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)

Page 1

UNITED STATES DISTRICT COURT FOR THE 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 NO. 07-CV-2203

VIDEOTAPED DEPOSITION OF SCOTT HURWITZ NEW YORK, NEW YORK WEDNESDAY, SEPTEMBER 10, 2008

Reported By: Jennifer Ocampo-Guzman JOB NO.: 15778

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

September 10, 2008 10:09 a.m.

Videotaped Deposition of SCOTT HURWITZ, held at the offices of Mayer Brown, 1675 Broadway, New York, New York, pursuant to subpoena, before Jennifer Ocampo-Guzman, a Real-Time Shorthand Reporter and Notary Public of the State of New York.

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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

FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: SHEARMAN & STERLING, LLP BY: JOHN GUELI, Esq. COLLEEN M. MERINGOLO, Esq. 599 Lexington Avenue New York, New York 10022-6069 [phone] [e-mail]

[e-mail]

FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: PROSKAUER ROSE, LLP BY: DANIEL P. GOLDBERGER, ESQ.

1585 Broadway New York, New York 10036-8299 212-969-3174 [e-mail]

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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

(Continued)

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.:

WILSON SONSINI GOODRICH & ROSATI BY: MICHAEL H. RUBIN, Esq.

650 Page Mill Road Palo Alto, California 94304-1050 650-849-3311 [e-mail]

MAYER BROWN BY: JASON KIRSCHNER, Esq.

1675 Broadway New York, New York 10019-5820 [phone] [e-mail]

-andBY: RICHARD BEN-VENISTE, ESQ.

[phone] [e-mail]

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

APPEARANCES (Continued):

ATTORNEY FOR THIRD-PARTY ICED MEDIA AND THE DEPONENT: DUNLOP & ASSOCIATES BY: VICTOR ANTONIO DUNLOP, Esq.

55 Washington Street, Suite 451 Brooklyn, New York 11201 718-403-9261 [e-mail]

ALSO PRESENT:

MANUEL ABREU, Videographer

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 6
1 10:08:21 10:08:49 10:08:53 10:08:55 10:08:58 10:09:00 10:09:03 10:09:05 10:09:08 10:09:08 10:09:11 10:09:13 10:09:16 10:09:17 10:09:20 10:09:23 10:09:25 10:09:28 10:09:28 10:09:28 10:09:31 10:09:31 10:09:34 10:09:34 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE VIDEOGRAPHER:

This is tape

number 1 of the videotape deposition of Scott Hurwitz in the matter of Viacom International, Inc., Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation and Black Entertainment Partners, LLC, versus YouTube, Inc., YouTube, LLC, and Google, Inc. This deposition is being held at 1675 Broadway, New York, New York, on September 10, 2008, at approximately 10:09 a.m. My name is Manuel Abreu, from the firm of David Feldman Worldwide, and I'm the legal video specialist. The court

reporter is Jennifer Ocampo-Guzman in association with David Feldman Worldwide. Will counsel please introduce themselves? MR. RUBIN: Michael Rubin of Wilson

Sonsini Goodrich & Rosati on behalf of the defendants and subpoena parties

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 7
1 10:09:37 10:09:38 10:09:40 10:09:41 10:09:44 10:09:47 10:09:48 10:09:52 10:09:53 10:09:53 10:09:53 10:09:57 10:09:57 10:10:00 10:10:02 10:10:03 10:10:04 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 10:10:14 10:10:14 24 25

Google and YouTube. MR. KIRSCHNER: Jason Kirschner

from Mayer Brown on behalf of the defendants and subpoena parties Google and YouTube. MR. GOLDBERGER: Dan Goldberger on

behalf of Proskauer Rose and the class. MS. MERINGOLO: Colleen Meringolo

on behalf of the plaintiffs, Viacom. MR. GUELI: John Gueli with

Shearman & Sterling on behalf of the Viacom plaintiffs. MR. DUNLOP: Victor Dunlop on

behalf of Dunlop & Associates for third-party ICED Media. THE VIDEOGRAPHER: Will the court

reporter please swear in the witness? S C O T T H U R W I T Z, called as a

witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. RUBIN: Q. Good morning, Mr. Hurwitz.

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 78
1 11:36:53 11:36:54 11:36:56 11:36:58 11:37:03 11:37:05 11:37:06 11:37:06 11:37:09 11:37:09 11:37:10 11:37:12 11:37:14 11:37:17 11:37:17 11:37:19 11:37:23 11:37:25 11:37:27 11:37:30 11:37:35 11:37:37 11:37:41 11:37:44 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Hurwitz Comedy Central? A. Q. A. Q. Yeah. With whom did you speak? I don't recall. Did you speak with someone at

Paramount named Christina? A. Q. name? A. Q. Tipton. And what did -- what was the Yes. Who is Christina, what's her last

substance of the conversation? A. No? Actually, I don't have the actual e-mail. "Our account has been shut down, can you help us get it reinstated." Q. A. And what was Christina's response? Probably gave me kevin@youtube to You have it right here; correct?

reach out to which is what I've done here. Q. Because as you had understood the

video that you posted to YouTube, the Comedy Central video that you had posted to YouTube

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 79
1 11:37:45 11:37:47 11:37:48 11:37:52 11:37:55 11:37:57 11:38:00 11:38:02 11:38:03 11:38:04 11:38:07 11:38:08 11:38:09 11:38:12 11:38:13 11:38:16 11:38:19 11:38:20 11:38:21 11:38:23 11:38:23 11:38:26 11:38:26 11:38:28 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Hurwitz was posted with authorization? A. Q. Can you repeat that question? The -- yes. The video that Comedy Central had issued the notice to YouTube about that you had posted, you had posted it with Comedy Central's authorization; is that right? A. Q. Yes. In fact, every video that you

posted to YouTube was posted with the authorization of the client? A. Q. Yes. So this was a mistake on behalf of

Comedy Central? A. Q. That's my understanding. And Christina at Paramount

confirmed that for you? A. Q. mistake? A. Central. Q. A. So what did Christina tell you? Probably gave me kevin@youtube. She said nothing about Comedy No. She did not confirm that it was a

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0

Page 80
1 11:38:32 11:38:38 11:38:41 11:38:45 11:38:47 11:38:48 11:38:49 11:38:51 11:38:51 11:38:52 11:38:54 11:38:55 11:38:55 11:39:00 11:39:02 11:39:05 11:39:08 11:39:09 11:39:09 11:39:14 11:39:18 11:39:23 11:39:25 11:39:27 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Hurwitz Q. And what did -- this was the sum

total of your conversation with YouTube? A. Yeah. MR. GUELI: YouTube? MR. RUBIN: MR. GUELI: Uh-huh. What is the sum total The question was with

of what you're referring to? MR. RUBIN: MR. GUELI: MR. RUBIN: A. Q. A. Q. Sure. Was your account restored? Yes. Were any videos other than the one This document. These e-mail chains? Yeah.

video referred to in this e-mail ever taken down from your account? A. Q. I don't know. Did you ever receive any e-mails

other than the one referenced on the bottom of the page bearing, ending Bates number 184 from YouTube notifying you that a video had been taken down from your account? A. I don't recall.

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

8c5400f8-be45-46ab-a746-2dc0db2d2cf0