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)

MEGAN WAHTERA - HIGHLY CONFIDENTIAL
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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 MEGAN WAHTERA SAN FRANCISCO, CALIFORNIA FRIDAY, DECEMBER 4, 2009 JOB NO. 18262 No. 07-CV-3582 No. 07-CV-2103

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA

SAN FRANCISCO, CA DECEMBER 4, 2009 10:27 A.M.

DECEMBER 4, 2009

HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF MEGAN WAHTERA, at WILSON SONSINI GOODRICH & ROSATI, 1 Market Plaza, 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]

9aea82e1-ef3a-4f87-901a-cc624f2af742

MEGAN WAHTERA - HIGHLY CONFIDENTIAL
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MEGAN WAHTERA

SAN FRANCISCO, CA

DECEMBER 4, 2009

A P P E A R A N C E S: FOR THE PLAINTIFFS, VIACOM INTERNATIONAL, INC., and the WITNESS: JENNER & BLOCK, LLP By: SCOTT B. WILKENS, ESQ. 1099 New York Avenue, NW Suite 900 Washington, DC 20001 T.202.639.6000 F.202.661.4832 [e-mail] and PARAMOUNT PICTURES MOTION PICTURE GROUP INTERACTIVE MARKETING By: PAUL KOENIG, ESQ. 5555 Melrose Avenue Hollywood, California 90038-3197 T.323.956.5882 F.323.862.2875 [e-mail] FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC.: WILSON, SONSINI, GOODRICH & ROSATI By: MICHAEL H. RUBIN, ESQ. CAROLINE WILSON, ESQ. 650 Page Mill Road Palo Alto, California 94304-1050 T.650.493.9300 F.650.493.6811 [e-mail] [e-mail] Also Present: JOSEPH SKORMAN, Videographer

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA

SAN FRANCISCO, CA

DECEMBER 4, 2009

SAN FRANCISCO, CALIFORNIA FRIDAY, DECEMBER 4, 2009; 10:27 A.M.

THE VIDEOGRAPHER:

Today's videotaped

deposition of Megan Wahtera -THE WITNESS: Correct. -- is taken on

THE VIDEOGRAPHER:

December 4th, 2009, at 1 Market Plaza, Spear Tower, Suite 3 -- I'm sorry -- 3000 -- 3300, San Francisco, California, in the matter of Viacom International, Inc., et al., versus YouTube, Inc., et al., and also the Football Association Premier, et al., versus YouTube, Inc., et al. The Case Number is 07-CV-2103

and for the second it is 07-CV-3582, in the court of the Southern District of New York. My name is Joseph Skorman. I represent

David Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, Costa Mesa, California. We are now commencing at 10:27 a.m. Will all present please identify themselves, beginning with the witness. THE WITNESS: MR. WILKENS: Megan Wahtera. Scott Wilkens, Jenner and

Block, LLP, for the Viacom plaintiffs and the

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA witness.

SAN FRANCISCO, CA

DECEMBER 4, 2009

MR. KOENIG:

Paul Koenig, Paramount

Pictures, for the Viacom plaintiffs and the witness. MR. RUBIN: Michael Rubin, Wilson,

Sonsini, Goodrich & Rosati, for defendants YouTube and Google. MS. WILSON: Caroline Wilson, also FROM

Wilson, Sonsini, Goodrich & Rosati, for the defendants. THE VIDEOGRAPHER: Thank you.

Would the court reporter please swear in the witness. THE REPORTER: hand, 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: I do. Will you raise your right

MEGAN WAHTERA, having been sworn as a witness, testified as follows:

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA BY MR. RUBIN: Q.

SAN FRANCISCO, CA

DECEMBER 4, 2009

But in fact you are sure, based on what

you just said, that you didn't tell YouTube every time; isn't that right? A. Are we talking about a great pick clip

specifically, or. . . . Q. You just testified that you didn't tell

YouTube at the time you uploaded that video, didn't you? A. Q. No, I told them a few days later. All right. Why did you tell them a few

days later? A. From what I recall, the clip was a

failure, so we were trying to get their help to garner views and keep it up. Q. Do you have a -- have you ever registered

for a gmail.com account? A. Q. Not that I can recall. But you do recall registering for the

Yahoo e-mail address? A. Q. A. Q. I recall, yes, using Yahoo for that one. For that one? Yes. For the "Heartbreak Kid" clip --

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA A. Q. A. Q. A. Q.

SAN FRANCISCO, CA

DECEMBER 4, 2009

That's it. Just videos for "The Heartbreak Kid"? Oh, no, videos. Videos related to what? Our films. What types of videos related to Paramount

Picture films? A. Lots of different types of videos.

Trailers, clips, EPK materials, you name it. Q. A. Q. What's an "EPK"? An electronic press kit. So the Isolon drive houses all manner of

promotional materials? A. No, not necessarily. We have a video

encoder, so the person who digitized our videos, it's his -- it's his folder. Q. A. Q. A. Q. A. Q. encoded? Who is your video encoder? We don't have one currently, actually. Who was your video encoder? Les Hidvegi. Les Hidvegi? Yes. Where does he store the videos that he

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA A. Q. A.

SAN FRANCISCO, CA

DECEMBER 4, 2009

There is no origin.

I made it up.

