Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 319

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 81, # 2 Exhibit 82, # 3 Exhibit 83, # 4 Exhibit 84, # 5 Exhibit 85, # 6 Exhibit 86, # 7 Exhibit 87, # 8 Exhibit 88, # 9 Exhibit 89, # 10 Exhibit 90, # 11 Exhibit 91, # 12 Exhibit 92, # 13 Exhibit 93)(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 WARREN SOLOW NEW YORK, NEW YORK DECEMBER 18TH, 2009 JOB NO. 18304

DAVID FELDMAN WORLDWIDE, INC.
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VIDEOTAPED DEPOSITION OF WARREN SOLOW, held at the offices of Wilson, Sonsini, Goodrich & Rosati, PC, 1301 Avenue of the Americas New York, New York, pursuant to notice, before Maureen Ratto, Registered Professional Reporter and Notary Public of the State of New York on December 18, 2009, at 10:10 a.m.

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 PLAINTIFFS: JENNER & BLOCK, LLP BY: SUSAN J. KOHLMANN, ESQ. 919 Third Avenue, New York, NY 10022 [phone] [e-mail]

FOR THE DEFENDANTS: WILSON, SONSINI, GOODRICH & ROSATI BY: MICHAEL H. RUBIN, ESQ.

650 Page Mill Road, Palo Alto, CA 94304 650-849-3311 [e-mail]

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

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VIDEOGRAPHER:

This is DVD No. 1

of the video deposition of Warren Solow in the matter of Viacom International Inc., et al, versus The Football Association Premier League Limited, et al versus YouTube, Inc., et al. This deposition is being held at 1301 Avenue of the Americas, New York, New York on December 18, 2009 at approximately 9:51 a.m. My name is Manuel Abreu from the firm of David Feldman Worldwide and I am the legal video specialist. The

court reporter is Maureen Ratto, in association with David Feldman Worldwide. Will counsel please introduce themselves? MR. RUBIN: Michael Rubin from

Wilson, Sonsini, Goodrich & Rosati for defendants YouTube and Google. MS. KOHLMANN: Susan Kohlmann,

Jenner & Block for the Viacom plaintiffs. * * *

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W A R R E N

S O L O W, having been

first duly sworn according to law by the Officer, testifies as follows: DIRECT EXAMINATION BY MR. RUBIN: Q. A. Q. A. Q. Good morning, Mr. Solow. Good morning. How are you today? I'm well. Thank you.

Do you understand you're being

deposed today in connection with a lawsuit by Viacom Incorporated against Google and YouTube? A. Q. Yes. I want to go over a few ground First,

rules for today's deposition.

if you need to take a break, let me know and we'll do so. In fact, if anyone in this room needs to take a break let me know and we'll do so, myself included. However, the only request I'll make is that if I'm in the middle of a question, I ask that you finish the answer prior to -prior to us taking a break? Also, please answer my questions

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We're back on the record. Q. Mr. Solow, do you have an

understanding of when Viacom began to instruct BayTSP to start accumulating clips in connection with the mass takedown? MS. KOHLMANN: foundation. A. I don't think that there was Objection. Lacks

ever an instruction that said begin accumulating clips. Q. What was the first instruction

that Viacom issued to BayTSP in connection with the mass takedown? A. In practical terms it was please

monitor YouTube to identify infringing clips. Q. A. When did that instruction occur? I believe BayTSP was always

working on strengthening their ability to identify clips and their -- their tools were under development and much of the fall was, I would characterize, as work shopping process and -- and how the project will take off. In terms

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of -- of -- of focus on really identifying and being comprehensive and -- and penetrating the -- the YouTube library, I would say that happened in December, sometime. MR. RUBIN: I'd like to

introduce Exhibit 4. (Exhibit 4 is received and marked for identification.) Q. Mr. Solow, Exhibit 4 is an

exhibit that BayTSP produced in response to a YouTube subpoena bearing Bates number BAYTSP 004289493 through '97. A. Q. before? A. Q. before? A. Q. Sometime over the last 48 hours. If you would turn to the first This I believe so. When did you see this document Do you recognize this document? Yes. Have you seen this document

page of the document, please?

document describes a project entitled YouTube Video Streaming Project. Do

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A.

I could not follow that That was very long. I think

question.

