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 ---o0o--THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED AND BOURNE CO., ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,, ) ) ) ) ) ) PLAINTIFFS, ) vs. ) 07 CIV. 3582(LLS) ) YOUTUBE, INC., YOUTUBE, LLC ) AND GOOGLE, INC.,, ) ) DEFENDANTS. ) ) ______________________________) ) VIACOM INTERNATIONAL INC., ) COMEDY PARTNERS, COUNTRY MUSIC) TELEVISION, INC., PARAMOUNT ) PICTURES CORPORATION, AND ) BLACK ENTERTAINMENT ) TELEVISION, LLC, ) ) PLAINTIFFS, ) vs. ) 07 CIV. 2103 (LLS) ) YOUTUBE, INC., YOUTUBE, LLC ) AND GOOGLE, INC.,, ) ) DEFENDANTS. ) ______________________________) VIDEOTAPED DEPOSITION OF COURTNEY NIEMAN WEDNESDAY, DECEMBER 16, 2009 PALO ALTO, CALIFORNIA Job No. 18293

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

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ---o0o--THE FOOTBALL ASSOCIATION ) PREMIER LEAGUE LIMITED AND ) BOURNE CO., ET AL., ON BEHALF ) OF THEMSELVES AND ALL OTHERS ) SIMILARLY SITUATED,, ) ) PLAINTIFFS, ) vs. ) 07 CIV. 3582(LLS) ) YOUTUBE, INC., YOUTUBE, LLC ) AND GOOGLE, INC.,, ) ) DEFENDANTS. ) ) ______________________________) VIACOM INTERNATIONAL INC., ) COMEDY PARTNERS, COUNTRY MUSIC) TELEVISION, INC., PARAMOUNT ) PICTURES CORPORATION, AND ) BLACK ENTERTAINMENT ) TELEVISION, LLC, ) ) PLAINTIFFS, ) vs. ) 07 CIV. 2103 (LLS) ) YOUTUBE, INC., YOUTUBE, LLC ) AND GOOGLE, INC.,, ) ) DEFENDANTS. ) ______________________________) VIDEOTAPED DEPOSITION OF COURTNEY NEIMAN, TAKEN ON BEHALF OF THE DEFENDANTS, AT 9:28 A.M., WEDNESDAY, DECEMBER 16, 2009 AT 650 PAGE MILL ROAD, PALO ALTO, CALIFORNIA BEFORE MARY JACKSON, CSR NO. 8688, PURSUANT TO NOTICE.

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 For the Plaintiff Viacom: JENNER & BLOCK, LLP 1099 New York Avenue, NW, Suite 900 Washington, D.C. 20001 BY: JAMES COX, ESQ. [phone] [e-mail] For the Plaintiffs The Football Association Premier League Limited: PROSKAUER ROSE, LLP 2049 Century Park E, Suite 3200 Los Angeles, California 90067 BY: GIL PELES, ESQ. [phone] [e-mail] For the Non-Party BayTSP:

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KENDALL, BRILL & KLIEGER, LLP 10100 Santa Monica Boulevard, Suite 1725 Los Angeles, California 90067 BY: PHILIP KELLY, III, ESQ. [phone] [e-mail] For the Defendants Google and YouTube:

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WILSON, SONSINI, GOODRICH & ROSATI 650 Page Mill Road Palo Alto, California 94304 BY: DAVID KRAMER, ESQ. BART VOLKMER, ESQ. [phone] [e-mail] [e-mail] ALSO PRESENT: OSAMA HUSSAIN, BayTSP Counsel STUART PETTIGREW, Videographer

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

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INDEX Examination By Mr. Kramer ----oOo---EXHIBITS Number 1 E-mail Chain 6/7/2006 between Nieman and Gillette 2 E-mail Chain 2/8/2007 between Nieman and Cahan 3 E-mail Chain 10/19/2006 between Nieman and Misty 4 E-mail Chain 12/21/2006 between Nieman and Gillette 5 E-mail Chain 1/2/2007 between Gillette and Nieman 6 E-mail Chain 9/7/2006 between Nieman and Ishikawa 7 E-mail Chain 9/20/2006 between Woo and Ishikawa and Espinosa 8 9 Work Order 158-001 E-mail Chain 10/7/2006 between Hallie and Ishikawa and Nieman 10 E-mail Chain 10/7/2006 between Ishikawa and Hallie 88 76 87 71 58 56 54 52 47 Page 39 Page

