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

Filing 325

DECLARATION of William M. Hohengarten/ Additional Unsealed Exhibits to the Declaration of William M. Hohengarten in Support of Viacom's Motion for Partial Summary Judgment in Support in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 322, # 2 Exhibit 323, # 3 Exhibit 338, # 4 Exhibit 374, # 5 Exhibit 376, # 6 Exhibit 377)(Hohengarten, William)

1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC. TELEVISION, INC., PARAMOUNT
PICTURES CORPORAT I ON, and BLACK

) )

) )
)

ENTERTAINMENT TELEVISION, LLC,

Plaintiffs,
vs.
YOUTUBE, INC., YOUTUBE, LLC i
and GOOGLE, INC.,

) )
)

) NO. 07-CV-2203
)

) )

Defendants.

) ) )

)

THE FOOTBALL ASSOCIATION PREMIER )
LEAGUE LIMITED, BOURNE CO., et al.,)

on behal f of themselves and all )

others similarly situated, )

vs.
YOU

Plaintiffs,
TUBE , INC., YOUTUBE, LLC, and

)
)

) NO. 07-CV-3582
) ) )

GOOGLE, INC.,

Defendants.

)

) )

HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF CUONG DO SAN FRANCISCO, CALIFORNIA FRIDAY, FEBRUARY 13, 2009

BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR JOB NO. 16417

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FEBRUARY 13, 2009

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9:01 a.m.

HIGHLY CONFIDENTIAL VIDEOTAPED DEPOSITION OF

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CUONG DO, SHEARMN & STERLING, LLP 525 Market
Street, San Francisco, California, pursuant to
notice, before ANDREA M. IGNACIO HOWARD, CLR,
CCRR, RPR, CSR License No. 9830.

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A P PEA RAN C E S:

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FOR THE PLAINTIFFS VIACOM INTERNATIONAL INC.:
JENNER & BLOCK, LLP

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By: MICHAEL DESANCTIS, Esq.
SARAH A. MAGUIRE, Esq.

1099 New York Avenue, NW, Sui te 900
Washington, D. C., 20001
(202) 637 -6357 mdesanctis@jenner. com

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smaguire@jenner. com

FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS:

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BERNSTEIN LITOWITZ BERGER & GROSSMAN, LLP
By: BENJAMIN GALDSTON, Esq.
12481 High Bluff Drive, Suite 300 San Diego, California 92130-3582

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[phone] [e-mail]

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

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MAYER BROWN, LLP

By:

BRIAN WILLEN, Esq.

1675 Broadway

New York, New York 10019

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(212) 506-2 i 46 bwillen@mayer. com

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A P PEA RAN C E S (Cont inued. )

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

GOOGLE, INC.:
WILSON SONSINI GOODRICH & ROSATI

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By: MICHAEL H. RUBIN, Esq.
650 Page Mill Road

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Palo Alto, California 94304-1050
[phone] [e-mail]

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ALSO PRESENT:

Adam Barea, Google, Inc.

Kelly Truelove, Consultant
Lou Meadows, Videographer.

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---000---

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21 22

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24

25

11
1

DO

2 09:09:21

A

They -- the -- my group of engineers were

3 09: 09: 25 responsible for implementing the features for the end
4 09:09:32 users of the YouTube site.
5 09:09:45
Q

And is that group of engineers that we're

6 09: 09: 47 talking about responsible for anything else other than
7 09: 09: 50 those duties on the YouTube site?
8 09:09:53
9 09:09:55

MR. WILLEN: Objection as to the form.

THE WITNESS: I mean, it's hard for me to

10 09:10:07 answer exactly, because that's a broad question.
11 09:10:09 12 09:10:10
Q

MR. DESANCTIS: Okay.
I'm just trying to get at, is it a team
that's dedicated to the YouTube site or do

13 09:10:12 that's

14 09:10:15 they also do other things at Google?
15 09:10:18
A

Just -- just -- well, just like any other --

16 09:10:23 just like any engineer at Google, they have a primary
17 09: 10: 26 responsibility, and they can, at their discretion, as
18 09: 10: 31 well as that of their manager, engage in side

19 09:10:35 projects.
20 09:10:36
Q

Okay. And those side proj ects migh t involve

21
22 23
24

09:10:39 YouTube or might involve something
09:10:42
A
Q

else at Google?

All of the above are possible.
Okay.

09:10:43
09:10:48

I understand from your prior
you began work

deposition that

at

YouTube

in

2005 ;

is

25

09:10:53

that correct?

12
1

DO

2 3
4

09:10:53

A
Q

Yes.
And you were

09:10:53
09:10:55

its fifth

employee?

A
Q

I

believe

I was

the fi fth.

5

09:10:56

Okay.

What was your

title

then, when you

6 09:11:01 started, if
7 09:11:05
A

if there were titles then?

The only ti tIe I've -- I heard or saw was an

8 09:11:11 offer letter, and I believe that was senior engineer.
9 09:11:13
Q

Okay. And what were your duties when you

10 09:11:15 started?
11 09:11:15
A

My duties were to -- primarily to ensure the

12 09: 11: 21 scaleabi li ty of the YouTube website -13 09:11:26
Q

Okay.
-- as well as do other -- any kind of

14 09:11:26

A

15 09: 11 :28 infrastructure work in general.
16 09:11:30
Q

Can you define what you mean by "ensure the

17 09:11:33 scaleability."
18

09:11:34 09:11:38

A

So

at that point the
you know, was

YouTube
was

site

was The

19

already

already growing.

20
21 22

09:11:42 numbers were

09:11:45
09:11:48 09:11:51
09:11:54 09:11:57

certainly very modest compared to the present day, but it was -- nonetheless, it was still growing percentage-wise quite a bit. So the -- the

23
24

25

that. So by "scaleabili ty, " I mean the ability to keep pace with the user demands on the site.
challenge
was

to keep

up with

13
1

DO
Q

2 09:11:59

Okay. Were there other engineers at YouTube

3 09:12:04 at that time?
4 09:12:06
A

There were -- there were some other

5 09:12:08 engineers, yes.
6 09:12:08
Q

So of the four other employees that were

7 09: 12: 11 there when you arrived -- first of all ( what were

8 09: 12: 15 their names?

909:12:17
10 09:12:20

MR. WILLEN: Obj ection; whose names?
MR. DESANCTIS:

I'm sorry. The witness

11 09: 12: 21 testified that he was the fi fth employee at YouTube,

12 09: 12: 24 and I'm wondering who the previous four were.
13 09:12:26
14

THE WITNESS: Okay. So excluding the

09:12:28

cofounders,

they were

Brent Hurley, Christina

15

09:12:42 Brodbeck, Yu Pan, Mike Solomon, and
09:12:58 were four employees, I 09:12:58
MR.
Q

-- yeah, those

16
17 18

believe.
Okay.