I need some help on that question. Q. Didn't Viacom send a DMCA

takedown notice for 100,000 plus clips to YouTube on February 2nd, 2007? A. Q. Yes. Had Viacom identified a number

of those clips on a rolling basis starting in December of 2006? MS. KOHLMANN: can answer. A. Q. Yes. Couldn't Viacom have issued a Objection. You

DMCA takedown notice for the clips that it had identified at any point prior to February 2nd, 2007? A. Yes. MS. KOHLMANN: THE WITNESS: MS. KOHLMANN: A. Q. Yes. What was the basis for waiting Objection. I'm sorry. Go ahead.

until February 2nd, 2007 to issue those DMCA takedown notices?

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A.

The intense desire to finalize

an agreement with Google to receive compensation for the exploitations of our content on -- on YouTube. Q. Did you believe you were being

harmed during that period of time? MS. KOHLMANN: A. Objection.

Viacom believed that there was

harm to not controlling the distribution of its content. Q. A. Q. That wasn't my question. That was my answer. Let me ask it again. I mean -Did Viacom

believe during the pendency of the December to -- December 19th, 18th, 2006 to February 2nd, 2007 period of time that it was being harmed by the presence of its content on the YouTube service? MS. KOHLMANN: and answered. A. Q. Yes. And at any point in time during Objection. Asked

that period of time it could have asked YouTube to remove its content, right?

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if we will go with the 30 seconds or the minute, but that number will assist in the decision making. right? MS. KOHLMANN: Objection. You can Isn't that

Document speaks for itself. answer. A. Q. Yes.

That is what it says here.

As of December 18th, 2006 was

Viacom following a takedown protocol such that taking down all clips 30 minutes or longer would be a change in the protocols criteria? A. I have no recollection of a 30

minute metric. Q. Do you have a recollection of a

five minute metric ever being in place? A. No. I think what was -- what

was happening during this time period was that we were still -- Viacom was still wrapping its arms around what the characteristics were of a typical infringing clip and that with -- with each day we were learning more about the nature of the infringement on

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the -- on the YouTube service. Q. If that were the case, wouldn't

Viacom continually strengthen its protocol and lower the threshold for identification of clips? MS. KOHLMANN: form. A. You can answer. Yes. That was the case. It Objection as to

wasn't -- it's not an if. case.

That was the

There is another component to

the strengthening that you have to take into account and that is that as you strengthen, and by strengthen I -- I -well, I won't assume. I'm not sure Can

what you mean by strengthen. you -- can you clarify? Q.

If it's your claim that Viacom

modulated its protocol for the location of clips on the YouTube service because it was only at this stage in time that it was becoming aware of clips on that service, wouldn't it go to follow that as it learned more information it would implement protocols that would result in more clips being taken down or

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marked for takedown, not fewer? MS. KOHLMANN: form. A. Objection as to

Misstates the record. Right. At this date, in

December, Viacom was aware that there were clips and for at least a few months that there were clips on YouTube but the -- the nature of the clips was becoming more and more apparent as a deeper dive -- there's a difference between hey, I know that there are clips up there, you know, I've done an ad hoc search and the information that you'll have after you've looked at thousands, right? You know more after

a thousand than you do after one and you know more after 10,000 than you do after a thousand. So yes, with time

and -- and understanding of the -- of the nature and characteristics of the infringements the time period for the parameters would be strengthened as you said but the -- the countervailing concern is that as you strengthen those -- those parameters you also have

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to be careful and mindful of your Q and A process to make sure that -- that the clips are -- are valid takedowns. For example, if -- if you're looking for a whole episode, your QC might not nearly be as -- as robust as it would be if your metric is find your content at 30 seconds. A -- a whole And easier

episode is a whole episode.

to identify than a 30 second clip that is infringing. Q. Indeed, Mr. Solow, we saw in

Exhibit 7 Michelena Hallie's e-mail to Mr. Fricklas and Mr. Cahan that BayTSP in December of 2006 had a roughly 7 to 14 percent hit rate for actual alleged infringements. Isn't that right? Objection.

MS. KOHLMANN:

Document speaks for itself. A. All I see on the face of the

document is 50 to 100,000 and a 700,000 number. So I don't -- I can't -- no, I

don't know. Q. Well, based on those numbers I

can represent it's 7 to 14 percent.

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MS. KOHLMANN: It's okay. THE WITNESS: A. Yes. Sorry. Here.

