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. ) Case No. 07CV2203 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. ) Case No. 07CV3582 YOUTUBE, INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) __________________________________) VIDEOTAPED DEPOSITION OF TINA EXARHOS NEW YORK, NEW YORK MONDAY, FEBRUARY 23, 2009 REPORTED BY: ERICA RUGGIERI, CSR, RPR JOB NO: 16507

DAVID FELDMAN WORLDWIDE, INC.
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February 23, 2009 9:36 a.m.

VIDEOTAPED DEPOSITION OF TINA EXARHOS, held at the offices of Wilson Sonsini Goodrich & Rosati, 1301 Avenue of, New York, New York, pursuant to notice, before before Erica L. Ruggieri, Registered Professional Reporter and Notary Public of the State of New York.

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

c6265d65-63a8-4fa4-b560-413d94551958

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A P P E A R A N C E S FOR THE PLAINTIFFS: JENNER & BLOCK, LLP BY: SCOTT B. WILKENS, ESQ

1099 New York Avenue, NW Washington, D.C. 20001 [phone] [e-mail]

FOR THE DEFENDANTS WILSON SONSINI GOODRICH & ROSATI, PC BY: BART E. VOLKMER, ESQ. 650 Page Mill Road Palo Alto, CA 94304 [phone] [e-mail] - and MAYER BROWN, LLP BY: JASON KIRSCHNER, ESQ. 1675 Broadway New York, New York [phone] [e-mail] 10019

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

c6265d65-63a8-4fa4-b560-413d94551958

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A P P E A R A N C E S: (Cont'd) ALSO PRESENT: MICHELENA HALLIE, MTV Networks CARLOS KING, Videographer

* * *

DAVID FELDMAN WORLDWIDE, INC.
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IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the respective parties herein, that filing and sealing be and the same are hereby waived. IT IS FURTHER STIPULATED AND AGREED that all objections, except as to the form of the question, shall be reserved to the time of the trial. IT IS FURTHER STIPULATED AND AGREED that the within deposition may be sworn to and signed before any officer authorized to administer an oath, with the same force and effect as if signed and sworn to before the Court.

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

c6265d65-63a8-4fa4-b560-413d94551958

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THE VIDEOGRAPHER:

This is tape

number one of the videotape deposition of Tina Exarhos, in the matter Viacom International, Inc., et al. versus, Inc., et al. and the Football League, et al., vs, YouTube LLC, and Google, Inc., et al. This deposition is being held at 1301 Avenue of the Americas, New York, New York, on February 23, 2009, at approximately 9:45 a.m. My name is Carlos King, from the firm of David Feldman Worldwide, and I am the legal video specialist. The court reporter is Erica Ruggieri, in association with David Feldman Worldwide. Will counsel please introduce themselves. MR. VOLKMER: Bart Volkmer from

Wilson, Sonsini Goodrich & Rosati representing the defendants Google and YouTube. MR. KIRSCHNER: Jason Kirschner,

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

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T. EXARHOS from Mayer Brown LLP, representing defendants Google and YouTube. MR. WILKENS: Scott Wilkens,

Jenner & Block, representing the plaintiffs. MS. HALLIE: MTV Networks. THE VIDEOGRAPHER: Will the Michelena Hallie,

court reporter please swear in the witness. T I N A E X A R H O S , called as a

witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. VOLKMER: Q. A. Q. Good morning. Good morning. Could you please state your name

and title for the record? A. Tina Exarhos, executive vice

president of marketing for MTV. Q. before? And have you ever been deposed

DAVID FELDMAN WORLDWIDE, INC.
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T. EXARHOS were providing, and they were providing good promotional placement for us. Q. And the promotional clips that

MTV provided to YouTube, they were authorized to be on YouTube, correct? A. Q. The ones that I'm referring to? Right. They were authorized to

be on YouTube, correct? A. Q. Correct. Do you know what the term

content council refers to? A. Q. A. It was a meeting. A single meeting? I don't recall exactly how many

meetings, but I think that it might have been a -- it might have been a one-time meeting that we did. I don't remember if

it was more than one meeting. Q. meeting? A. If it's the meeting that I think And what was the topic of the

we are talking about, we discussed just kind of in the changing environment -- you know what, I can tell you what I know I

