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 SOUTHERN DISTRICT OF NEW YORK -----------------------------------X VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION, LLC, Plaintiffs, vs. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants. -----------------------------------X THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, BOURNE CO., et al., on behalf of themselves and all others similarly situated, Plaintiffs, vs. YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants. -----------------------------------X HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF DAVID KING SAN FRANCISCO, CALIFORNIA WEDNESDAY, JANUARY 13, 2010 JOB NO. 18545 No. 07-CV-3582 No. 07-CV-2103

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

SAN FRANCISCO, CA JANUARY 13, 2010 9:06 A.M.

JANUARY 13, 2010

HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF DAVID KING, at WILSON SONSINI GOODRICH & ROSATI, One Market Plaza, Spear Tower, Suite 3300, San Francisco, California, pursuant to notice, before me, KATHERINE E. LAUSTER, CLR, CRR, RPR, CSR License No. 1894.

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

SAN FRANCISCO, CA

JANUARY 13, 2010

A P P E A R A N C E S: FOR THE PLAINTIFFS, VIACOM INTERNATIONAL, INC.: JENNER & BLOCK, LLP By: LUKE C. PLATZER, ESQ. 1099 New York Avenue, NW, Suite 900 Washington, D.C. 20001 T.202.639.6000 F.202.661.4813 [e-mail]

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC.: MAYER BROWN, LLP By: BRIAN M. WILLEN, ESQ. 1675 Broadway New York, New York 10019-5820 T.212.506.2146 F.212.202.1910 [e-mail]

FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS:
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BERNSTEIN LITOWITZ, BERGER & GROSSMANN, LLP By: BENJAMIN GALDSTON, ESQ. 12481 High Bluff Drive, Suite 300 San Diego, California 92130 T.858.720.3188 F.858.436.0188 [e-mail] and BY: LAUREN A. McMILLEN, ESQ. 1285 Avenue of the Americas New York, New York 10019 T.212.554.1593 F.212.554.1444 [e-mail]

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

SAN FRANCISCO, CA (Continued)

JANUARY 13, 2010

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

FOR DEFENDANT GOOGLE, INC.: GOOGLE, INC. By: ADAM L. BAREA, Esq. 1600 Amphitheatre Parkway Mountain View, California T.650.214.4879 F.650.618.1806 [e-mail] Also Present:

94043

ARMANDO ARASCO, Videographer KELLY TRUELOVE, Viacom consultant

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DAVID FELDMAN WORLDWIDE, INC.
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DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

SAN FRANCISCO, CALIFORNIA WEDNESDAY, JANUARY 13, 2010; 9:06 A.M.

THE VIDEOGRAPHER:

Today's videotaped

deposition of David King is taken on January 13th, 2010, at Wilson, Sonsini, Goodrich & Rosati, One Market Plaza, Spear Tower, Suite 3300, San Francisco, California in the matter of Viacom, International, versus YouTube, Incorporated, Case Numbers are 07-CV-2103 and 07-CV-3582 in Court Southern District of New York. My name is Armando Carrasco. I represent

David Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, Costa Mesa, California. We are now commencing at 9:06 a.m. Will all

present please identify themselves, beginning with the witness. THE WITNESS: for Google. MR. WILLEN: defendants. MR. BAREA: You-Tube. MR. GALDSTON: Benjamin Galdston, of Adam Barea, Google, Inc. and Brian Willen, Mayer Brown for the My name is David King, I work

Bernstein, Litowitz, Berger & Grossman, on behalf of the

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
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plaintiffs in this class action. MS. McMILLEN: Lauren McMillen, from

Bernstein, Litowitz, Berger & Grossman, also on behalf of the plaintiffs in this class action. MR. TRUELOVE: Viacom plaintiffs. MR. PLATZER: Luke Platzer of Jenner & Block, Kelly Truelove, consultant for

counsel for the plaintiffs in the Viacom action. THE VIDEOGRAPHER: Thank you.

Will the court reporter please swear in the witness. THE REPORTER: please. Do you solemnly state, under penalty of perjury, the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: MR. PLATZER: I do. Thanks. Will you raise your right hand,

DAVID KING, having been sworn as a witness, testified as follows: EXAMINATION

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

SAN FRANCISCO, CA

JANUARY 13, 2010

We push more bits than any other website on

the planet. Q. I'd like to shift gears for a little bit and

ask you about fingerprinting vendors other than Audible Magic. Other than Audible Magic and Gracenote, did

YouTube test any fingerprinting vendors' technology in 2006? A. Q. Not to my knowledge. Other than its own in-house fingerprinting

technology, did YouTube test any fingerprinting vendors' technology in 2007? MR. WILLEN: Objection. Are we talking about

audio fingerprinting and video fingerprinting? MR. PLATZER: MR. WILLEN: THE WITNESS: All of the above. Okay. No, we did not test other

fingerprinting technologies. MR. PLATZER: Okay.

