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-2203 ) 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 CHAD HURLEY SAN FRANCISCO, CALIFORNIA WEDNESDAY, APRIL 22, 2009 BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CLR JOB NO. 16789

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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APRIL 22, 2009 9:08 a.m.

VIDEOTAPED DEPOSITION OF CHAD HURLEY, held at the offices of SHEARMAN & STERLING, 525 Market Street, San Francisco, California, pursuant to notice, before ANDREA M. IGNACIO HOWARD, CLR, CCRR, RPR, CSR License No. 9830.

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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

FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: JENNER & BLOCK, LLP By: SCOTT WILKENS, Esq.

1099 New York Avenue, NW, Suite 900 Washington, D.C. 20001 [phone] [e-mail]

FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP By: JOHN C. BROWNE, Esq.

1285 Avenue Of The Americas New York, New York 10019 [phone] [e-mail]

FOR THE PLAINTIFFS VIACOM INTERNATIONAL INC.: SHEARMAN & STERLING LLP By: STUART J. BASKIN, Esq.

599 Lexington Avenue New York, New York 10022-6069 [phone] [e-mail]

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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A P P E A R A N C E S

(Continued.)

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN, LLP By: ANDREW H. SCHAPIRO, Esq. BRIAN WILLEN, Esq. 1675 Broadway New York, New York 10019-5820 [phone] [e-mail]

ALSO PRESENT: GOOGLE By: ADAM L. BAREA, Litigation Counsel

1600 Amphitheater Parkway Mountain View, California 94043 [phone] [e-mail]

KEN REESER, Videographer.

---oOo---

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD SAN FRANCISCO, CALIFORNIA WEDNESDAY, APRIL 22, 2009, 9:08 A.M.

THE VIDEOGRAPHER:

Good morning.

Today's videotaped deposition of Chad Hurley is taken on April 22nd, 2009, at 525 Market Street, 15th Floor, San Francisco, California. In the matter of Viacom International, Incorporated, et al., and The Football Association Premier League Limited, et al., vs. YouTube, Incorporated. Case Nos. 07-CV-2203 and 07-CV-3582. In the

U.S. District Court, for the Southern District of New York. My name is Ken Reeser. I represent David

Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, Costa Mesa, California. We are now commencing at 9:08 a.m. Will all present please identify themselves, beginning with the witness. THE WITNESS: MR. BROWNE: John Browne. Grossman. I'm Chad Hurley. Good -- good morning. This is

I'm from Bernstein, Litowitz, Berger &

I represent the plaintiffs in the class

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD action, including the lead plaintiffs, The English Premier League. MR. SCHAPIRO: Andrew Schapiro from Mayer

Brown for the defendants. MR. WILLEN: Brian Willen from Mayer Brown,

also for the defendants. MR. BAREA: MR. WILKENS: for Viacom. MR. BASKIN: Sterling for Viacom. THE VIDEOGRAPHER: Thank you. And Stuart Baskin of Shearman & Adam Barea, Google, Inc. Scott Wilkens, Jenner & Block,

The court reporter may please swear in the witness. CHAD HURLEY, having been sworn as a witness, testified as follows:

EXAMINATION BY MR. BROWNE MR. BROWNE: A Q A Q Good morning. Have you ever been deposed before? No; this is the first time. Okay. But you've given testimony under oath Q. Good morning, Mr. Hurley.

before; is that right?

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD is that right? A Well, you know, I sense, again, a level of

sarcasm with, you know, what I was stating there, and -- but then, you know, I say, "No, not really." So I -- I -- I don't really know what was -- what came of it. Q Did you, in fact, disagree with Mr. Karim and

Mr. Chen on this topic? MR. SCHAPIRO: THE WITNESS: Objection; what topic? Yeah. What was -- what topic

do you mean in terms -MR. BROWNE: Q. Well, specifically, for

starters, that Karim and Steve said that they agree that YouTube should ease up on its strict policies. A You know, I don't even remember what our Again, we were trying to figure this

policies were. out.

We -- we didn't know if, you know, something

that was professional looking in nature was up there with authorization. Q Did you have reason to believe that at this

time that news organizations were uploading their content to YouTube? A No, I can't remember at the time. I think

with -- with some of this material as well there's,

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD you know, in the next -- following sentence, I said, "No, really." I mean, but I don't think I was taking

myself seriously. Q Right. And you say, "No, really I guess we'll just see what happens"; right? A Q A of what? Q A That's what it looks like I wrote, yeah. What did happen? Be -- because of what? What happened because This clip? What?

Because of this e-mail? Did --

I -- I don't know what happened to this clip.

I don't know what this -- this clip is. Q Now, Mr. Karim writes there that Mr. Chen

agrees with him that they should ease up on their strict policies for now; do you see that? A Q Yes. Why -- why ease up for now? Do you have an

understanding of what he meant by that? MR. SCHAPIRO: text. THE WITNESS: referring to. were. I -- I don't know what he was Objection; omits part of the

I don't remember what our policies

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD Q I'm just directing your attention to the top You write there, "Let's keep We can become stricter over

of Levine Exhibit 22.

short news clips for now.

time, just overnight"; do you see that? MR. SCHAPIRO: that. MR BROWNE: Q A Q Oh, I'm sorry. You're right. Objection; he didn't write

Mr. Karim wrote that to you; do you see that? Yeah, yeah, I do. I see that.

Now, did you share Mr. Karim's view at this

time that -- that -- that YouTube could become stricter over time, but just not overnight? MR. SCHAPIRO: THE WITNESS: Objection; assumes facts. Yeah, again, I don't -- I don't I -- I can't speak

remember this specific e-mail. for -- for Jawed, you know.

