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-2103 ) 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 MICHELENA HALLIE NEW YORK, NEW YORK THURSDAY, DECEMBER 10, 2009 JOB NO. 18264

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

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A P P E A R A N C E S:
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FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: JENNER & BLOCK 1099 New York Avenue, NW, Suite 900 Washington, D.C. 2000 [phone] BY: SCOTT WILKENS, ESQ. [e-mail]

FOR DEFENDANTS, GOOGLE: WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 BY: MAURA L. REES, ESQ. [e-mail]

ALSO PRESENT: Carlos King, Videographer

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

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FEDERAL STIPULATIONS

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.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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MICHELENA HALLIE THE VIDEOGRAPHER: This is

tape number one of the videotaped deposition of Michelena Hallie, in the matter of Viacom International, Inc. versus YouTube Inc., the Football Association Premier League Limited, Bourne Company, et al., versus YouTube Inc. et al., in the United States District Court for the Southern District of New York. This deposition is being held at the offices of Wilson Sonsini, located at 1301 Avenue of the Americas, New York, New York, on December 10th, 2009, at approximately 10:09 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 Rebecca Schaumloffel, in association with David Feldman Worldwide.

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

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MICHELENA HALLIE Will counsel please introduce themselves. MS. REES: Maura Rees, from

Wilson Sonsini, on behalf of the YouTube defendants. MR. WILKENS: Scott Wilkens,

from Jenner & Block LLP, on behalf of the Viacom plaintiffs. THE VIDEOGRAPHER: Will the

court reporter please swear in the witness.

M I C H E L E N A

H A L L I E,

called as a witness, having been first duly sworn by a Notary Public of the State of New York, was examined and testified as follows:

DIRECT EXAMINATION BY MS. REES: Q. A. Q. Good morning. Good morning. Could you please state your

full name and home address for the

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

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MICHELENA HALLIE include Mind of Mencia for monitoring and removal for full episodes only on YouTube;" is that right? A. yep. Q. And do you understand full That's what it looks like,

episodes only to mean that BayTSP was only being authorized to take down full episodes, as opposed to shorter clips, from that show? A. E-mail. Q. In this timeframe, That's how I read this

approximately October 17, 2006, why was Viacom only authorizing full episodes of takedowns, for example, for this Mind of Mencia show, as opposed to shorter clips? A. Oh, I haven't had this on. I feel comfortable only testifying to general statements. we get into details, they might be privileged, and I'd want to talk to Mr. Wilkens. But my recollection, even If

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

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MICHELENA HALLIE though, as I said, I wasn't frontlining these decisions, was that these decisions were at least partly because of negotiations with YouTube going on at that time. Q. When you say "negotiations

with YouTube," negotiations for what? A. My understanding was that

Viacom was, during this general timeframe, negotiating with YouTube for a possible license agreement that would authorize the Viacom material to appear on YouTube. Q. How does the distinction

between full episodes takedowns and takedowns of shorter clips from programs affect negotiations with YouTube that were going on at that time? A. As I said, I wasn't directly

involved in those negotiations, but I recall that full episodes, versus taking down everything, was relevant in the discussions and the goals.

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

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MICHELENA HALLIE that Viacom, at some point, whether it was December or not, some point prior to the beginning of February 2007, began asking BayTSP to start ramping up to do a large single takedown event? A. I know there was a ramp up

during our entire tenure with BayTSP. Because they started off as a pretty small company that never had an assignment -- that hadn't had an assignment nearly up to the scale we were putting forward. But I know that

there were takedowns steadily during that entire period from near the beginning through. I don't even know

if BayTSP is still involved in it. Q. So when did you stop having

involvement with BayTSP, if you did? A. At some point in time --

actually, my involvement kind of evolved over time and gradually, my group was not frontlining the process as much. I don't remember when the

transition happened.

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

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MICHELENA HALLIE Q. Was there some directive at

Viacom, at that time, to try to increase the infringing video counts for the mass YouTube takedown? A. directive. I am not sure it was a The goal was to identify

all of the clips on YouTube that met the criteria in place. And I do recall

that BayTSP was not fully equipped to find all of the clips and confirm that they were, in fact, our assets in as effective way as we had hoped. an evolution of technology. Because as I said before, this was a major assignment for BayTSP in that they did have to ramp up. Q. Did Viacom have a goal of It was

finding 100,000 allegedly infringing clips for the mass takedown at YouTube? A. I don't remember a goal of a

particular number. MR. WILKENS: Can we just

take a short off-the-record for a second?

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

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MICHELENA HALLIE Did you understand this to mean that the human reviewer had mistakenly marked for takedown something that didn't meet Viacom's criteria for takedown? A. chain. This is a confusing E-mail Cindy's E-mail would suggest, So I

possibly, something different.

don't -- I don't recall where the possible glitch was here. Q. But it was ultimately

determined that the video uploaded by Mr. Asch was taken down in error; is that the case? A. Q. I don't remember. Do you know -- Mr. Ishikawa

refers to a change in procedures, and "the procedures that will prevent this from occurring again." Do you know what the change in procedures is that he is referring to? A. I don't remember the But this is

specific change here.

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

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MICHELENA HALLIE consistent with my general recollection that it was all part of a ramping up process and that BayTSP was trying to tweak their process to meet our needs. Q. In fact, whatever change in

the procedures BayTSP made, didn't prevent mistaken identifications from occurring again, right? MR. WILKENS: Objection to

the form of the question. A. I recall that there were I don't know if

erroneous takedowns.

-- I can't attribute them directly to procedures that BayTSP was implementing. Q. I just don't remember.

After the mass takedown of

100,000 clips to YouTube that occurred in early February, 2007, there were a number of counter-notices that Viacom received, right? A. Counter-notices received. I

don't think I would characterize them as a number. I think it was a very,

very small percentage to the 100,000.

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

d68211ef-300a-4cbf-a073-660accedeef1

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MICHELENA HALLIE building up past 2,100 backlog. suggests to me that we are not progressing effectively and you need to reallocate accordingly." Was it ever your understanding that BayTSP made misidentifications because, at least, Adam Cahan from Viacom was telling them to process videos more quickly? MR. WILKENS: Objection to That

the form of the question. A. I don't think I ever knew or I

even thought that that was the case. think -- when I saw these misidentifications, to me, it was a logical extension of the fact that we were pushing BayTSP really, really hard. That as a result of our

significant project, they had to hire -- for some reason, the number 40 comes in, during the Christmas holidays to help them to buy new equipment and that it was almost inevitable in the almost vertical ramping up that was

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

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MICHELENA HALLIE happening during that time that misidentifications would occur. Q. You said earlier that you

believe that the number of counter-notices that Viacom received was a very small percentage of the number of takedowns it sent. characterizing that correctly? A. Q. That's right. What do you believe to be Am I

the percentage of counter-notices that Viacom received as compared to the number of takedowns it sent out? A. All I can do is extrapolate

from a document that you showed me that had something like 260 and compare that to the something like 100,000. I don't know if those were the ultimate numbers that the analysis would be, but that's what I gleaned from the documents, at least at one point in time. Q. Is it the case that if a

user's video is taken down from YouTube

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

d68211ef-300a-4cbf-a073-660accedeef1