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

Filing 318

DECLARATION of Susan J. Kohlmann/ Exhibits to Declaration of Susan J. Kohlmann in Support of Viacom's Opposition to Defendants' Motion for Summary Judgment in Support re: 284 Memorandum of Law in Opposition to Motion,. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 52, # 2 Exhibit 53, # 3 Exhibit 54, # 4 Exhibit 55, # 5 Exhibit 56, # 6 Exhibit 57, # 7 Exhibit 58, # 8 Exhibit 59, # 9 Exhibit 60, # 10 Exhibit 61, # 11 Exhibit 62 - Part 1, # 12 Exhibit 62 - Part 2, # 13 Exhibit 62 - Part 3, # 14 Exhibit 62 - Part 4, # 15 Exhibit 62 - Part 5, # 16 Exhibit 62 - Part 6, # 17 Exhibit 62 - Part 7, # 18 Exhibit 62 - Part 8, # 19 Exhibit 62 - Part 9, # 20 Exhibit 63, # 21 Exhibit 64, # 22 Exhibit 65, # 23 Exhibit 66, # 24 Exhibit 67, # 25 Exhibit 68, # 26 Exhibit 69, # 27 Exhibit 70, # 28 Exhibit 71, # 29 Exhibit 72, # 30 Exhibit 73, # 31 Exhibit 74, # 32 Exhibit 75, # 33 Exhibit 76, # 34 Exhibit 77, # 35 Exhibit 78, # 36 Exhibit 79, # 37 Exhibit 80)(Kohlmann, Susan)

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC. TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION, LLC, ) ) ) ) ) ) Plaintiffs, ) ) vs. ) NO. 07-CV-2203 ) YOUTUBE, INC., YOUTUBE, LLC, ) and GOOGLE, INC., ) ) Defendants. ) ___________________________________) ) THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., et al.,) on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) vs. ) NO. 07-CV-3582 ) YOUTUBE, INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ___________________________________) VIDEOTAPED DEPOSITION OF ROELOF BOTHA MENLO PARK, CALIFORNIA WEDNESDAY, AUGUST 5, 2009 JOB NO. 17298

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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AUGUST 5, 2009 9:04 a.m.

VIDEOTAPED DEPOSITION OF ROELOF BOTHA, SHEARMAN & STERLING LLP, 1080 Marsh Road, Menlo Park, California, pursuant to notice, and before me, ANDREA M. IGNACIO HOWARD, CLR, RPR, CRR, CSR License No. 9830.

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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A P P E A R A N C E S:

FOR THE PLAINTIFFS VIACOM INTERNATIONAL INC.: SHEARMAN & STERLING LLP By: KIRSTEN NELSON CUNHA, Esq.

599 Lexington Avenue New York, New York 10022-6069 [phone] [e-mail]

FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP By: BENJAMIN GALDSTON, Esq.

12481 High Bluff Drive, Suite 300 San Diego, California 92130-3582 [phone] [e-mail]

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: WILSON SONSINI GOODRICH & ROSATI, LLP By: DAVID H. KRAMER, Esq.

650 Page Mill Road Menlo Park, California 94304 [phone] [e-mail]

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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A P P E A R A N C E S

(Continued.)

FOR THE WITNESS ROELOF BOTHA: DURIE TANGRI PAGE LEMLEY ROBERTS & KENT LLP By: RAGESH K. TANGRI, Esq.

332 Pine Street, Suite 200 San Francisco, California 94104 [phone] [e-mail]

ALSO PRESENT:

Lou Meadows, Videographer.

---oOo---

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA MENLO PARK, CALIFORNIA AUGUST 5, 2009 9:04 a.m.

THE VIDEOGRAPHER:

On the record.