This appears to be a list

of assets. Q. And the purpose of sending this

list was to enable BayTSP to find additional alleged infringements on the YouTube service. Isn't that right? Objection as to

MS. KOHLMANN: form. A.

It was a progression to -- to

continue the growth of the project. Q. To increase the number of clips

that could be included in the ultimate takedown that was effected on February 2nd, 2007, right? MS. KOHLMANN: A. Objection.

To be more comprehensive in the

identification of our content on the YouTube service. Q. And identify more clips that

could be included in the takedown that was effected on February 2nd, 2007, right? MS. KOHLMANN: Objection. You

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can answer. A. No. To identify as many --

our -- our goal, our ultimate goal here is to identify our content and we are taking steps to do that in a more comprehensive fashion. Q. The ultimate goal from the

outset was to identify your content, is that your testimony today? A. Q. Yes. And from the outset, Viacom

provided the information BayTSP would need to accomplish that, is that right? MS. KOHLMANN: form. A. please? Q. From the outset of the project Could you repeat that question, Objection as to

Viacom provided BayTSP with the information they would need to accomplish your goal? A. Yes. It was -- it was Viacom's

intent to provide the tools that our vendor would need to accomplish the task that they had been hired to

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MS. KOHLMANN: A.

Same objection.

I don't understand the question.

In what time period or when are we talking? Q. A. In the fall of 2006? I don't have specific

recollection of that. Q. Do you have an understanding

that in the December 19th, 2006 to February 2nd, 2007 time period Viacom instructed BayTSP to return to those clips that had been passed on, under the previous protocols, to determine if any of those clips should be taken down pursuant to the newly established protocols? MS. KOHLMANN: form. A. You can answer. Yes, as we developed additional Objection as to

information and understanding and training, we were more confident with going with a tighter protocol and we instructed them to go back to their -their previous work and -- and reevaluate it, leveraging the

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information that they had gleaned in the ensuing time. Q. What information had been

gleaned in the ensuing time was leveraged other than a shortening of clip length instruction provided by Viacom? MS. KOHLMANN: form. A. You can answer. Practical experi- -- the Objection as to

practical experience of their employees, continuing interaction with us about -- about the project, their employees' use of their tool. There

were plenty of -- there was plenty of material -- material experience that's gleaned as a project matures. Q. And that was the reason Viacom

chose to change the rule for past identifications that they had been aware of from the preexisting protocols to the protocol that was in place for the takedown that ultimately occurred on February 2nd, 2007? MS. KOHLMANN: Objection as to

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and answered. A. In context to the number of

takedowns, not many. Q. In context to the number of

videos of individuals that were taken off of the service without any right, it was a significant number, right? MS. KOHLMANN: form. A. Comparing the 103,000 number to Objection to

the number of -- of detected errors, I think it's a small number, significant to each individual affected but mathematically a very small number. Q. Viacom's -- Viacom is serious

about the fact that it made those errors presumably? A. Absolutely. MS. KOHLMANN: form. You've got to give me a chance. Q. In fact, those errors led to a Objection as to

modification in Viacom's process, didn't it? What could be approved to

be taken down and what could not be you

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I also act as the copyright administrator, serving a variety of functions in that regard. those are the highlights. Q. Does your job in anyway involve I would say

interacting with BayTSP? A. Q. Yes. Do you have supervisory or

management responsibility with respect to Viacom's relationship with BayTSP? MS. KOHLMANN: form. A. Q. A. Q. You can answer. I have at times. Do you today? Yes, to some extent. When did you begin to have Objection as to

supervisory or management responsibility with respect to Viacom's relationship with BayTSP? A. I believe that officially began

in February of 2007. Q. Has there been a period of time

between February of 2007 and the present during which you did not have management or supervisory

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form. A.

You can answer. If we're speaking of the time

period of March, 2007, I believe that that was not the case because that project was winding down. Q. A. Which project was winding down? The project that included the

monitoring of the four sites and the P2P networks. Q. down? A. We were reevaluating Bay's Why was that project winding

ability to -- to scale to the point of handling the four sites, as we developed a more granular understanding of the scale of the infringing content that we were -- conduct that we were identifying on YouTube, Bay was having a -- there was the perception that Bay was having issues managing those as one project, which is the reason why there is a Project 2 on that sheet and why you see YouTube in both columns. Q. And Project 1 what ultimately

put into abeyance because of the

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

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