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. 1:07CV02103 ) 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. ) ___________________________________)

DEPOSITION OF MICAH SCHAFFER SAN FRANCISCO, CALIFORNIA WEDNESDAY, JULY 23, 2008

REPORTED BY: YVONNE FENNELLY, CRP, CSR NO. 5495 JOB NO. 15376

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

836718e6-2f60-4c1e-b203-47969ea27540

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JULY 23, 2008 10:00 a.m.

VIDEOTAPED DEPOSITION OF MICAH SCHAFFER, held at the offices of SHEARMAN & STERLING, 525 Market Street, San Francisco, California, pursuant to notice, before YVONNE FENNELLY, CRP, CSR License No. 5495.

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

836718e6-2f60-4c1e-b203-47969ea27540

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A P P E A R A N C E S FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: PROSKAUER ROSE, LLP By: HAL S. SHAFTEL, Attorney at Law 1585 Broadway New York, California 90067-3206 [phone] [phone] [e-mail] FOR THE PLAINTIFF VIACOM INTERNATIONAL, INC.: JENNER & BLOCK, LLP By: JAMES COX, Attorney at Law 1099 New York Avenue, NW Suite 900 Washington, DC 20001 [phone] [phone] [e-mail]

FOR THE CLASS PLAINTIFFS:
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LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP By: DAVID S. STELLINGS, Attorney at Law 780 Third Avenue 48th Floor New York, New York 10017-2024 [phone] [phone] [e-mail]

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

836718e6-2f60-4c1e-b203-47969ea27540

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APPEARANCES (Continued):

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN, LLP BY: ANDREW H. SCHAPIRO, Attorney at Law DAVID McGILL, Attorney at Law 1675 Broadway New York, New York 10019 [phone] [e-mail]

FOR GOOGLE, INC.:
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GOOGLE, INC. BY: ADAM L. BAREA, Litigation Counsel 1600 Amphitheatre Parkway Mountain View, California 94043 [phone] [phone] [e-mail]

ALSO PRESENT: Kelly Truelove, consultant; Lou Meadows, Videographer --oOo--

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

836718e6-2f60-4c1e-b203-47969ea27540

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THE VIDEOGRAPHER:

On the record.

Today's videotaped deposition of Micah Schaffer is taken on July 23rd, 2008, at Shearman & Sterling, 525 Market Street, 15th Floor in San Francisco, California, in the matter of Viacom International, Inc. versus YouTube Inc., et al., Case No. 107 CV 02103; and the Football Association Premier League, et al. versus YouTube Inc., et al, Case No. 07 CV 3582 in the United States District Court for the Southern District of New York. My name is Lou Meadows, and I represent Dave Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, in Costa Mesa, California. We're now commencing at 10:12 a.m. Counsel, would you please identify yourselves and state whom you represent for the record? MR. SHAFTEL: Hal Shaftel, from the Proskauer

Rose firm on behalf of the class plaintiffs in the Premier League action. MR. COX: James Cox, from Jenner & Block on

behalf of Viacom International. MR. STELLINGS: David Stellings, Lieff,

Cabraser Heimann & Bernstein, for the class plaintiffs. MR. SCHAPIRO: Andrew Schapiro, Mayer Brown,

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

836718e6-2f60-4c1e-b203-47969ea27540

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for the defendants. MR. McGILL: for the defendants. MR. BAREA: Adam Barea, Google, Inc. Thank you. David McGill, Mayer Brown, also

THE VIDEOGRAPHER:

If there are no stipulations, the court reporter may now administer the oath. MICAH SCHAFFER, having been duly sworn, testified as follows: EXAMINATION BY MR. SHAFTEL: Q. Good morning, again, Mr. Schaffer. My name is

Hal Shaftel; I'll be asking you questions during the course of the day. Have you been deposed before? A. Q. No. A few basic ground rules that might be worthy

of highlighting. If I ask any questions and you're not certain what I'm asking, let me know; I'll do my best to reformulate or clarify somehow. We should avoid speaking over each other so Yvonne can transcribe clearly and cleanly what each of us has to say.