I -- I don't know, you

know, the situation that we were in at that time. Like I've referred to, you know, discussing here today, is we were trying to -- to figure out that the -- that the -- the way to deal with these issues, its fair use, with what we wanted the site to be about, with us assuming some, just because it looked professional, that it may not have authorization. MR. BROWNE: Q. Well, were there advantages

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD coming from. Q If you turn -- if you turn to the next page

of that e-mail, there's an August 9th e-mail where you write, "We need to start being diligent about rejecting copyrighted -- copyrighted/inappropriate content"; do you see that? A Q Yes, I see that. Now, do you think what Mr. Chen wrote in the

e-mail that we just looked about -- we just looked at, do you think that was being diligent about rejecting copyrighted content? MR. SCHAPIRO: THE WITNESS: Objection to form. I mean, again, you'd have to

ask Steve what he exactly meant by it, you know, what he was trying to state there. MR. BROWNE: Q. But you don't have any view

in your own mind as to whether -- what he did state there was being diligent about rejecting copyrighted material? A Q A No. No opinion one way or the other? No, I mean, he's -- in -- you know, to me,

you know, I can't speak for Steve, but it just seems like he was stating what may happen, and that -- you

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD know, that's assuming that they -- they want it off the site, and they -- they hadn't uploaded it to the site, so I don't know. that. Q Were you the CEO of YouTube as of -- was that You'd have to ask Steve about

your title as of August 2005? A Q A a team. Q Do you have a recollection of any discussions That's correct. Did Mr. Chen report to you at that time? Yeah, I guess, technically, but we worked as

with Mr. Chen or Mr. Karim about the topics set forth in this e-mail? MR. SCHAPIRO: THE WITNESS: MR. BROWNE: Objection; overbroad; vague. Yeah, I can't recall. Let's -- I guess we're on five,

right, so let's mark Exhibit 5. THE WITNESS: Thanks.

(Document marked Hurley, C., Exhibit 5 for identification.) MR. SCHAPIRO: MR. BROWNE: there? MR. SCHAPIRO: I'll -- I'll represent to you Is there another page to this? No, I don't think there is; is

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD MR. SCHAPIRO: much as you want. MR. BROWNE: THE WITNESS: MR. BROWNE: Q Of course, you totally can. All right. Okay. Take as much time and read as

And I -- just so if you turn to page two of

this document, it says near the -- near the top, on July 19th, 2005, "Chad Hurley wrote." A Q Uh-huh. And is that -- is that an e-mail that you

wrote on or about July 19th, 2005? A It looks like it, yeah. I don't remember it,

but yeah. Q And it says there, a little bit further down,

"But the simplest way to start making money is to place some AdWord text links on the site"; do you see that? A Q Yeah. And is that something that you wrote on or

about July 19th, 2005, in this e-mail? A Q It looks like it. Okay. Now, if you turn back to the front

page, it says -- you've read the front page of this e-mail; right?

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD A Q Yeah. Do you have a recollection of your cofounder

Jawed Karim putting stolen videos on the YouTube website? A Q No, I don't recall. You don't have any -- any recollection, even

setting aside from this e-mail, Mr. Karim ever putting stolen videos on the YouTube website? A Q No, I can't remember. That would be a serious thing; wouldn't it? MR. SCHAPIRO: speculation. THE WITNESS: I don't know. Potentially it could be. I -Objection; vague; form;

I mean, that's assuming that, you know, I don't -- I don't

Jawed didn't have authorization.

know what videos that he's -- that Steve's referencing, but... MR. BROWNE: Q. But he's referencing stolen

videos on the YouTube website. A Well, that seems like it's Steve's opinion,

but I don't -- I don't know what's -- what videos Steve saw. Q You were the CEO of YouTube at this time,

and -- and you were just informed by this e-mail that

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f

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HURLEY, CHAD your cofounder -- one of your cofounders thought your other cofounder was putting stolen videos on the YouTube website. Did you take any steps to discuss this situation further? MR. SCHAPIRO: e-mail. MR. BROWNE: Q A He is. It's on the top. Objection; he's not on this

But regardless, just answer the question. Yeah. Can you repeat the question again?

Q

Yeah. I said, you were the CEO of YouTube at this

time, and you were just informed in an e-mail from one of your two other cofounders that one of the cofounders was putting stolen videos on the YouTube website. Do you remember taking any steps to discuss this issue? A I -- I -- I can't remember. It doesn't look I may have

like I responded, but I don't know. followed up with him directly. know what happened. Q

I don't -- I don't

I can't remember the time.

You may have followed up with who directly?

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

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HURLEY, CHAD A Q Jawed. I don't know.

You don't have any memory at all of what

these stolen videos were? MR. SCHAPIRO: THE WITNESS: remember this e-mail. referring to. Objection; lacks foundation. Like I said, I can't -- I can't I don't know what Steve's

I can't remember. Q. Do you see, then, under --

MR. BROWNE:

in this same e-mail where Mr. Chen writes that Mr. Karim was putting stolen videos on the YouTube website, he says under number two, "Our advertising feature is less than a month away"; do you see that? A Where is that? Yeah, right there. Q And do you know what advertising feature he

was referring to there? A I don't know. We're, you know, again,

thinking about the various things that we're trying to concentrate on within the company. Seems like we were You know,

building some kind of advertising feature. to this day we continue to build more.

I don't -- I

don't know what this one is in particular. MR. BROWNE: /// So let's mark Exhibit 8.

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

89dc4a0d-321a-4d0c-b1a1-88a8c2f3221f