This is today's videotaped deposition of Roelof Botha, taken on August 5th, 2009, at Shearman & Stearling, 1080 Marsh Road, Menlo Park, California. In the matter of Viacom International vs. YouTube, Inc., and The Football Association Premier League Limited, et al., vs. YouTube, Inc., et al. Case No. 07-CV-2103 and 07-CV-3582. In the

United States District Court in the Southern District of New York. My name is Lou Meadows, and I represent David Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, in Costa Mesa, California. We are now commencing at 9:04 a.m. Will all present please identify yourselves and state whom you represent for the record. MS. CUNHA: Kirsten Cunha from Shearman &

Stearling on behalf of the Viacom plaintiffs. MR. GALDSTON: Benjamin Galdston of Berstein,

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA Litowitz, Berger & Grossmann on behalf of the class plaintiffs. MR. KRAMER: I'm Dave Kramer from Wilson

Sonsini representing the defendants Google and YouTube. MR. TANGRI: witness. THE VIDEOGRAPHER: Thank you. Ragesh Tangri representing the

If there are no stipulations, the court reporter may now administer the oath.

ROELOF BOTHA, having been sworn as a witness, testified as follows:

EXAMINATION BY MS. CUNHA MS. CUNHA: A Q Q. Good morning, Mr. Botha.

Good morning. Could you please state briefly your

educational background? A Sure. I completed an undergraduate degree at the University of Cape Town and -- with majors in

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA three cofounders established, I don't know the exact nature of the incorporation they sought, but I believe it was a -- a Nevada C Corp or S Corp that they established initially when they cofounded the company. And when we made the decision to invest, there was a very long period that elapsed between our commitment to the company to invest and the actual closing of the investment, given that the company had to reincorporate as a Delaware Corporation and just all the paperwork associated with sort of cleaning up the financing documents, sorting out the founder of stock, founder basing, et cetera. And as it's typical in our business, we get involved in the company after we make an investment decision and negotiate mutually agreeable terms. We

typically start to work side by side with the company prior to the actual closing of the technically -technical closing of the financing, since time is of the essence for these companies, and we don't want to lose a month or two between our decision to invest and the actual closing of the financing. And for that reason, that -- given the specifics of YouTube's sort of capital structure history, that time was unusually long in the context

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA of this investment. Q So let me make sure I -- I understand that. So in the case of -- of YouTube, Sequoia made a decision to invest in the company, and then there was some period of time prior to the actual closing of the investment to -- to clean up these various issues that you've just discussed; correct? A Q A Correct. And -I don't know the exact time that elapsed

between -- so there are a couple of, I think, key events to highlight. One is a -- is a decision to invest based on what we believe to be the merits of the investment. negotiation and agreement on a set of terms for the investment between Sequoia and the cofounders and the signing of such term sheet. And then, the actual A

closing of the financing when money changed hands. Q And if I understand your testimony, what

you're saying is, in that period of time between the decision to invest and the closing of the investment, Sequoia started working with YouTube as if it were, in essence, already a portfolio company; is that -- is that fair to say?

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450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA MR. TANGRI: Objection; ambiguous.

You can answer. THE WITNESS: very careful. The -- when we initially made the decision to invest, I believe in early September, we -- I don't -I don't know how many other investment groups the company was still talking to, but I was starting to provide feedback to the cofounders about the company. It may have been product feedback about features on the site that I would personally find useful, and given that they were personal friends, I just had an interest in helping them. Our initial negotiations with the company led to a set of terms that the company was not comfortable with, and they may have started discussions with other investment groups, and we subsequently did arrive at a formal agreement and signed that agreement. Sometime So let me make sure I just be

after that, the company took up office space at Sequoia Capital, prior to the actual closing of the investment. Q Okay. So let me just make sure I understand.