DESANCTIS:

09:13:01 09:13:04
09:13:05 09:13:07

And

of those, are any of them software

19

engineers?
A
Q

20 21
22

Two
Who

were software engineers. were those?
Solomon.

09:13:09
09:13:12

A
Q

They were Yu Pan and Mike

23
24

Okay.

Did they have

distinct engineering

09:13:22

duties from yours?
A

25

09:13:35

No.

17
1

DO

2 09:18:31

MR. DESANCTIS: Okay. Let me break it apart

3 09:18:33 then.
4

09:18:35

Q

What do you mean by "transcoding" ?
My

5

09:18:39 09:18:40 09:18:50 09:18:56
09:18:57

A

understanding of the definition of
computeri zed

6
7

"transcoding" is to the -- the -- the
another one.
Q

process of converting from one computer format to

8 9

Okay.

And

is there

a

single format that
we

10
11 12

09:19:17 YouTube

converts videos into?
Again, what time period are
Let i s

09:19:23 09:19:27 09:19:31 09:19:35
09:19:40

A
Q

referring to? say in that -- that early 2005 -2006

13 14 15

sorry -- late 2005, early
A

period.

It -format.

we

were converting to the

flash video

or

FLV
Q

16 09:19:42

Okay. Were any videos transcoded into a
MR. WILLEN: Objection; vague as to time.
Are we still talking about --

17 09:19:47 different format?
18 09:19:48

19 09:19:50
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21
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MR. DESANCTIS: At that time. All this line

09:19:53
09:19:57 09:19:57

of questioning is going to be at that time.
THE WITNESS:

Not to my
Okay.
coding

recollection.
take place?
as to the form.

23 24

MR.
Q

DESANCTIS:

09:20:03
09:20:07

Why

did this

trans

25

MR. WILLEN:

Obj ection

Page 18
1

DO
THE WITNESS: The trans

09:20:09
09:20:17 09:20:22
09:20:30 09:20:32 09:20:40 09:20:52

2 3

coding took place to

provide - - so that the YouTube website could provide

4
5
6

the video to its end users in a -- in a form that was,
you know i accessible to the greatest, you know,

percentage of our users.
MR. DESANCTIS: I see.

'7

8 9

Q And when a file is transcoded, is the
original video that the user uploaded altered somehow?

09:21:00 09:21:07

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11 12
13

MR. WILLEN: Objection; vague.
THE WITNESS: In the process of transcoding
it, the system does not modify the original file.

09:21:09
09:21:14

09:21:19
09:21:20 09:21:25 09:21:27 09:21:29 09:21:32
09:21:34

MR. DESANCTIS: Okay.
Q So is a copy made and - - and that copy is put
into whatever format YouTube wishes?

14

15 16 17 18 19 20

MR. WILLEN: Objection as to the form.

THE WITNESS: Please clarify. I

MR. DESANCTIS: Okay. I i 11 break - - I 111
break it apart.

09:21:35

Q Is a copy made of the video - - of the
original video that is uploaded by the user?

09:21:39
09:21:45
09:21:53 09:21:58 09:22:08

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22
23

A A copy is made to - - I believe, originally
in in those days, a copy was made to another video

24 25

server.

Q So then the original video that i s uploaded by
DAVID FELDMA WORLDWIDE, INC.

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb.bb6e~c8d87815bf5

19
1

DO

2 3
4

09:22:11

the user,

if

I understand,

is

on one

server, and

a

09:22:15 copy
09:22:18

--

a

separate copy

was made

to another -- a

different server?
MR. WILLEN:

5
6 7
8

09:22:19 09:22:21 09:22:22 the

Objection.
I'm

MR. DESANCTIS:

just trying to understand
was

testimony.
THE WITNESS:

09:22:26 09:22:28 09:22:29 09:22:36
Q

I

believe that

the case in

9

the

early days.
MR.

10
11 12

DESANCTIS:

Okay.
made and put on

And

the copy that is

the
was

09:22:39

other server, is that the one that's -- that

in

13 14 15

09:22:43 the
09:22:47 09:22:51

flash format that
MR. WILLEN:
THE WITNESS:

YouTube
Obj ection

desired?
as to the form.
on

The

flash video files were
on

16
17

09:22:56 both machines, and the
09:22:59 machines.

original files were
I see.
Okay.

both

18
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09:23:01 09:23:09
Q

MR.

DESANCTIS:

I'm

still

a

Ii ttle bit unclear,

and I

20

09:23:12 apologize

if

I'm not

following well enough.

21 09:23:16

Let's just talk about a single video that's

22
23

09:23:18 uploaded by a

user

i.n

its original
and

format.

It's
is
made

09:23:26 stored on a
09:23:32 of

particular server,

and then a copy
on a

24 25

that in flash format
is that correct?

stored

different

09:23:35 server i

20
1

DO

2 09:23:44
3 09:23:44 4 09:23:44

A
Q

No.

Okay.
It is converted into flash format and both

A

5 09: 23: 47 the original and the flash copy are retained on the
6 09:23:52 on the first server and replicated to a second server.
7 09:23:59
8 09:23:59
Q

I see.

Just so I know the terminology, when you say

9 09:24:11 "replicated to another server," does that mean an

10 09: 24: 15 addi tional copy is made?
11 09:24:18

MR. WILLEN: Objection.
THE WITNESS: A -- the -- the system makes

12 09:24:22

13 09: 24: 24 a -- a -- a copy of the files to the second machine.

14 09: 24: 28 MR. DESANCTIS: Okay.
15 09:24:30
Q

So the -- I just want to make sure you and I

16 09: 24: 33 are using the same terminology. When we say
17 09:24:36 "replicate" or "copy," is that the same thing?
18 09:24:38
A

In a technical

in a technical scenario

19 09:24:45 like this, I
20 09:24:49
Q

I use them synonymously, so yes.

What do we

what do you caii the first

21 09:24:52 server where, as I understand it, the original and the
22 09:24:57 initial flash formatted version are kept?
23 09:25:00 24 09:25:06

MR. WILLEN: Objection as to the form.
THE WITNESS: I -- I typically would call

25 09: 25: 08 that machine the "upload server."

Page 25
1

DO

09:33:00
09:33:03

2
3

of either the original or the reformatted videos?

MR. WILLEN: Obj ection to the form and calls
for speculation.

09:33:05
09:33:06 09:33:23 09:33:32

4
5

THE WITNESS: I don i t believe there were.

6 7 8
9

MR. DESANCTIS: Okay.
Q

Now, when a user uploads a video in

in

09:33:40
09:33:45

whatever format he or she may upload it in, does the

user - - does the uploader direct you to transcode the
video into flash format?

