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

Filing 308

DECLARATION of Andrew H. Schapiro, Group 8, Exhibit 238 -259 in Opposition 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 Youtube, Inc., Youtube, LLC, Google, Inc.. (Attachments: # 1 Exhibit 260 - 272, # 2 Exhibit 273 - 285, # 3 Exhibit 286 - 288, # 4 Exhibit 289 - 296, # 5 Exhibit 297 - 310, # 6 Exhibit 311, Part 1, # 7 Exhibit 311, Part 2, # 8 Exhibit 312 - 314)(Schapiro, Andrew)

Schapiro Exhibit 286

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES COPRORATION, and BLACK ENTERTAINMENT TELEVISION LLC,
) )

)
) ) Case No. l:07-CV-2l03-LLS
) (Related Case NO.1 :07-cv-03582 (LLS))

)
) )

Plaintiffs, )
)

v.

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

) ) ) )

)

Defendants. )
)

PLAINTIFFS' CONFIDENTIAL SUPPLEMENTAL AND AMENDED OBJECTIONS AND RESPONSES TO CERTAIN OF YOUTUBE'S 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
supplement and amend their Objections and Responses to the following interrogatories

from YouTube's First Set of Interrogatories to Viacom International, Inc. (YouTube's

First Set of Interrogatories), Y ouTube' s Second Set of Interrogatories to Viacom
International, Inc. (YouTube's Second Set of Interrogatories), and YouTube's Third Set
ofInterrogatories to Viacom International, Inc. (Y ouTube' s Third Set ofInterrogatories),
as follows:

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GENERAL OBJECTIONS

Plaintiffs incorporate by reference the General Objections set forth in their
October 1, 2007 Objections and Responses to YouTube's First Set of Interrogatories to

Viacom International, Inc.; their September 8, 2008 Objections and Responses to
YouTube's Second Set of Interrogatories; and their January 8, 2010 Objections and
Responses to YouTube's Third Set ofInterrogatories.

SUPPLEMENTAL AND AMENDED RESPONSES AND OBJECTIONS TO SPECIFIC INTERROGATORIES
Subject to and without waiving any of the foregoing General Objections and the

specific objections to each Interrogatory set forth in their January 8, 2010 Amended
Objections and Responses to Y ouTube' s First Set of Interrogatories, their January 8,
2010 Amended Objections and Responses to YouTube's Second Set of

Interrogatories, or

their January 8, 2010 Objections and Responses to YouTube's Third Set of
Interrogatories, Plaintiffs provide the following specific supplemental or amended
responses and objections:

INTERROGATORY NO.2:

For each work in suit, describe in detail the basis for Your claim of copyright

ownership, including an identification of all evidence on which you base your claim
of ownership.

Supplemental Response and Objections to Interrogatory No.2:
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

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Rule 33.3 and Federal Rules of

Civil Procedure 26 and 33. It is oppressive, harassing and

unduly burdensome to ask Plaintiffs to identify and describe in detail the basis for
ownership claims for each work in suit, especially where that information has been
produced in discovery and therefore is equally available to Defendants. Plaintiffs further
object that Interrogatory 2 is duplicative of

Defendants' document requests, including but

not limited to Document Requests 1, 3, and 125. Seeking additional information by
interrogatory is redundant, unduly burdensome, and inconsistent with the Scheduling

Order and the Local Rule.

Subject to and without waiver of these general and specific objections, Plaintiffs
supplement their prior response as follows: Attachment A - Supplemental, attached

hereto, identifies by Bates Number additional documents that Viacom has produced in
discovery that provide information responsive to this Interrogatory.

INTERROGATORY NO.5:

For each work in suit, describe in detail the circumstances under which You

first became aware of the alleged infringement of those works on or through the
YouTube service. Your answer should include, but not be limited to, providing the
date and manner in which the alleged infringement came to your attention.

Supplemental Response and Objections to Interrogatory No.5:
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. Plaintiffs further object that

Interrogatory 5 is duplicative of Defendants' document requests, including Document

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Request No. 25. Seeking additional information by interrogatory is redundant, unduly

burdensome, and inconsistent with the Scheduling Order and the Local Rule.

Subject to and without waiver of these general and specific objections, Plaintiffs

supplement their prior response as follows: Plaintiffs' January 10, 2010 Amended
Objections and Responses to YouTube's First Set of Interrogatories included a chart
listing the date that BayTSP recorded detection of the earliest infringing clip for each

Work in Suit. Attachment B - Supplemental, attached hereto, amends the dates
previously listed for two Works in Suit.

INTERROGATORY NO.8:

For each Accused Video Clip, state whether the same content is available for

viewing on a website operated by You or pursuant to a license agreement with You,

and if so, identify the website and state when the clip first became available on that
site.

Supplemental Response and Objections to Interrogatory No.8:
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. Plaintiffs also object that this

Interrogatory is overbroad, oppressive, harassing and unduly burdensome to the extent it

seeks highly detailed infonnation. In addition, Plaintiffs object to the extent this
Interrogatory 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

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information for Defendants. Plaintiffs object further that this Interrogatory is vague.

Plaintiffs further object that Interrogatory 8 is duplicative of Defendants' document
requests. Seeking additional information by interrogatory is redundant, unduly

burdensome, and inconsisten't with the Scheduling Order and the Local Rule.

Subject to and without waiver of these general and specific objections, Plaintiffs
supplement their prior response as follows:
Availability of Via

com Content on Viacom Websites

As a general matter under present practices, Paramount Pictures does not make
full motion pictures available for free viewing on line on Viacom websites. Trailers from
Paramount Pictures films generally are made available shortly before the film's theatrical
release. At least some of

those trailers typically remain on line until after the film's DVD

release.