As I understand it, there was a decision to invest in the company that was made by Sequoia

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA sometime in the September 2005 time frame, and once that decision was made, you started providing some advice and feedback to the -- to the founders of the company, even though the investment had not yet been finalized and closed; correct? MR. TANGRI: Objection to the extent it

mischaracterizes his prior testimony. THE WITNESS: please? MS. CUNHA: Sure. I'm just trying to unpack Could you repeat the question,

what -- what you've told me here and make sure I understand it. to trip you up. understand this. Q As I understand it, you've kind of described There was a decision to So if I get it wrong, I'm not trying I'm just trying to make sure I

three categories of events.

invest, then there was a negotiation of terms of the agreement, and then there was the -- the closing of the financing. And as I understand your testimony, once the decision to invest was made, you started providing some feedback and advice to the company, even though the investment had not yet closed; is that correct? A So let me be very careful, though, because

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA even before the company -- even before we reached an investment decision, given that these were personal friends of mine, I was providing them feedback on the service. At our first meeting at Sequoia Capital,

when they showcased the website, we provided feedback ideas. It -- it's the nature of the venture capital business that any time we interact with the company, part of establishing credibility with the founders, given that you're going to be an adviser to them, hopefully for years, over the course of the investment, you provide feedback. You provide advice

on how to run a business, who to recruit, how to structure the company, which direction you should head strategically. Q Okay. So let's take that point in time as

the first point in time, which is the decision to invest, the time that Sequoia makes the decision to invest. Prior to that point in time, do you recall any discussions with anyone internally at Sequoia or externally with YouTube or other third parties concerning copyright issues related to YouTube? A Before we made the decision to invest?

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA Q Correct. MR. TANGRI: THE WITNESS: Objection; overbroad. So I want to be careful because I don't have a

I don't remember the specific date.

calendar in front of me, but to the best that I can recall, we did not speak to anyone outside Sequoia Capital about copyright-related matters with regards to YouTube. MS. CUNHA: Q. How about internally? Were

there any discussions internally at Sequoia Capital, prior to the decision to invest, concerning copyright issues related to YouTube? A As best I can recall, we did not have

discussions internally to Sequoia, prior to the decision to invest, relating to copyright matters. Q Now, just kind of moving the timeline

forward, as I understand it, once the decision to invest was made, there was a period of time where there was a negotiation of terms, and it sounds like there were some matters involving changing the state of incorporation that needed to occur prior to the time the investment closed. So my next question is, from the time that Sequoia made the decision to invest, to the time that

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA the financing closed, do you recall in that time period any discussions internally or externally concerning copyright issues related to YouTube? A I don't remember the precise closing dates,

and so I -- I just candidly don't want to answer untruthfully, because I don't recall at which point a discussion may have occurred, given that I don't recall the specific closing date. Q Okay. Is it fair to say you do recall at

some point whether or not it took place before or after the closing? Is it fair to recall -- to say

that at some point you do recall that there were conversations concerning copyright issues related to YouTube? A Q A Q Could you -- sorry. Sure. -- repeat the question? My question is, at any time in this 2005 time Can you --

period, do you recall any conversations concerning copyright issues related to YouTube? A Q A At any time in 2005? Uh-huh. So I do recall that in the fourth quarter of

2005, we did have discussions at the company with

DAVID FELDMAN WORLDWIDE, INC.
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R. BOTHA regards to copyrighted matters. Q A Now, was this after the financing closed? I don't recall. As I mentioned before -- I'm

sorry, I don't -- because it was such an unusual situation to have the reincorporation and just -- I don't recall the date. smoother. Q Now, tell me what you recall about these Normally, things are a lot

discussions in the fourth quarter of 2005 with regards to copyright matters. MR. TANGRI: And I'm just going to caution

you at this point that if any of those discussions were with or relayed advice or communications had with lawyers, exclude the substance of any legal communications from your answer as a privileged basis. MR. KRAMER: THE WITNESS: MR. KRAMER: THE WITNESS: Join. I beg your pardon? I join in that instruction. Oh, okay. But it's permissible

you can identify a discussion, but not the content? MR. TANGRI: THE WITNESS: understand. MR. TANGRI: You -- you -- yes. If the Correct, correct. I just want to make sure I

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R. BOTHA answer -- yes, you can identify a discussion and the participants, but not to disclose the substance of the discussion, if the substance was -THE WITNESS: MR. TANGRI: Understood. -- infected with lawyer

communications, for want of a better word. THE WITNESS: Understood.