09:33:50
09:33:55

10

11
12
13

MR. WILLEN: Objection to the form.

09:33:57
09:34:04

THE WITNESS: What exactly do you mean by
direct us in this case?

09:34:05

14

MR. DESANCTIS: Q. i s there an opportuni ty
for the user to indicate, please recode this into
flash or please do not transcode this into flash?

09:34:07
09:34:11
09:34:16

15 16

17
18

A The system was not designed to provide that
option.

09:34:20 09:34:21 09:34:28

19
20

Q Okay. So it's a decision of YouTube to
transcode videos into flash, not the decision of the
user - - not the decision of the uploader?

09:34:31
09:34:35 09:34:36 09:34:37

21 22
23

MR. WILLEN: Objection; mischaracterizes the

testimony.
THE WITNESS: While it was not - - the system
did not provide the user the option, I believe it was

24

09:34:41

25

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f47fb-bbGe..c8d87815bf5

DAVID FELDMAN WORLDWIDE, INC.

Page 27
1

DO

09:36:30

2
3

Is it your testimony that the -- that a copy
of both the original video and the trans

09:36:42

coded video

09:36:49 09:36:55
09:36:55

4
5 6 7 8 9

was made and put on a second server?

MR. WILLEN: Obj ection.
MR. DESANCTIS: I - - I believe that's what

09:36:56 09:36:59
09:37:00 09:37:01 09:37:04 09:37:15

you had been testifying about, and I just want to go
back to something about that.

MR. WILLEN: Objection to the form.

10

THE WITNESS: Yes.

11 12
13
Q

MR. DESANCTIS: Okay.
Was that copy made at the request or the

09:37:21
09:37:24

direction of the user - - of the uploader i I should

14 15
16

say?
MR. WILLEN: Objection to the form.

09:37:25
09:37:33
09:37:43

THE WITNESS: The system performed the
replication as a course of its normal operation,
un- - - you know i uninstructed by the user.

the

17
18 19

09:37:48

09:37:56 09:38:00 09:38:02
09:38:03 09:38:08

MR. DESANCTIS: Okay.
Q

20 21

So I think the answer to my question is

is

no?
MR. WILLEN; Objection; mischaracterizes the

22
23

testimony.
He didn't say no.

09:38:09
09:38:10

24 25

MR. DESANCTIS: All right. I i 11 take his

DAVID FELDMAN WORLDWIDE, INC 0

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb.bb6e..c8d87815bf5

36
1

DO

2 09:52:44 3 09:52:45
4

MR. DESANCTIS: Okay.
THE WITNESS: That we have a larger

09:52:50 thumbnail, as I 09:52:53 be 09:52:59

just mentioned, that

was supposed

to

5

-- that

that we

were for, I think
embedded player,

a brief
embedded

6
7

period, using for the
in the

09:53:04 YouTube 09:53:09

player to provide the users an idea what was
video before

8

they

started playing

the video.

9 09:53:15

So that one was used because it was bigger

10 09:53:18 than the other one, and it would -- you know,

11 09:53:20 originally, but then we switched away from it because

12 09: 53: 23 of bandwidth considerations.
13 09:53:26

The other three thumbnails were implemen- --

14 09:53:29 implemented before I joined YouTube.
15 09:54:18

MR. DESANCTIS: Q. Do you know whether the

16
17

09:54:19 four thumbnails
09:54:22 09:54:37

for

a

particular video are stored
can be

on

the

same
A

server?
That

18

is -- that
Do

answered

differently
sorry.
Let

19
20

09:54:43 depending on what you mean 09:54:45
Q

exactly.

Okay.

you know where

--

I'm

21 09:54:49 me back up.
22 09:54:50

You testified a moment ago that in 2000

23 09:54:53 late 2005, early 2006 there were four thumbnail images

24 09:54:58 extracted for each video, barring a bug or a corrupted

25 09:55:03 file.

1 DO
2 09:56:45 any machine has other things, operating system, for
3 09: 56: 49 example.

38

4 09:56:49 5 09:56:51
6
7 8

Q

Oh, sure.
Other than an operating system, was any other

09:56:53
09:56:57

data stored on it?
A
Q

No.

09:56:59

Okay.

Was

there -- did there

come a

time

9

09:57:16 when fewer than four thumbnails Were
09:57:20 each video
09:57:27
A

extracted for

10

in the ordinary course of business?

11
12

I do not know what happened
my

prior to

my

09:57:30

joining. After
times.
Q

joining,

I

--

I do not

recall

any

13

09:57:33 such

14 09:57:34

Okay. Then up to and including when you went

15 09:57:39 on leave, is it your understanding that still four

16 09: 57: 45 thumbnail images are extracted for every video?
17 09:57:53

MR. WILLEN: Objection; calls for

18 09:57:55 speculation.
19 09:57:55

THE WITNESS: The last I heard, which was

20
21 22

09:57:57 some number of months ago,

it

was

still

four.
Are you

09:58:00
09:58:08

MR. DESANCTIS:
MR.

Okay.
you want a break?

WILLEN:

Do

23
24

09:58:10 okay?
09:58:12

Are you okay?
MR.
MR.

DESANCTIS:
WILLEN:

Did you

25

09:58:14

I was

just seeing.

Go

ahead.

39
1

DO

2 09:58:16
3 09:58:21
Q

MR. DESANCTIS: Okay.
Now, does the user who uploads a video

4 09: 58: 26 instruct YouTube whether or not to make the
5 09: 58: 29 thumbnail -- whether or not to extract the thumbnail
6 09:58:33 images?
7 09:58:34

MR. WILLEN: Objection; vague; calls for

8 09:58:36 speculation.
9 09:58:37
10
11
12

MR. DESANCTIS: Q. Do you understand the

09:58:38
09:58:42

question?
A
Q

What do you mean by

09:58:43

Okay.

I'm

"instruct"? wondering -- and -- and
me know.

you

tell
If

13 14

09:58:45 me
09:58:48

if you want to put this in it's still not clear, you let

di fferent terms.

15 09:58:50

I'm wondering whether the YouTube -- whether

16 09: 58: 55 YouTube automatically makes the thumbnail images of
17 09:59:02 videos that are uploaded or whether it does so only at
18 09:59:05 the specific structure -- instruction of the user who

19 09: 59: 09 uploads the video?
20 09:59:10 21 09:59:14

MR. WILLEN: Obj ection to the form.

THE WITNESS: The YouTube system

22 09: 59: 15 automatically creates the thumbnails.
23 09:59:25
24 09:59:28

It might be time for a little break.

MR. DESANCTIS: Yes. I should have said at

25 09: 59: 31 the outset, anytime you want a break, just speak up.

