R. Evid. 1002. Schaffer Declaration ¶ 19 Improper Lay Opinion; Generalized and Conclusory Statement: Mr. Schaffer's opinion that that Viacom "made many other mistakes" is improper inference by a lay witness. See Fed. R. Evid. 701. The witness's foundation for his opinion is admittedly based in substantial part on inadmissible hearsay allegations by third parties not before the Court, and therefore does not satisfy the rationality requirement of Rule 701(a). See Schaffer Decl. ¶¶ 17-19. In addition, admissible evidence of Plaintiffs' takedown efforts speaks for itself and the declarant's speculation about evidence not in the record is not "helpful" to the finder of fact. See Fed. R. Evid. 702(b). His speculative assertions are further inadmissible as generalized and conclusory statements, as Mr. Schaffer provides no information about or examples of the alleged erroneous takedowns. See Fed. R. Evid. 701; Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435.

X.

Declaration of Roelof Botha Grounds for Inadmissibility Hearsay: YouTube's own claims, what its founders allegedly told Mr. Botha, and what third-parties allegedly told Mr. Botha regarding the founders' intent with regards to the website and the content on the website is inadmissible hearsay insofar as they are offered for the truth of the matters asserted. See Fed. R. Evid. 802. Personal Knowledge: There is no showing that the declarant has personal knowledge as to the facts about which he offers testimony, e.g, the extent and scope of third-party viral marketing use of YouTube. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). Improper Lay Opinion: Mr. Botha's opinions regarding the scope of authorized viral marketing videos on YouTube, the possibility of recognizing such authorized content, and the possibility of recognizing unauthorized content are 11

Inadmissible Testimony Botha Declaration ¶¶ 3. 5, 6, 7 8; Exs. 1, 2, 3

Botha Declaration ¶¶ 11, 12. 13, 15

Botha Declaration ¶¶ 11, 12, 14, 16

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inadmissible lay opinion. The declarant fails to supply foundational facts to support his opinions and therefore fails to satisfy the requirements of Rule 701(a) that the opinions he offers be "rationally based on the perception of the witness." See Fed. R. Evid. 701; Leopold, 174 F.3d at 270-71. Botha Declaration ¶¶ 12, 14 Generalized and conclusory statements: The testimony that major media companies "often chose simply to leave on the service clips of their content," and that YouTube "had no practical ability to make determinations" regarding the authorization status of videos on the service and "actively cooperated with copyright holders," are inadmissible as generalized and conclusory statements. See Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Evidence shielded by attorney-client privilege: Defendants informed the Court on June 9, 2009 that they are not asserting an advice of counsel defense in this case. On that basis, Defendants have blocked all discovery into privileged communications at YouTube and Google regarding YouTube's compliance with the copyright laws. Mr. Botha's testimony about what the company thought about "whether . . . approval was required" from the copyright owner of the "Lazy Sunday" clip and about what the company "recognized" about copyright compliance, and what the company "discussed" regarding copyright compliance, and its reasons for implementing the policies listed is therefore inadmissible. See United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) ("the attorneyclient privilege cannot at once be used as a shield and a sword. . . . [a] defendant may not use the privilege . . . to disclose some selected communications for self-serving purposes") (internal citations omitted); Cary Oil Co. v. MG Refining & Marketing, Inc., 257 F. Supp. 2d 751, 761 (S.D.N.Y. 2003) (excluding evidence regarding defendant's "motivations" for taking certain action "if that same testimony or evidence was withheld from Plaintiffs during discovery based on attorney-client privilege.").

Botha Declaration ¶¶ 13, 14

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Botha Declaration ¶ 14

Substantially More Prejudicial Than Probative: The declarant's use of the term "fingerprinting" to reference YouTube's system to "block any user from uploading to the service a file that had previously been removed from the service based on allegations of copyright infringement" is substantially more prejudicial than probative because it tends to create "confusion of the issues." See Fed. R. Evid. 403. "Fingerprinting" and "hashing" are distinct technologies. See Viacom's SUF ¶¶ 274-276. Defendants used hashing, but not fingerprinting, in the manner the declarant describes. See id. His use of the term "fingerprinting," therefore, creates prejudicial "confusion of the issues" by conflating two distinct technologies defendants used for distinct purposes. Fed. R. Evid. 403.

XI.