As a general matter under present practices, Black Entertainment Television

makes clips from some shows available on line after their broadcast premieres. The
content remains available for approximately one year. Among the Works In Suit, Black

Entertainment Television made clips from the following shows available at
www.bet.com:

College Hil, Episode 406 College Hil, Episode 408 BET Awards, 2006 BET Awards, 2007 BET Hip Hop Awards, 2006 Celebration of Gospel, 2007 Top 25: Hottest Couples
Top 25: Money, Power, Respect

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Availability of

Via

com Content on Third Party Websites

Attached hereto as Attachment C - Supplemental is a spreadsheet listing
Paramount Pictures content made available for viewing on third party websites, as well as
the date when each piece of content was first made available on those sites.

Attached hereto as Attachment D - Supplemental is a spreadsheet listing Black
Entertainment Television content made available for viewing on third party websites, as
well as the date when each piece of content was first made available on those sites.

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.

Supplemental 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) 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 copyright infringement in this action. This

definition is facially overbroad and purports to cover content that is irrelevant to this
copyright infrngement action. Plaintiffs further object that Interrogatory 23 is unduly
burdensome, as the relevant information has been produced in discovery and is therefore
equally available to Defendants.

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CONFIDENTIAL

Subject to and without waiver of these general and specific objections, Plaintiffs

supplement their prior response as follows: Attached hereto as Attachment E Supplemental is a chart identifying by Bates number documents produced by Viacom in
discovery that contain information responsive to this Interrogatory. This interrogatory

response does not include documents and other data produced by Defendants and by third
parties subpoenaed by Defendants.

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.
Amended 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, and seeks information in the
possession of third parties, insofar as it seeks information from time periods for which

such records are not reasonably available to Plaintiffs, and for which Plaintiffs must
obtain records from third parties. Plaintiffs further object to this Interrogatory insofar as
it calls for Plaintiffs to identify works supplied to Auditude and to Y ouTube as reference

fies for fingerprinting purposes. Defendants have already sought and obtained such

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CONFIDENTIAL

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) 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 copyright infringement in this action. This definition is facially overbroad and
purports to cover content that is irrelevant to this copyright infrngement 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, as modified by Plaintiffs' February 26,2010 Notice of DismissaL. 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:

Attached hereto as Attachment F - Supplemental is a chart listing - to the best of

Plaintiffs' ability given available records - each Work in Suit and the date on which
Plaintiffs provided Audible Magic, Auditude, and Y ouTube with either the work, or

access to the work, for purposes of creating a digital fingerprint of the work to identify
copies of the work on the Internet. In addition, for works in suit belonging to Plaintiff
Paramount, Attachment F - Supplemental

lists the date on which Paramount provided the

work, or access to the work, to BayTSP for purposes of creating a digital fingerprint of
the work to identify copies of the work on the Internet. Plaintiffs other than Paramount
have not engaged BayTSP for such purpose, and Attachment F - Supplemental therefore
omits as irrelevant any BayTSP fingerprinting of

non-Paramount works.

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In addition, Defendants' February 3, 2010 Letter concerning Defendants' 30(b)(6)

Deposition Notice to Viacom sought information regarding the works, other than the

Works in Suit, that were provided to Audible Magic and Vobile in 2007 (see Brian
Willen's February 3, 2010 Letter to Luke Platzer, at ir 4). Plaintiffs provided works to

Vobile in 2007 solely for testing purposes, and not for purposes of identifying those
works on the Internet. With regard to Audible Magic, attached hereto as Attachment G -

Supplemental is a chart listing all works Plaintiffs provided or made available to Audible

Magic in 2007 for purposes of creating a digital fingerprint. In addition, Paramount
supplied works to Audible Magic in 2007 for purposes of creating digital fingerprints; a
list of those works is attached hereto as Attachment H - Supplemental.

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Respectfully submitted,
April

16, 2010

Susan J. Kohlmaim (SK-1855)

.zj':/Y;L/C_ 0_ ~r7 t~)~~2Qc"._. "./IJ(c/( ¡

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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-3410) John Gueli (JG-8427) SHEARMAN & STERLING LLP 599 Lexington Avenue New York, New York 10022 Telephone: [phone] Facsimile: [phone]

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VERIFICATION FOR PLAINTIFFS VIACOM INTERNATIONAL INC., ET AL.
Information in Plaintiffs' Supplemental and Amended Objections and Responses

to Certain of YouTube's Interrogatories was provided by me and/or gathered at my
direction from corporate records and personneL. I have reviewed the responses. I declare

under penalty of perjury under the laws of the United States that the foregoing responses

as to Plaintiffs Viacom International Inc. et aL. are true and correct to the best of my
knowledge and belief, based on my review of such information.

Executed on April ~ 2010, in Me w tPrlL i )) '(

Signature:

31

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Name (print): "5~II\e

Title: \I?,¡ AsSecìaJe ~~ (¿w"&(
9 ~cl L;Jvi~-l ro'fe¿.'(z,v¡

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

day of April 2010, on Defendants' counsel by electronic mail pursuant to an agreement of
the parties under Fed. R. Civ. P. 5(b )(2)(D).

Attachment E - Supplemental
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Attachment E - Supplemental

VIA00861835-VIA00861836 VIA00862907-VIA00862908 VIA00911618-VIA00911619 VIA01107876-VIA01107878 VIA01107971-VIA01107973 VIA01127416-VIA01127417 VIA01145487-VIA01145488 VIA01163976-VIA01163977

VIA11789365-VIA11789367 VIA11789368-VIA11789372 VIA11789373-VIA11789375 VIA12557484 VIA14067446-VIA14067449 VIA14759662-VIA14759663 VIA16074316-VIA16074319

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Schapiro Exhibit 287

Schapiro Exhibit 288