1 DO
2 11:50:31 employees then?
3
4 5

81

11:50:33 11:50:33

A
Q

Yes.
Okay.
Do

you know

--

and

--

and, again, I'm

11:50:44 not asking
11:50:47
Do

for names.
you know,

6
7

just trying to get a sense. let's say, at the time you left
I'm

11:50:50

for leave, what general departments or what types of

8 11:50:56 employees are given administrative -- access to the
9 11:51:00 admin?
10 11:51:03
11 11:51:07

MR. WILLEN: Obj ection to the form.

THE WITNESS: I don't -- I do not know what

12 11:51:09 the policies were.
13 11:51:10

MR. DESANCTIS: Okay.
Q

14 11:51:23 15 11:51:31
16
17
18

If a -- or -- sorry. Strike that.
Through the admin website, can a YouTube

11:51:44 employee remove a video from being viewable
11:51:51 11:51:53 11:51:57 11:52:02
A
Q

to the

public

on

the YouTube site?
Obj ection;

MR. WILLEN:
MR.

vague as to time.

19

DESANCTIS:

Q.

At

-- at

any time.

20
21

It is -- it is possible.
Okay.

11:52:06

Well,

just to

be

clear,

when you

say,

22 11:52:13 "it is possible," do you mean, maybe, you don't know
23 11: 52: 18 or, yes, that is something that is possibly using the

24 11: 52: 23 admin tool?
25 11:52:25
A

I am saying that it is possible using the

1 DO
2 11: 52 :28 admin tool, should the user have the privilege to do
3 11: 52: 32 so.

82

4 11:52:33 5 11:52:34

Q

I see.

Do not all people with access to the admin

6 11: 52: 36 tool have the same bundle of rights, so to speak?
7
8

11:52:41
11: 52: 42

A
Q

It varies
Okay.
Do

from person to person.
you know who

decides what rights

a

9

11: 52 :50

particular
A
Q

admin user

will

be given?

10 11 12
13 14

11:52:56
11:52:57

No.

Okay.

Prior to your going

on

leave, did you

11:53:05 have 11:53:09 11:53:09 11:53:16 11:53:19 11:53:20 11:53:23
A
Q

access to the admin tool?
Yes.
Had you always had

access to the admin tool

15

since
A
Q

you began work
No.

at

YouTube?

16
17 18

Okay.

When

were you

first

granted access to

the admin tool?
A

19 11:53:27

It was some time in the couple of months

20 11:53:31 after I joined.
21 11:53:32
Q

Okay. I keep referring to the admin tool,

22 11:53:43 but, of course, you're more familiar with the
23 11:53:45 architecture than I am.
24 11:53:47

Is there one admin websi te or tools -- tool,

25 11: 53: 51 so to speak, or are there multiple admin websi tes and

1 DO
2 11:53:55 tools that various YouTube employees might access?
3 11:53:58 4 11:54:03

83

MR. WILLEN: Objection to the form.
THE WITNESS: There is one site called the

5 11:54:07 "admin tool."
6 11:54:08

MR. DESANCTIS: Okay.
Q

7 11:54:09

And -- and -- and what is that exactly? Is

8 11:54:12 that a database? Is it a website? Something else?
9 11:54:15
A

It is a system created by YouTube, and -- and

10 11: 54: 23 it provides a web-based interface for these
11 11:54:25 administrative tasks.
12 11:54:27
Q

I see.

13 11:54:30

And is the sys tem that you just described

14 11: 54: 55 distinct from logging into the YouTube site with an
15 11: 54: 58 admin account?
16
17 18

11:55:01
11:55:04

MR. WILLEN:
THE WITNESS:

Obj ection;

vague.
a

Yes,

there's

distinct

admin

11:55:20
11:55:22

site that's separate
MR.
Q

from the website.
Okay.
who

19

DESANCTIS:

20
21 22

11:55:49 11:55:51 11:56:04

And

for those

are authorized to remove

videos, for whatever reason, is that removal done
through the admin tool you just described?
A
Q

23 24 25

11:56:10 11:56:10
11:56:13

Yes.
Okay.

Is there any other
a

way

that

you know

of to -- to remove

video other than through the

1 DO
2 11:56:16 admin tool?
3
4

84

11:56:20 11:56:26 11:56:32
11:56:33 11:56:33

A

One

can remove a video

if

one has access

to

the account that uploaded the video.
Q

5

Oh,

to the user account?

6
7

A
Q

Yes.
Okay.
So a

user can remove the -- the video
who

8

11:56:36 he or she
11:56:41
11:56:42

posted, as could anyone else

has access

9

to that user's account?
A
Q

10

Yes.
Okay.
Okay.

11
12

11:56:42 11:56:52
11: 56: 58

Separate and apart from the

the admin system you just described, I'm going to get
back to

13 14

11:57:00 11:57:04

that, are there admin accounts with which individuals can log on to the YouTube site?
MR.

15 16
17

WILLEN:

Obj ection

as to the form;

it's

11:57:09 ambiguous. 11:57:10
THE WITNESS:

It --

can you define what you

18

11:57:11 mean by "admin account"? 11:57:14 11:57:21 because
MR.

19

DESANCTIS:

Actually,

I

--

I

can't,
me

20
21
22

it's

something that I've

just seen in the
could help

11:57:24 documents, and I was hoping you
11:57:27

define

it.
Q

23 11:57:30

Is that a term you've -- you're unfamiliar

24 11:57:32 with?
25 11:57:36
A

It's a term that -- I mean, I guess there

Page 112
1

DO

13:34:38
13:34:42

2 3

number of views per day at the time that you went on
leave from YouTube?
A

13:34:43 13:34:48 13:34:50
13:34:53
13 : 34: 53

4
5 6 7 8 9

It was -- I believe it was around

one-and-a-half billion.
Q

One-and-a-half billion with a "B"?

A
Q

Yes.

Okay. And how from that one-and-a-half

13:34:56
13:35:04

billion are the particular videos chosen to be

10

displayed under the heading "Videos being watched
right now..."?

13:35:07
13:35:08 13:35:10 13:35:16 13:35:20 13:35:38

11
12 13

MR. WILLEN: Objection to the form.

THE WITNESS: The system employed an
algorithm to which I I do not know the details.
MR. DESANCTIS: Okay. All right.
Q

14
15

16
17 18

Mr. Do, if you look above the videos being

13:35:41 13:35:49
13:35:52 13:35:56

watched row, there i s a long white box and after it is

a blue box in which it i S written the word "Search."
Is that where a user can input search terms
to search the YouTube website?
A
Q

19 20 21 22
23

13:35:59
13:36:00 13:36:08
13:36:13

Yes.
And if a user goes to www.youtube.com and is

presented with this Homepage, is -- is this what's

24
25

presented before any particular search is inputted by
the user?