So at -- at some point in the fourth quarter of 2005, Chad Hurley and myself met with an attorney at Wilson Sonsini. MS. CUNHA: A Q. And who was that attorney? I can't recall

I believe it's Cathy Kirkman.

her -- I hope I got her last name correct. Q And what was discussed at that meeting? MR. TANGRI: And at this point, I'm going to

instruct you not to answer the question based on attorney-client privilege. MR. KRAMER: THE WITNESS: MS. CUNHA: Q. Join. Understood. And are you going to follow

your attorney's advice and not answer the question? A Q Yes. Now, do you know how YouTube came to be

represented by Cathy Kirkland and Wilson Sonsini?

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R. BOTHA A I don't recall the specific connection

between -- so at the time that we invested -- or the -- at the time that I first met with the team, they had, I think, self-incorporated. Maybe they'd

used, you know, a website or some other service to do their incorporation. They didn't have outside counsel

representation, and so we suggested that, as a matter of good sort of standard practice, the company should seek company counsel in the same fashion that we would seek investor counsel when making an investment. And I may have introduced them to a few different law firms. I don't recall specifically

whether I was the one to introduce them to Stephen Wells, who ended up being the company's outside corporate counsel. Q period? A I did not know Ms. Kirk -- Mrs. Kirkland? MR. KRAMER: THE WITNESS: MR. KRAMER: THE WITNESS: Kirkman. Kirkman. Yes, K-I-R-K-M-A-N. Yeah, Kirkman. Did you know Ms. Kirkland prior to this time

I did not know Cathy Kirkman before this. MS. CUNHA: Let's mark this as the first

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R. BOTHA Exhibit. (Document marked Botha Exhibit 1 for identification.) MS. CUNHA: And while we're there, let's just

mark this as the second exhibit. MR. TANGRI: Thank you.

(Document marked Botha Exhibit 2 for identification.) MS. CUNHA: Q. Showing you what's been

marked as Exhibit 1 and 2, have you had an opportunity to look at those documents? A Q A Q A I have looked at the documents. Okay. Do you recognize them?

I do recall these documents. And you -Well, I obviously saw them electronically as

e-mails, not these specific printouts, but... Q But you recognize them as printouts of -- of

e-mail chains in which you were one of the recipients? A Q I do recognize. And does seeing these two documents refresh

your recollection as to when this meeting that you described with Cathy Kirkman took place? MR. KRAMER: Objection to the extent it

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R. BOTHA mischaracterizes the prior testimony, and it's vague. THE WITNESS: As I mentioned before, I do not

recall the specific date of the meeting with Cathy Kirkman, but these e-mails do specify the specific date that was scheduled for a meeting. I don't know whether the meeting actually took place on that date without consulting a calendar. It may have been rescheduled. MS. CUNHA: Q. I do not know.

And does seeing these two

documents refresh your recollection as to whether or not that meeting took place prior to the closing of Sequoia's investment in YouTube? A Unfortunately, neither of these documents

cite the actual closing date of the investment in YouTube, and as such, I cannot conclude whether or not they occurred before or after. Q Now, directing your attention to Exhibit 1,

there is an e-mail, the second from the top, from you to Mr. Hurley, dated September 21st, 2005, at 2:54 p.m.; do you see that e-mail? A Q I do see that. And do you see you write to Mr. Hurley that,

"I will get you the contact information for two different IP strategists, including the attorney at

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R. BOTHA you see that? A Q Give me a second, please. I do see that.