Why did you make up that name? I wanted this piece of video to appear to

the end user as something that was not from the studio. Q. A. Why? This particular film and clips in general

were not doing very well, if I recall correctly, and so I -- we took a different -- we experimented with our approach in getting success. Q. You wanted this film not to appear as if

it was from the studio to whom? A. Q. A. Q. To the people watching it. And to YouTube; right? No. That was never my intent.

Why did you register a unique e-mail

address in connection with the upload of this video? A. Because a lot of people who watch clips,

like an audience -- and just general audiences or, I don't know, specific audiences -- it's very easy for them to find out through technical ways who uploaded the clip, so I didn't want it to be from Paramount's e-mail. Q. How is it possible for a user of the

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA

SAN FRANCISCO, CA

DECEMBER 4, 2009

creating the Yahoo account -A. Q. Uh-huh. -- because you didn't want the video to be

associated with Paramount; isn't that right? A. Q. That is correct. You didn't want anyone to be able to tell

that the video was Paramount content; right? MR. WILKENS: THE WITNESS: Objection to the form. I didn't want the people

viewing the content to be able to tell that it was from Paramount, the -- the audience that we were looking -BY MR. RUBIN: Q. A. Q. You didn't --- to get. You didn't want the audience to be able to

tell that Paramount had uploaded the content to YouTube? A. Q. Correct. You didn't want anyone to know that the

content -- that Paramount had uploaded the content to YouTube; right? A. Q. I was mostly concerned with the audience. But you were also interested in making

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA

SAN FRANCISCO, CA

DECEMBER 4, 2009

sure nobody knew; right? A. Q. No, that wasn't my objective. You went to great lengths to hide the fact

that Paramount wasn't the uploader of that content; right? A. cool. Q. correct? A. Q. Correct. And you created a brand new YouTube You created a new Yahoo e-mail account; I did, so that audience would see it as

account; right? A. Q. A. Q. Correct. From separate locations; correct? (Nods head.) And you uploaded the account from off lot

at Paramount; right? A. Q. That is correct. All in an effort to obscure the source of

the content; right? A. Q. A. Q. That is correct. Was that video successful? If I recall correctly, it was not. What do you recall about that video?

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA A. Q.

SAN FRANCISCO, CA

DECEMBER 4, 2009

I don't know. You've never -- you've never investigated

whether Paramount owned a copyright to a film? A. No, it's not part of my job

responsibility. Q. Have you ever delegated that to someone

else and had them return results to you? A. Not that I'm aware of. MR. RUBIN: 16. (Wahtera Deposition Exhibit Number 16 was marked for identification.) THE WITNESS: BY MR. RUBIN: Q. Miss Wahtera, Exhibit 16 is a document Thank you. I'd like to introduce Wahtera

produced by Viacom in this action, bearing Bates number VIA12603576. Do you recognize this document? A. Q. I recognize it. You sent this e-mail to Joanna Ging at

YouTube on September 28, 2007; right? A. Q. It appears so, yes. And that was the same date of the e-mail

we were looking at in Exhibit 15, wasn't it?

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA A. Q. Okay.

SAN FRANCISCO, CA Yes.

DECEMBER 4, 2009

And you'd called Miss Ging prior to

sending her this e-mail, didn't you? A. Q. It appears that I did. You were contacting Miss Ging to bring the

appropriate -- pardon me. You were contacting Miss Ging to bring the inappropriate clip notice on "The Heartbreak Kid" clip we've been discussing to her attention; right? A. Q. Yes. That was the purpose of your contacting

her; isn't it? A. Q. Yes. There was no other reason why you were

contacting her, was there? A. Q. to you? A. (Reading:) Not that I'm aware of. And what was the -- Miss Ging's response

"Hi Megan. "I just left you a voicemail -- VM -- but looks like the clip is copyrighted material. "Please let me know if this is the case

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA

SAN FRANCISCO, CA

DECEMBER 4, 2009

and I can escalate to the content team for takedown. Q. A. Q. A. Q. A. What was Miss Ging saying to you? She was saying it was copyrighted. And what was her proposed solution? A takedown. What was your response to Miss Ging? I essentially told her, no, that we didn't

want it removed. Q. A. That's not what you said here, is it? I said: We will call you

"It is not copyrighted. momentarily. Q.

Please do not remove."

Was that "Heartbreak Kid" clip

copyrighted? MR. WILKENS: THE WITNESS: don't know. BY MR. RUBIN: Q. What was the basis of your representation Objection to the form. I don't know, to be fair. I

of the copyright status of that "Heartbreak Kid" clip to Miss Ging? A. Joanna was going to escalate having it

removed, and we were telling them that we didn't

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

9aea82e1-ef3a-4f87-901a-cc624f2af742

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MEGAN WAHTERA want it removed. Q. A. Q. statement. A.

SAN FRANCISCO, CA

DECEMBER 4, 2009

I didn't ask you why you said it. Oh. I asked you what the basis was for your

I don't know, because I don't remember --

I don't remember what was in my -- what was going on when I wrote this. Q. You didn't know, one way or the other, at

the time you sent this e-mail, whether "The Heartbreak Kid" clip was copyrighted, did you? MR. WILKENS: THE WITNESS: BY MR. RUBIN: Q. And you didn't do any investigation as to Objection to the form. No.

the copyright status of the "The Heartbreak Kid" movie or that clip prior to sending this e-mail to Miss Ging, did you? A. Q. A. Q. I did not. In fact -I was there more as -And in fact, you've never, to your

knowledge, ever done such investigation for any film; right?

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

9aea82e1-ef3a-4f87-901a-cc624f2af742