113:36:18

805 Third Avenue! New York! New York 10022 [phone]
dccc26 d5-840f -4 7fb-b b6e -Oc8d87815 bf5

DAVID FELDMA WORLDWIDE, INC.

Page 113
1

DO

13:36:18

2
3

MR. WILLEN: Obj ection to the form¡ calls for

13:36:19 13:36:27

speculation.
THE WITNESS: Could you perhaps rephrase your
question, because I don't -- I don't know if I

4
5

13:36:29
13:36:30 13:36:31

6 7
8

understand it?
MR. DESANCTIS: Oh, sure.
Q It's just that, you know, perhaps it's -- I'm
trying to make too basic of a point.
The Homepage that we've been discussing i is

13:36:32
13 :3'6 :36

9

13:36:45 13:36:55 13:37:01
13:37:03 13:37:04

10

11
12
13

that presented to a user before he or she inputs any
search terms?

MR. WILLEN: Objection to the form.

14 15 16 17

THE WITNESS: It depends.
MR. DESANCTIS: Q. What does it depend on?

13:37:08
13:37:12

A It depends on how the user entered the
YouTube site. We found that a lot of people don't
enter the si te through the Homepage.

13:37:15
13:37:20 13:37:21 13:37:23

is
19

MR. DESANCTIS: Okay.

20 21
22
23

Q If a user does enter the site through the
Homepage, are they presented with a Homepage like we
see here before entering any search terms of their

13:37:25 13:37:29 13:37:31
13:37:33

own? That i s

that's all I i masking.

24
25

A Yes.
Q Okay. Now, what would happen on the You

13:37:34

Tube

DAVID FELDMAN WORLDWIDE i INC.

805 Third Avenue, New York, New York 10022 [phone]
dccc26dS-840f-47fb-bb6e.oc8d87815bf5

Page 114
1

DO

13:37:42

2
3

Homepage if the user clicked with his or her mouse on
one of the videos in the row entitled "Videos being
watched right now..."?

13:37:49
13:37:53

4
5

13:37:54
13:37:56 13:37:58

MR. WILLEN: Objection to the form; calls for

6 7
8

speculation.
THE WITNESS: The last time I used the

13:38:02 13:38:06

feature - - because I can i t speak for the present day,
the last time I used the feature, the - - the web

9

13:38:09
13:38:14

10

the user i s web browser would then request the - - the
page on the YouTube site on which the user can watch
that video.

11
12 13
14

13:38:17 13:38:18 13:38:18

MR. DESANCTIS: Okay.

Q So is this in the -- is -- are the
pictures -- one, two, three, four -- five in a row,

13:38:21 13:38:27
13:38:29 13:38:34 13:38:36 13:38:36

15
16

these pictures under "Videos being watched right

17
18

now. . . ," are these examples of thumbnails that you and
I were discussing earlier today?

19
20 21 22
23 24

A Yes.
Q Okay. And ordinarily, barring some kind of
bug, by clicking on the thumbnail, the video itself is
then launched and the user can view it; correct?

13:38:41
13:38:46 13:38:51 13:38:52 13:38:55

MR. WILLEN: Objection to the form. THE WITNESS: That is the general practice.

25

MR. DESANCTIS: Right.

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb.bb6e.(c8d87815bf5

DAVID FELDMA WORLDWIDE f INC.

Page iis
1

DO

13:39:00 13:39:02 13:39:06 13:39:10 13:39:11 13:39:21 13:39:25 13:39:35

2
3

Q I'd like you to look down, maybe a quarter of
the way down the page. On the left is in sort of bold
writing, "Featured Videos"; do you see that?

4
5 6

A Yes, I do.
Q Okay. What are "Featured videos"? A "Featured Videos" are those that have been
selected by YouTube editors, I think they're called,
or employees of YouTube and - - to show up on this

7
8

9

13:39:39
13:39:47
13:39:52 13:39:55 13:39:58 13:40:04 13:40:04 13:40:16

10 11 12 13
14 15 16

section.

Q Do you know the criteria that YouTube editors
use to select the featured videos that they select?
MR. WILLEN: Obj ection; vague as to time.

MR. DESANCTIS: At any time.
THE WITNESS: I don't know that.
MR. DESANCTI S : Okay.

17
18 19 20

Q Do you know who at YouTube, let's say early
days 2005 to 2006, was responsible for selecting
featured videos?
A

13:40:21 13:40:27 13:40:36

It

- -

to

the best

of

my recollection,

it

13:40:49
13:40:52 13:40:57 13:40:59 13:41:22

21
22 23 24

was
Q

Maryrose was one such person.
Anyone

A
Q

else that you're aware of? I don't know who else.
What's Maryrose' s

Okay.

last

name?

25

A

Dunton, spelled D-U-N-T-O-N.

805 Third Avenue, New Yorki New York 10022 [phone]
dccc26d5-840 f -47fb.bb6e -Oc8d B7815bf5

DAVID FELDMA WORLDWIDE i INC.

Page 116
1

DO

13,41,34
13:41:40
13:41:45

2
3

Q Now, you said that these featured videos are
selected by YouTube employees called "editors."

4
5

Does the user who upload the video get to

13,41:54

dictate whether theirs -- their video will be featured
or not, or is it really at the discretion of the

13,41:56

6 7 8 9

13,41:59
13,42:01
13: 42: 04

YouTube edi tors?
MR. WILLEN: Obj ection as to form.
THE WITNESS: It is at the editors i

13:42:07
13:42:08 13:42:14

10

discretion.
MR. DESANCTIS: Okay.

11
12 13

Q And do you know how it is determined the
order in which the various featured videos appear at
any given time?

13:42:16 13:42:21 13:42:21
13:42:28
13: 42: 30

14 15

MR. WILLEN: Objection; vague and ambiguous.
THE WITNESS: I don i t know the rules behind

16 17
18

that.
MR. DESANCTIS: Okay.

13:42:30 13:43:08 13:43:10
13: 43: 18

19 20

Q Do you know what happens, Mr. Do, if a user
were to click on the words "See More Featured Videos"?

21
22 23
24

A Yes.
Q What happens?

13:43:18
13: 43 : 22

A The user is then taken to a separate web page
on the YouTube site which displays other videos that

13:43:27
13:43:33

25

have been featured.
DAVID FELDMA WORLDWIDE i INC.

805 Third Avenue, New York, New York 10022 (212) 705 - 8585
dccc26d5-840f47fb.bb6e..c8d87815bf5

Page 117

i
13:43:37
13:43:40
13: 43: 43

DO
Q

2
3

And would those other videos have been

selected at the discretion of the YouTube employees,

4
5 6

just like the ones we were discussing a moment ago?