And I think you testified earlier that the

company moved its headquarters to Sequoia's space; do you recall that testimony? MR. TANGRI: Objection to the extent it

mischaracterizes the prior testimony. You can answer. THE WITNESS: I do recall the prior testimony

that YouTube took up space at Sequoia Capital for some time. MS. CUNHA: Q. And is that what you're

referring to as an incubation area -A Q A The --- in this investment memorandum? The incubation area at Sequoia Capital is a

space we set aside for entrepreneurs working on new ideas, which you might refer to as an "entrepreneur residence," or for recent investments where companies do not yet have their own office space, and we can essentially provide them with office space for free to help them not deal with that friction as they're trying to work on their business. Q And is that, in fact, where YouTube moved?

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R. BOTHA A You -- YouTube didn't move -MR. TANGRI: THE WITNESS: MR. TANGRI: THE WITNESS: Objection. Sorry. Go ahead. YouTube did move to the Sequoia

Capital incubation area sometime following this, the date of this investment memorandum, and before they took up space in San Mateo later in the fourth quarter of 2005. MS. CUNHA: were in that space? A Q A Which space? The Sequoia incubation space. I don't recall the specific duration. If I Q. Do you recall how long they

had to estimate, it was probably four to six weeks, as best I recall. Q And that space is actually at Sequoia's

offices or at the same address of Sequoia's offices? A offices. Q So in that period of time that they were It's at the same address as Sequoia's

there, were you working closely with YouTube while they were in the incubation space? A Could --

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA mischaracterizes his prior testimony. THE WITNESS: Yeah, I think I -- I'll stick I gave a detailed

to what I said the previous time. explanation. MS. CUNHA: Q.

Now, other than the Nike

video, do you recall if any of the other videos that were amongst the most -- the most viewed in this distribution analysis were professionally produced content? MR. TANGRI: Objection; mischaracterizes his

prior testimony and vague. THE WITNESS: I recall the Nike video being a

professionally produced video, because we went to meet with the people who produced and uploaded that video on YouTube. MS. CUNHA: A Q. When did you do that?

I do not recall the specific date, but I

believe -- I believe it was at the end of 2005. Q So in 2005, you were aware that companies

were creating content for promotional purposes and posting it on the YouTube website; is that fair to say? A It's fair to say that I was aware that Nike

had uploaded a video that they wanted to distribute

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA for promotional purposes for a new shoe. Q Were you aware of any other companies posting

promotional content on the YouTube website in the 2005 time period? A I do not recall being aware of other

companies. Q At some point, did you become aware of other

companies posting promotional content on the YouTube website? A At some point, I did become aware of -- of

other companies using YouTube for promotional purposes for uploading content. Q And, in fact, early on when Sequoia first

decided to invest, was part of the revenue model for YouTube the notion that companies would use the website to post promotional content? A please? Q Sure. When Sequoia was deciding to invest in YouTube and was looking at potential revenue models, was part of what Sequoia envisioned for the website in the future was that the site would be used by companies who would post promotional content? Sorry. Could you repeat the question,

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

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R. BOTHA Lazy Sunday gained a lot of popularity and significant video views. Chad Hurley noticed that this was a very

popular video and sent a message to Saturday Night Live, or I don't know which specific media company parent to whom he sent the communication, notifying them that this video was on the service. We, YouTube, did not know who the individual was who uploaded the video clip, nor whether that individual had the authority to upload that particular video, but we notified the owners of that show that this clip was available on YouTube and we didn't know if it was authorized and if it was not authorized, that they should please notify the company so that we could take it down in compliance with the company's takedown policies, and the company did not receive any reply for six weeks thereafter. MS. CUNHA: communication? A I do not believe I was copied on that Q. Were you copied on that

communication. Q But somebody told you about the

communication? A yes. Chad Hurley reported this incident to me,

DAVID FELDMAN WORLDWIDE, INC.
450 7th Avenue - Ste 2803, New York, NY 10123 [phone]

990906b4-ac3c-4a3c-a08f-6ffd13a094f5