Declaration of Suzanne Reider Grounds for Inadmissibility Personal Knowledge; Legal Conclusion: The second sentence of paragraph 10, and all of paragraph 11 are inadmissible, as Ms. Reider has no basis upon which to testify about the beliefs or intent of YouTube as a while, or other YouTube employees. See Fed. R. Evid. 602; Fed. R. Civ. P. 56(e). Furthermore, insofar as Defendants rely upon these statements to prove that YouTube lacked knowledge of infringement of copyright, or did not earn a financial benefit from infringement, the testimony purports to state legal conclusions on ultimate issues as to which a witness may not properly testify. See AUSA Life Ins. Co. v. Dwyer, 899 F. Supp. 1200, 1202 n.2 (S.D.N.Y. 1995). The statements in paragraph 11 are also inadmissible as generalized and conclusory statements. Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Improper Lay Opinion: Ms. Reider's description of advertising offered by other video websites is lay opinion that fails to satisfy the requirements of Fed. R. Evid. 701.

Inadmissible Testimony Reider Declaration ¶¶ 10, 11.

Reider Declaration ¶ 12

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Generalized and Conclusory Statement: The final sentence of this paragraph is also inadmissible as a generalized and conclusory statement. See Objections to Reider Decl. ¶ 11, supra. XII. Declaration of Zahavah Levine Grounds for Inadmissibility Hearsay: What the founders allegedly told Ms. Levine regarding their intent, what third parties said about YouTube's copyright practices, and what third parties asserted about mistaken takedowns by Plaintiffs are each hearsay inadmissible to prove the truth of the matters asserted. See Fed. R. Evid. 802. Evidence shielded by attorney-client privilege: Defendants informed the Court on June 9, 2009 that they are not asserting an advice of counsel defense in this case. On that basis, Defendants have blocked all discovery into privileged communications between Ms. Levine and YouTube and Google regarding compliance with the copyright laws. Ms. Levine's testimony regarding the directions and information she received from management concerning copyright issues is inadmissible, and her company's compliance with the DMCA are inadmissible on this basis. See Bilzerian, 926 F.2d at 1292; Cary Oil Co., 257 F. Supp. 2d at 760-61. Legal conclusion: The declarant's claim that Defendants were "complying with the requirements . . . of the . . . DMCA" states a legal conclusions on ultimate issues as to which a witness may not properly testify. See AUSA Life Ins. Co., 899 F. Supp. at 1202 n.2. Lack of personal knowledge: Ms. Levine's mere "belief" is insufficient foundation to admit testimony that "YouTube was the first online video service to offer such functionalities to content owners." See Fed. R. Evid. 602; Cooper, 2010 WL 1407238, at *10 (stating that "[u]nsupported declarations made upon `information and belief' are not admissible evidence").

Inadmissible Testimony Levine Declaration ¶¶ 3, 22, 29, 32, 33; Exs. 13, 14, 15, 16, 17

Levine Declaration ¶¶ 3, 13

Levine Declaration ¶ 13

Levine Declaration ¶ 18

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Levine Declaration ¶ 25

Substantially More Prejudicial Than Probative: The declarant's use of the terms "fingerprinting" and "specific video" to reference YouTube's "MD-5 filtering technology" are substantially more prejudicial than probative because they tend to create "confusion of the issues." See Fed. R. Evid. 403. "Fingerprinting" and "hashing" are distinct technologies. See Viacom's SUF ¶¶ 274276. Defendants used hashing, but not fingerprinting, to prevent taken-down files from being re-uploaded. See id. Moreover, MD-5 hash technology identifies only identical copies of computer files, not "specific video[s]." See generally Viacom's SUF ¶¶ 217, 274-276, 281285. The declarant's use of the terms "fingerprinting" and "specific videos," therefore, create prejudicial "confusion of the issues" by conflating two distinct technologies defendants used for distinct purposes, which outweighs substantially the probative value of her terminology. See Fed. R. Evid. 403. Generalized and conclusory statements: The statements that "[j]ust as we could not and do not manually pre-screen or review each of the videos uploaded, we cannot feasibly undertake thorough investigations as to the legitimacy of every DMCA notice we receive . . . I know that improper and invalid notices are a regular occurrence" and "[a]fter receiving notice and an explanation that a strike has been assessed, users routinely inform us that they have modified their behavior" are each inadmissible as generalized and conclusory statements. See Hollander, 172 F.3d at 198; see also Wahad, 179 F.R.D. at 435. Improper Lay Opinion/Improper Expert Opinion: The declarant's opinions as to the impossibility of YouTube's pre-screening videos or investigating the accuracy of DMCA notices require specialized knowledge and may not properly be the subject of lay opinion testimony. Defendants stipulated that they would not submit any expert testimony in support of their opening summary judgment brief. Ms. Levine's statements are inadmissible on that basis alone. Even if Defendants had not so stipulated, they have not 15

Levine Declaration ¶¶ 26, 28

Levine Declaration ¶ 26