13:43:47

MR. WILLEN: Objection to the form.

13:43:49
13:43:49
13: 44: 11

THE WITNESS: I believe so.

7
8

MR. DESANCTIS: Okay. You know, can I just
see this for a minute?
Q

13 :44 :36
13: 44: 43 13 :44 :48 13: 44: 52

9

Okay. And, again, by clicking on - - do you

10 11 12
13

know what happens if a user who's shown this Homepage
checks on either a featured video thumbnail or on the
title of the video?
A
Q

13:44:57 13:44:57 13:45:00 13:45:04 13:45:06 13:45:15 13:45:23

Yes.

14

What happens?
The user is taken to the - - a page on the

15
16

A

YouTube site where they can watch the video.
Q

17
18

Okay. So just to be extra clear, at a very

high level, when a user logs onto www.youtube.com. if
they're not logged on with their own individual user

19 20 21
22 23

13:45:27
13: 45: 32

account, they'll be shown a Homepage like this and can
click on any of these videos if they choose to watch
them; is any of that incorrect?
A
Q

13:45:35

13:45:39
13:45:43

That's a general summary.

24 25

Okay. Yeah, let me see that.
Mr. Do, along with the "See More Featured

13:46:38

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f47fb.bb6e.oc8d87815bf5

DAVID FELDMA WORLDWIDE f INC.

Page 118
1

DO

13:46:47
13: 46: 54

2
3

Videos II text on this Homepage i there i s a but ton that

says "Most viewed." Do you know what "Most Viewed"

13:46:57

4
5 6

is?

13:46:59 13:46:59
13:47:01

A Yes.
Q What is it? Can you please explain.

7
8

A Videos that are - - a set of videos that have
been - - that have had playbacks initiated for them

13:47:14
13:47:18

9

within a certain period of time.

13:47:20
13:47:26

10
11 12 13
14

Q Okay. And what would happen if the user
clicked on the "Most Viewed" button from the

13:47:29 13:47:30
13:47:32 13:47:34 13:47:35 13:47:38
13:47:43

Homepage -MR. WILLEN: Objection; calls for --

MR. DESANCTIS: Q.

if you know?

15
16

MR. WILLEN: Calls for speculation.
THE WITNESS: It would - - the - - the user

17
18

would then be brought to another YouTube web page that
shows the videos that were most viewed within some
period of time, and I don i t know what that period of
time was.
MR. DESANCTI S : Okay.

13:47:52

19 20 21 22 23 24 25

13:47:57 13:47:57 13:48:29 13:48:31 13:48:31
13:48:33

(Document marked Do Exhibit 8

for identif ication. )
MR. DESANCTIS: Let me show you a document

that r S being marked as Do Exhibit 8.
DAVID FELDMAN WORLDWIDE i INC.

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb-bb6e..c8d87815bf5

Page 121
1

DO

13:50:54

2 3
4 5 6 7
8

question, Andrea.

13:51:05 13:51:05

(Whereupon, record read by the Reporter as

follows:
"Question: Do you know why YouTube has a
"Most Viewed" page like this?")

13:49:46
13:49:48

13:51:07
13:51:09

MR. WILLEN: Go ahead and answer.
THE WITNESS: I -- I believe this page
actually predated my employment at YouTube.

13:51:16
13:51:19
13:51:24

9

10 11

MR. DESANCTIS: Okay. That doesn i t quite

answer the question.
Q Even if it predated your employment, do you
know why You

13:51:26

12 13
14

13:51:29
13:51:36
13:51:38 13:51:41

Tube has this "Most Viewed Today" page

available to users on its Homepage?

15 16
17

A i did not institute it, and I wasn't involved

on the decision making, so i
reason why it was put there.

I don't know the

13:51:43
13:51:44

18 19

Q Okay. Is "Most Viewed" seen within YouTube
as a measure of a video's popularity?

13:52:00
13:52:03 13:52:04

20
21

MR. WILLEN: Objection; calls for

speculation.
THE WITNESS: It has been used as such.

13:52:15 13:52:16
13:52:40 13:52:45

22 23
24

MR. DESANCTIS: Okay.

Q Okay. Going back to what has been marked as
Do Exhibit 7, this was the Homepage, in the middle

25

DAVID FELDMAN WORLDWIDE, INC.

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb.bb6e-oc8d87815bf5

Page 122
1

DO

13:52:54

2

where we see the "Most Viewed" button, to the right of
that is "Most Discussed."

13:52:56
13:52:58

3
4

Do you know what "most discussed" means?
A

13:53:09
13:53:11 13:53:12
13:53:14

5 6
7 8

I knew at one point, but I don't know if I

know the current def ini tion.
Q

Okay. At what point did you know?
Roughly a year ago.

A
Q

13:53:17
13: 53: 20

9

What did it mean then?

10 11 12 13
14

A

What it meant then was that it was the videos

13:53:25
13:53:31

that had received the most comments by other users.
Q

Okay. And what does it mean to receive

13:53:34 13:53:38

comments by other users? I just don't -- I just want
to be clear about what that term is.
A

13:53:40
13:53:44

15
16
17

On the primary web page on the -- on the

YouTube site where one watches videos, there are

a

13:53:48
13:53:54

user has an option of leaving a comment, a set of words, letters, anything they want there, just

18 19

13:53:57 13:54:02 13:54:05 13:54:07 13:54:10 13:54:11
13:54:18

whatever you can type on your keyboard, and that will

20
21

be displayed somewhere below the video or maybe not if
the comment is too old and it doesn't fit in the
screen, you know, the --

22

23
24

Q Okay.
A -- news comment.

25

Q And next to that is a -- the -- the words
DAVID FELDMAN WORLDWIDE, INC.

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5-840f-47fb-bb6e-Oc8d87815bf5

Page 123
1

DO

13:54:21

2

"Top Favorited."

13:54:24

3
4

Do you know what "Top Favorited" means?
A
Q

13:54:28

Yes.
Wha t does it mean?

13:54:28
13:54:33 13:54:35 13:54:42 13:54:47 13:54:50
13:54:51 13:54:54

5 6
7 8

A

My understanding that

is that it is the

set of videos for which the greatest number of other
users have added it to their list of favorite videos.
Q

9

And what is

what is a list of favorite

10
11

videos?
A

List of favorite videos is a -- it's -- it's

12 13
14

a piece of functionality provided by the YouTube site
that allows a user to -- to, you know, if when they
see a video that -- that they particularly like, to

13:54:57 13:55:03 13:55:08 13:55:11 13:55:14
13:55:20 13:55:24

15 16
17

add it to a list that is stored on the YouTube systems
and then it can be retrieved later on and referred to.
Q

Okay. So is "Top Favorited" and "Most

18 19

Discussed" also ways that YouTube measures the
populari ty of a video?