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

836718e6-2f60-4c1e-b203-47969ea27540

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about sending mixed messages in that way and sort of giving sort of fair notice to users about, you know, how to tell if something is potentially going to be unauthorized and whether or not they should upload it. And so what we worked out, I believe, so kind of our goal here -- and again, I don't want to get into, you know, conversations with attorneys. I think the

goal that I'm discussing in here is, well, if the content owners agree that the notices that they're sending us are just removal requests, that we're voluntarily going to do under our terms of use, outside of the copyright terms of use, but just because our terms of use give us the discretion to remove our content when we think it's appropriate, but that they weren't going to be doing it as a formal DMCA notice, then we thought it restored some balance there; that users weren't going to be penalized or accounts weren't going to be terminated just because they had no way of knowing that Prince was the one UMG artist who didn't want their content up, even though all the other content is being permitted by UMG, so that was kind of the idea was, let's not penalize in the same way. Q. Is it your testimony that the commercial

agreements with CYC partners provides notice that their

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

836718e6-2f60-4c1e-b203-47969ea27540

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disclosures, the requests for removal under CYC do not trigger the repeat infringer policy? provision in those agreements? A. I'm not aware of -- I don't have firsthand Is there a

knowledge of those agreements and certainly not outside of discussions with attorneys. And again, I'm not

testifying to the end implementation of it and how it worked; I am simply explaining the context of this discussion and the principles at work. I believe some of those -- I believe that essential workflow is what was ultimately codified in our content ID program, and I would presume that that was done, you know, in partnership and in conjunction with the content owners who used that program. But,

again, that's essentially the limits of my knowledge on the subject. Q. You testified that attached to this e-mail is

the generic notice that was sent to the uploader describing the repeat infringer policy; is that right? Is this a form notice that Mr. Liu attaches? A. Yes, this appears to be what I would imagine I know -- I believe this

was being sent at the time.

e-mail has evolved over time as much of our messaging has.

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

836718e6-2f60-4c1e-b203-47969ea27540

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Q.

This doesn't say that three incidents will It says "repeat

result in deletion of your account. incidents"; do you see that? A. Q. Sure. Yes, I see it now.

Where is it disclosed to -- let's take this

over time. Are you aware at any point in time when YouTube publicized to uploaders as part of the notices they would get when their content was removed on copyright grounds, that there was a three repeat policy? A. Q. A. A three strikes policy? Yes. I know that changed over time. I don't recall

specifically to this messaging in this particular form e-mail. Q. Are you aware of any messaging where YouTube

publicized to uploaders that you have three strikes or your account is deleted? A. I think at one point our terms of use may have I'm not sure if it was

made reference to three strikes. in a copyright context or not. Q. A. Q. Does it today? I'd have to look it up.

I don't believe so.

And when strikes are allocated to a user for

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

836718e6-2f60-4c1e-b203-47969ea27540

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copyright reasons, what does the strike -- what is the strike imposed against? user -A. Q. E-mail address. So if my account is closed at a given e-mail Is it a user ID? Is it a

address for repeat infringer reasons, what, if anything, blocks me from reopening an account at another e-mail address? A. I think that would probably be possible to do

for most people. Q. You say "probably possible." Is there anything

blocking me from doing that? A. Well, you would have to know to create a new I

e-mail address and have the ability to do that.

imagine that's fairly -- yeah, I don't know how many people would figure that out, but one could. Q. Are you aware of any discussions at YouTube

about allocating the strikes in another fashion other than to an e-mail address, like an IP address? A. Well, e-mail addresses are really the only

unique identifier that I'm aware of that's associated with a YouTube account. Certainly I imagine someone I'm sure there So I would think

that is indicated provided by the user. are some other kinds of IDs we assign.

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

836718e6-2f60-4c1e-b203-47969ea27540