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

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EXHIBITS Number 11 E-mail Chain 10/27/2006 between Ishikawa and Nieman 12 E-mail Chain 10/27/2006 between Arizala and Hallie 13 E-mail Chain 10/27/2006 between Arizala and Ishikawa 14 E-mail Chain 10/27/2006 between Hallie and Cahan and Arizala 15 E-mail Chain 11/6/2006 between Hallie and Arizala and Morales 16 E-mail Chain 10/3/2006 between Espinosa and Kawasaki 17 E-mail Chain 11/3/2006 between Ishikawa and Nieman 18 E-mail Chain 11/15/2006 between Hallie and Cruz 19 E-mail Chain 11/2/2006 between Arizala and Hallie 20 E-mail Chain 11/29/2006 between Nieman and Schaffer 21 E-mail Chain 11/29/2006 between Nieman and Misty 151 145 143 134 129 122 113 104 102 97 Page 94

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

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EXHIBITS Number 22 23 24 BayTSP Streaming Video Project Work Order 158-002 E-mail Chain 1/24/2007 between Ishikawa and Cooper 25 E-mail Chain 1/8/2007 between Ishikawa and Hallie 26 E-mail Chain 12/28/2006 between Nieman and Low 27 E-mail Chain 1/21/2007 between Espinosa and Ishikawa 28 E-mail Chain 1/21/2007 between Nieman and Ishikawa 29 30 31 Instant Messaging Transcript 2/2/2007 Instant Messaging Transcript 2/2/2007 E-mail Chain 2/15/2007 between Nieman and Hill 32 E-mail Chain 2/15/2007 between Cahan and Ishikawa 33 E-mail Chain 2/22/2007 between Nieman and Schaffer 34 E-mail Chain 1/31/2007 between Nieman and Hill 251 245 240 202 213 235 190 187 174 169 Page 153 158 162

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

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EXHIBITS Number 35 E-mail Chain 1/3/2007 between Nieman and Hallie 36 E-mail Chain 2/9/2007 between Nieman and Cahan 37 E-mail Chain 2/10/2007 between Gurney and Nieman, Solow, Morales and Hallie 38 E-mail Chain 3/13/2007 between Bell and Cruz and Nieman 39 E-mail Chain 3/17/2007 between Nieman and Ishikawa 40 E-mail Chain 3/19/2007 between Nieman and Dare 41 E-mail Chain 2/28/2007 between Tipton and Nieman 42 E-mail Chain 2/26/2007 between Solow and Nieman 43 E-mail Chain 2/12/2007 between Gillette and Nieman 44 45 Search Report E-mail Chain 2/1/2007 between Martin and Ishikawa, Morril, Simon and Hallie 46 47 Instant Message Transcript, 2/3/2007 E-mail from Nieman to Cooper, 3/15/2007 309 313 300 304 290 285 276 274 268 265 262 260 Page 254

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

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INSTRUCTED NOT TO ANSWER 10:58AM 10:58AM Page 66, Line 2 MR. KRAMER: Q. And what clip lengths

were given to you by other BayTSP clients for use as a standard by which fair use should be determined?

5:46PM 5:46PM

Page 303, Line 2 Q. Did you participate in a conversation

among the various lawyers?

5:47PM 5:47PM

Page 304, Line 3 Q. My question is whether you heard anything

during the break that was said by a lawyer other than your own?

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

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PALO ALTO, CALIFORNIA; WEDNESDAY, DECEMBER 16, 2009, 9:28 A.M. 8:35 9:28 THE VIDEOGRAPHER: Today's videotaped

deposition is taken on December 16th, 2009, at Wilson Sonsini, 650 Page Mill Road, Palo Alto, California 94304 in the matter of Viacom International and others and the Football Association Premier and others versus YouTube, Incorporated and others. The cases are 1:07CV02103

and 07CV3582 in the United States District Court for the Southern District of New York. Stuart Pettigrew. My name is

I represent David Feldman

Worldwide located at 600 Anton Boulevard, Suite 1100, in Costa Mesa, California. We're now

commencing at approximately 9:29 a.m. 9:28 Will all present please identify themselves beginning with the witness. 9:28 9:28 THE WITNESS: Courtney Nieman. Merissa