13:55:26
13:55:27

20
21

MR. WILLEN: Objection; calls for

speculation.
MR. DESANCTIS: Again, that does not call for
speculation. How does that call for speculation?

13:55:29
13:55:31

22 23
24

13:55:33
13:55:34

MR. WILLEN: How does

there's no

25

foundation that he knows what YouTube thinks about the

805 Third Avenue, New York, New York 10022 [phone]
dccc26d5.840f-47fb.bb6e.Oc8d87815bf5

DAVID FELDMAN WORLDWIDE, INC.

136
1

DO

2 14:28:23

But as you look at it, this is a document

3 14: 28: 27 numbered GOOOOl-242242 through 242244. The top

4 14:28:42 e-mail, it's a chain of e-mails, the top of which is
5 14:28;46 dated June 15th, 2007.
6 14:29:43 7 14:29:45
A
Q

Okay.
Mr. Do, were you aware of a cor- --

8 14:29:48 correlation in June of 2007 between those videos that

9 14: 29; 55 are most heavily favori ted and whether a video is
10 14: 30: 00 copyrighted?
11
12 13 14

14:30:01
14:30:04

MR. WILLEN:
THE WITNESS:

Objection.
I was

not aware.

14:30;05

MR. DESANCTIS:
Q

Okay.

14:30:09

Let

me

direct

your
10

15

14:30:13 paragraph of 14;30:23 14:30:25 14:30:31 14:30;31

Exhibit

attention to the second under which -- first of all,
CCed on

16
17 18 19

just state for the record, you are e-mail chain, correct, up at the top?
me
A
Q

let

this

Yes.
Okay.
Let me

point

you down
Jack Mc-

to the second
"Jake McGuire

20 21
22

14:30:34 paragraph under

the heading

14:30:38 wrote:" ; and I'm going 14:30:41
A

to ask
a

you who

is Jake

McGuire?

Jake McGuire

is

co-worker

who works

at

23
24 25

14:30:45 YouTube as a software
14:30;50
Q

engineer.

Okay.

Was

he a software engineer

in June

14:30:52 2007?

137
J.

DO

2 14:31:06
3 14:31:06

A
Q

Yes.
I'll just read the whole thing so that a

4 14:31:10 complete version is in the record.
5 14:31:12
6
7
8

"We undeleted" -- this is from Jake

14:31:14 McGuire 14:31:18 time.

--

"We

undeleted --

we

undelete videos all the

R.ight now we queue up the

favorite deletion

14:31:21 when we take videos down, but the queue

is currently
I think

9

14:31:24 about a week behind and getting worse.

this

10 14:31:28 is partly due to generally increased site volume, but

11 14: 31: 31 also get the sense that the volume of copyrighted
12 14: 31: 33 takedowns has increased dramatically and copyrighted
13 14: 31: 36 videos tend to be more heavily favori ted. "

14 14:31:40

Do you know, Mr. Do, whether -- what he's

15 14: 31: 54 referring to when he says "We undelete videos all the
16 14:31:58 time"? Do you know what "undelete videos" means?
17 14:32:05
A

Tha t would be conj ecture on my part. I don't

18 14:32:07 know what he's referring to specifically.
19
14: 32: 08

Q

Okay.

And obviously you

can't get inside

20 21
22

14:32:11 Jake McGuire's head,
14:32:14

let

alone the text of an e-mail,
a

but is "undeleting videos"

term that you and others

14:32:17 use 14:32:19

at
A
Q

YouTube?
No.

23 24 25

14:32:20

Okay.

The

next sentence is "Right
deletion when we

now we

14:32:25 queue up the

favorite

take videos

172
1

DO

2 15:51:27

MR. WILLEN: Yeah, and I think the vagueness

3 15:51:28 is, at least in my own mind, is what the information
4 15:51:30 that we're talking about is, and maybe he understands,
5 15:51:37 but I'm not sure that I do.
6 15:51:38

MR. DESANCTIS: Okay. My -- the earlier

7 15: 51: 46 dialogue that I was having with the witness was about
8

15:51:51 how I could

find out the types of actions that are

9

15:51:59 logged

in the ut -user - action table, and I asked

if

one

10
11

15:52:08 could look

to source code, and you said, yes, but you
a

15:52:14 could
15:52:17
Q

also ask
And my

colleague.

12

question is, which colleague would you

13 15:52:19 ask?
14 15:52:23
A

I wouldn't know exactly, so I would talk to

15 15:52:25 Mike as a first attempt, Mike Solomon.
16 15:53:13
Q

Much earlier today, Mr. Do, you mentioned

17 15:53:23 private videos. What are private videos?
18 15:53:29 19 15:53:35
A
Q

What time frame are you referring to?

You can choose any time frame you like. I--

20 15:53:38 I'm just -- right now, I'm just talking -- I'm just
21 15:53:42 asking in a general sense how it -- how, in general,
22 15: 53: 45 is a private video different from a public video, and

23 15: 53: 48 then we can drill down on details?
24 15:53:51
A

Okay. Generally, private videos are videos

25 15:53:56 that at the time of -- of upload, the user specified

1 DO
2 15:54:02 as, you know, wanting to be private.
3 15:54:04
4

173

What that means is that the -- not every

15:54:10
15:54:14 15:54:17 15:54:21 15:54:25

single user
user
on

on

the

YouTube

site, not --

an

arbitrary

5 6
7
8

the YouTube

site

may

not be able to see the

video.

They can only see the video

if

they had a --

if

the uploader of the video chose to allow

it
Let

for

that user.
Q

9

15:54:26
15:54:45

Okay.

And how many

--

I'm

sorry.

me

--

10

let

me go

back for a second.

11 15:54:51

Did I -- what happened? Can you hear me now?

12 15: 55: 02 Do you want to go off the record for a minute?
13 15:55:04

THE VIDEOGRAPHER: It's on.

14 15:55:05
15 15:55:09
Q

MR. DESANCTIS: You good now?
I just want to go back, you know, for a

16 15: 55: 12 minute to the -- what we were talking about in foreign

17 15:55:15 terms of could we look to the code or would you ask a

18 15: 55: 18 colleague for -- to determine what information or what
19 15: 55: 23 actions are logged in the fields we were discussing,

20 15: 55: 27 in the tables we were discussing wi thin the logging
21 15: 55: 30 database.
22 15: 55: 30
My question is, you stated that not all

23 15: 55: 36 changes are reflected in the code, and that i s why you

24 15:55:39 would -- could also go to a colleague -25 15:55:42
A

Yes.