(King Deposition Exhibit Number 10 was marked for identification.) MR. PLATZER: THE REPORTER: BY MR. PLATZER: Q. The court reporter has handed you a document 10? Yes.

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

SAN FRANCISCO, CA

JANUARY 13, 2010

marked as King Exhibit 10.

It's a December 5th, 2006,

e-mail from Stephen Cho to Franck Chastagnol, Bates number Google 189308 through 189312. And just let me know when you're ready. A. Q. Okay. Was YouTube approached by a fingerprinting

company called MAGIX in 2006? A. Q. I believe they were. And did YouTube ever end up testing their

technology? A. Q. No, they did not. And I'd like to ask you a question about the It says:

second paragraph of King Exhibit 10.

"Some of these external inbounds (Gracenote, Aurix, MAGIX, Tunesat, Attributer,. . .) are being handled as a matter of courtesy and just keeping abreadst of what's in the market. (i.e., no one is thinking about any sort of bake off with multiple 3rd party fingerprinting vendors. . .) Around this time frame, late 2006, did YouTube have any interest in retaining a fingerprinting vendor other than Audible Magic? MR. WILLEN: Objection to the form.

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

SAN FRANCISCO, CA

JANUARY 13, 2010

THE WITNESS:

I think this e-mail thread is

relatively clear in that the course of action that had been decided upon was to develop Google fingerprinting technology in-house, and that's even a -- slightly misstating it, in that Google had already built excellent fingerprinting technology, both audio and video fingerprinting technology, and really, the -- the work of implementing a system like this was two-fold. One part was making it scale to the size of YouTube, a not -- a nontrivial exercise, and the second piece was harnessing it to all the -- the file flows of -- of YouTube and dealing with the rights, and -and -- and, you know, having a really strong policy framework around that. So we had excellent technology to work from as -- as a raw match service, and the -- you know, as -as we looked at doing this type of work of integrating, we decided that we wanted to do that integration with our own technology, which was robust, and -- and that -that was a rational use of our -- of our resources. I might also add that -- you asked if -- you know, if we had done technical evaluations of these companies, and I'm sure you can appreciate that a company like Google has to be very careful around patent

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

And we weren't in a position to We wanted to --

announce the work that we were doing.

the -- the way of our company policy is to -- is to only announce things when you launch them, as opposed to pre-announce things that are under development. So we didn't -- we weren't in a position to be able to tell these companies that we had our own in-house technology, so our feeling was we wouldn't be able to put them on notice that they were talking to a potential competitor. And so as a -- as a matter of not wanting to create IP taint, we felt that it was important not to do deep technical evaluations of these technologies with them being unaware that we had competitive technology that we had developed at Google. BY MR. PLATZER: Q. Okay. So just to run through a couple of

the -- the vendors in this space, I just want to confirm whether or not they had any kind of interaction with YouTube in 2006-2007. A. Q. Uh-huh. Did Audible approach YouTube about its

fingerprinting technology? A. Yes, I spoke to Auditude about their

DAVID FELDMAN WORLDWIDE, INC.
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fingerprinting technology. Q. And YouTube didn't end up testing that

technology in 2006 or 2007? A. Q. Yes. Is Vobel -- did they approach YouTube in 2006

about their fingerprinting technology? A. Q. They did. And YouTube didn't test their fingerprinting

technology in 2006-2007 either? A. That is correct, but I'd just like to, once One, the

again, just point out that -- two things.

technology that we deployed was world class in its performance. And secondly, that no matter which

matching engine we used, there were still many months of work to make it work within YouTube's environment. Q. A. Q. Okay. But let's say --

So there were no shortcuts here. Okay. But at the point in time of February of

2007, YouTube wasn't testing Auditude; right? MR. WILLEN: THE WITNESS: February of 2007. BY MR. PLATZER: Q. And it wasn't testing Gracenote any longer at Objection to the form. We did not test Auditude in

DAVID FELDMAN WORLDWIDE, INC.
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that point; right? A. Testing is -- requires real resources, and I

outlined before some of the considerable issues around IP taint if we were to do technical evaluations of all these companies, which we eventually ended up competing with. Q. Okay. But the answer is that in February of

2007 YouTube had ceased its testing of Gracenote; right? MR. WILLEN: THE WITNESS: February of 2007. BY MR. PLATZER: Q. And YouTube also didn't test Audible Magic's Objection to the form. We did not test Gracenote in

proposal for a video solution that we looked at earlier in the deposition; correct? A. So as a practical matter, if we couldn't come

to terms on financial matters and service level agreements, there seemed to be little point in doing technical evaluations of services that we weren't ready to contract for. Q. Okay. So if someone had made a representation

in -- in February of 2007 that YouTube was continuing to test Gracenote, Audible Magic, and Auditude, that wouldn't be an accurate representation, would it?

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
e6743c04-aace-4c30-964e-1997734eae33