MS. COLEMAN-BISHOP:

Coleman-Bishop appearing on behalf of Courtney Nieman who's present. 9:29 MR. COX: behalf of Viacom. 9:29 MR. PELES: Gil Peles, Proskauer Rose on James Cox, Jenner & Block, on

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

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behalf of the Premier League, plaintiff. 9:29 BayTSP. 9:29 MR. HUSSAIN: counsel, BayTSP. 9:29 MR. VOLKMER: Bart Volkmer representing Osama Hussain, in-house MR. KELLY: Phil Kelly on behalf non-party

Google and YouTube from Wilson, Sonsini, Goodrich & Rosati. 9:29 MR. KRAMER: And I'm David Kramer

representing the defendants as well. 9:29 THE VIDEOGRAPHER: swear in the witness. 9:29 9:29 9:29 9:29 9:29 9:29 COURTNEY NIEMAN, having been first duly sworn, was examined and testified as follows: EXAMINATION THE VIDEOGRAPHER: MR. KRAMER: Q. Please begin. Ms. Neiman, have you ever Thank you. Please

had your deposition taken before? 9:29 9:29 A. Q. No. Just a couple things to keep in mind. You

had a chance to talk with your counsel about this in advance, but the oath that you just took that is as if you were testifying in court. that? Do you understand

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

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there, there was an explanation that says you do this this many times, you're done. 4:51 No. So did -- do I know BayTSP caused this? Do I know was this caused after or between the I do not. I -- I don't know why

13th and the 17th?

it came down, other than it must have crossed the terms of service line for YouTube. 4:51 MR. KRAMER: Q. Keep that one in front of

you for a second, Ms. Nieman. 4:51 Your message to Mr. Ishikawa on the second paragraph says, "Most of the support team at YouTube is out of town at a conference". 4:51 4:51 4:51 A. Q. A. Mm-hmm. How would you know that kind of thing? I would have called because I'm trying to

restore the account. 4:51 Q. So in the event that a Viacom account was

erroneously terminated, you would call to have it restored? 4:52 A. I would broaden that to say, in the event

that we find that there was no valid DMCA violation, BayTSP -- and I believe it is on their web page -says how you can challenge us and the process we will use to try to restore or rectify said takedown. 4:52 Q. This is a slightly different angle though.

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

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I'm interested in whether it was a routine occurrence for you to call YouTube about the termination of an account for Viacom that was erroneous. 4:52 4:52 MR. COX: Objection to form. No, I don't -- I don't

THE WITNESS:

remember making several or even many phone calls on Viacom's behalf to restore accounts or Paramount's behalf to restore accounts. But I would have done

so every time one was presented to me. 4:53 MR. KRAMER: Q. Did you call other

online services to have accounts restored that were erroneously terminated? 4:53 4:53 MR. COX: Same objection. I believe I did because, If

THE WITNESS:

again, if you can -- and look at the web page. you tell us, no, that was my content, and you verify, yes, that was my content, we would take whatever the service's means provided to us to restore your content to where it was. So in the

case of YouTube, if you yourself posted a video of your new car, and we took it down because somebody just goofed or it was an intentional act of malice on an unknown individual -- we don't care why it came down -- but if you came to BayTSP, said,

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

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"That's my car, that's my content, I want it back up there," then yes, we would do what we could to get it back online. 4:54 MR. KRAMER: Q. I'm actually interested

in this particular conversation and this particular incident. You called YouTube about the erroneous

termination of a Paramount account, right? 4:54 4:54 4:54 MR. COX: Objection to form. Yes. Q. And the account went

THE WITNESS: MR. KRAMER: right back up, right?

4:54 4:54

A. Q.

Yes. So YouTube was, again, very responsive to

your inquiry, correct? 4:54 A. Yes. But this is not a singular event. I

did this for people not from Paramount and not involved in this project. 4:54 Q. In your message you wrote, "I have DC

looking for any infringements sent to YouTube for user name Paraccount." 4:55 4:55 A. Q. What's that mean? That one I remember. That's not a

Data Control, DC.

Ah, so data control.

reference to a group of people in Washington, D.C.? 4:55 A. No. Data control is the team that, if you

will, manages, I believe, inside BayTSP that handles

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

faf4a10f-be1f-4ca5-853e-8414309c1120