DAVID FELDMAN WORLDWIDE, INC.
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T. EXARHOS talked about in that meeting. Q. A. Right. Because I don't remember the

broad themes of the entire meeting. We talked about kind of content, how things were shifting in the digital space and how content was marketing and marketing was content, and just kind of a shifting nature of marketing in the digital universe. of the meeting was. Q. So you did a presentation at That was what my piece

this meeting, the content council meeting? A. Q. attended? A. It was a fairly large group of I did. And who was at the meeting, who

people from, representatives from all digital departments, from programming, marketing, our digital group. I'm sure

there were some other groups there, but it was a very large group of people -- a fairly large group. Q. So it was a fairly important

DAVID FELDMAN WORLDWIDE, INC.
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T. EXARHOS it, specifically. I was definitely aware

that we were working with YouTube and a number of other sites at that time to upload promotional materials, so I was aware. I don't think it required my

approval, but I was aware of it. Q. Do you think that YouTube was

infringing any MTV copyrights by hosting those clips? MR. WILKENS: A. Objection. So

We authorized those clips.

you know, we knew exactly what we were providing, from a promotional perspective, and they were aware of what we were providing. Q. A. Q. Right. So no. No, you do not think that

YouTube was infringing any MTV copyrights by posting those clips? MR. WILKENS: Objection. Calls

for a legal conclusion. A. Right. I mean they were

authorized.

Beyond that, I'm not sure,

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T. EXARHOS sense of fairness, if MTV sued YouTube for those clips that MTV provided? MR. WILKENS: A. Yeah. Objection.

I mean it's hard for me

to characterize what would be fair or not, from a legal perspective. Q. Not from a legal perspective,

just from your own sense of right and wrong and what is fair and unfair. A. Q. A. For those specific clips? Correct. No. We were providing those

clips for a marketing purpose, and we had an understanding that we were providing them to YouTube, and YouTube understood that we were providing them. Q. And from a marketing

perspective, were you happy with the results of those clips appearing on YouTube? A. For that specific campaign, my

recollection is that it was -- it was a good marketing campaign. Q. It helped raise awareness of the

DAVID FELDMAN WORLDWIDE, INC.
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T. EXARHOS to promote new season plus DVD." Why did you send this e-mail to Mr. Graden? A. I was kind of unofficially just

reporting back to him on our marketing for that show. Q. And what is the reference here

to "Milonakis from content we provided to promote new season plus DVD"? A. It was the promotional material

that we created and provided to YouTube and other sites for the purpose of promoting the new season on MTV2 and the DVD that was in store. Q. And if you could turn to the

last in time e-mail on the first page. A. Q. Uh-hum. You write, "YouTube touting

official partnership in a way that seems, well, official. It is not. But we did

give them the content, and they did give us, as I think you saw, a home page, premium position, and results have been overwhelming in just 24 hours. Couldn't

DAVID FELDMAN WORLDWIDE, INC.
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T. EXARHOS times where they are advising us, but it's under our supervision. Q. So can you give me the general

timeline of a viral marketing campaign for a particular television program, when does the viral marketing campaign start, when does it end, that sort of general timeline for the marketing? A. Yeah. It varies from priority

to priority, just based on what our goals are again. If we have a show that's very

well-known, it might be that we just release, you know, short, controlled clips a week out to just generate interest for a new season. But if it's a show that nobody has heard of before, we might start providing content a little bit earlier on to try to build some buzz, and that would lead into the final week of really driving people to tune in to a show. from one week to three. speaking. Q. Does MTV engage in viral So anywhere

That's generally

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T. EXARHOS itself. Q. But a piece of marketing

material need not contain a tune-in message to be promotional, right? MR. WILKENS: A. Objection.

I would be making that judgment.

So I wouldn't say, just generally speaking, that any piece of content that doesn't have a tune-in message would be promotional in value or -- in value. We

would choose very carefully what type of material would be uploaded, if it didn't have a -- either way, we would choose carefully. I wouldn't say that any piece of content without a call to action would be of value to us. Q. Right. And the question was a

piece of marketing material need not contain a tune-in message to be promotional, right? MR. WILKENS: A. Objection.

I thought you had a follow-up You didn't?

after that.

DAVID FELDMAN WORLDWIDE, INC.
805 Third Avenue, New York, New York 10022 [phone]

c6265d65-63a8-4fa4-b560-413d94551958