1 DO
2 16:04:46 that a private video is different from a public video?
3
4

180

16:04:50 16:04:53 YouTube?
16:04:54

Let

me

start this

way:

Are they both on

5

MR. WILLEN:
THE WITNESS:

Obj ection

to the form.

6
7 8

16:04:58 16:05:00 16:05:00
Q

Yes.
Okay.
how

MR.

DESANCTIS:

And so how

--

is --

how

is

a

private

9

16:05:03 video

different

from a

public video?
only be

10 11

16:05:07

A

Private video can

watched by the

16:05:11 YouTube

users that the uploader of the video has

12
13

16:05:17

authorized to view
Q

it.
is

16:05:21

Okay.

And

it

true that a public video can

14
15

16:05:30 be viewed by anybody who

visits the
a

YouTube.com site?

16:05:45
16:05:45

A
Q

No.

16
17 18

Okay.

Who

can't see

video --

who

cannot

16:05:49 see a
16:05:59 16:06:05
A
Q

public video

on YouTube. com?
indicated as

If
--

a

video is

being racy --

19 20

Okay.

16:06:06

A

and the user does not

affirm that they are

21
22 23 24

16:06:09 above 16:06:12
Q

the legal age, they cannot watch the video.
Okay.

Any other scenarios?
video has

16:06:26 16:06:34

A

If the

been

-- if the playback -has prevented

if

the uploader of the video has not

25

16:06:42 or has

specified that

they only want

the video to be

1 DO
2 16:06:47 playable in certain countries, and you're not in

181

3 16:06:51 and the viewer is not in one of those countries, that
4 16:06:55 they will not be able to view the video.
5 6
7 8 9

16:06:57

Q

Okay.

By

contrast,

you

testified

a mo-

--

a

16:07:09 moment ago 16:07:12 the YouTube

that

a

private video can

only be watched by

users that the uploader of the video has

16:07:15
16: 07: 17

authorized to view
Is there
a

it.

10

16:07:20 16:07:25
16:07:30

11
12

limit on the number of users that the upload of the -- uploader of a video can authorize to view a private video?
A
Q

Yes.
What

13
14

16:07:30
16:07:38

is -why

what

is that limit,
we

and

if

dates

are relevant,

don't

say, you know, at the

-- at

15 16
17

16:07:41 the time you went on

leave from YouTube?

16:07:44

A

The

last
I

time I saw, and I

--

I did not check

16:07:46
16:07:48 16:07:48

it

right before
Q

-leave,

18

Sure.

19

A
Q

-25.

\oent on

was 25.

20
21 22

16:07:50
16:07:55
16:07:57

Are you aware of any time

in YouTube's
di fferent

history whether that

number was something

23
24

16:07:59 than 25 or has
16:08:08 16:08:12
A
Q

it

always been 25?

It

has not always been 25.
What

25

Okay.

else

do you

recall

it

being?

182
1

DO

2 16:08:17

A

I recall that earlier on there -- I don't

3 16: 08: 23 believe that there was a limit to the number of users.
4 5

16:08:30

Q

What time

period

was

there

no

limit to the

16:08:33 number of

users?
not remember the exact timing.
was no

6 7
8

16:08:35
16:08:37

A
Q

I do

If there

limit to the
be

number of

users,

16:08:41

in what Sense would

it

private?

9 16:08:44

MR. WILLEN: Obj ection to the form; calls for

10 16:08:46 speculation. I'm not sure it's even a question.
11 16:08:55
12

THE WITNESS: The -- it was still the case

16:09:01 16:09:04

that for the private videos that the user had to
specify
who

13
14

had access to the video.

So a

user that

16:09:08 was not on 16:09:12 watch

that

list

of

authorized users could not

15 16
17
18

the video.
MR.

16:09:13 16:09:41
16:09:48
Q

DESANCTIS:

I see.

I asked you what time

period
you

was

there

no
do

limit to the

number of

users, and

said, "I

not

19

16:09:51 remember the
16:09:53

exact timing. "

20
21 22

Do you remember approximately what the timing

16:09:55 was?
16:10:11
A
Q

Maybe in -- some time in 2007.

23 24

16:10:15
16:10:18

So from the -- are you saying that from
from the genesis of YouTube through some time

the

25 16:10:21 in 2007, there was no limit?

183
1

DO

2 16:10:24
3 16:10:25

A
Q

I'm not saying that.

Okay. What are you saying with respect to 4 16: 10: 29 your estimate of the time when there was no limit?
A

5 16:10:34

I'm saying that between the time that I first
the feature of private videos to some time,

6 16:10:36 saw the

7 16:10:42 I believe, in 2007, there was no limit-8

16:10:46 16:10:46
16:10:47 16:10:49 of

Q

Okay.

9

A
Q

to the users.
Do

10
11

you

recall

when you

first

saw

the feature

private videos?
A
Q

12

16:10:57 16:10:58

It
Do

was

--

I can't pinpoint

it

exactly.

13 14 15

16:11:00 videos was 16:11:03 or whether

recall whether the feature of private added after you became a YouTube employee
you

it

was

already

there when you became a

16

16:11:05 YouTube employee?
A

17 16:11:14

I believe it was there around the time I

18 16:11:16 started.
19

16:11:17

Q

Okay.

When a

user uploads

a

video, can he or

20 21

16:11:30 she 16:11:33 16:11:36
16:11:37

indicate at that time whether he wants the video
A
Q

to be public or private?
Yes.
Can he

22
23
24

or she -- and -- and -- and is that

16:11:47

action logged anywhere?
MR. WILLEN: Objection to the form.

25 16:11:51

1 DO
2 16:46:24 point in time, or are you just saying not now,
3 16:46:26 obviously, because you're on leave?
4 16:46:28 A
Q

196

1'm saying prior to my becoming a manager.
Prior to you becoming a manager.

5 16:46:31
6 16:46:33
7 16:46:37

And when did you become a manager?
A

It was around the time frame of -- it was

8 16:46:43 around the time frame of the acquisition, late 2006,
9 16:46:46 early 2007, I think.
10 16:46:47
11 12
Q

Okay. And since

since then, have you

16;46:52

16:46:55
16:46:59

written any code or have frequently?
A
Q

you

just simply

done

it

less

13
14 15

I've written
Okay.
Do

some code.

16:47:00

I assume

correctly that

you

read

16:47;09 Python 16:47;11 16:47:11
A
Q

--

you

read and write Python?

16
17 18

Yes.
Okay.
And what

--

can you

just explain

what

16;47:14 Python
16: 47: 14

is.
Python
Okay.

19

A
Q

is
And

a computer programming

language.

20
21 22 23 24 25

16;47:20
16:47:24

maj ori ty

is that the language in which the of the code that runs the YouTube site is

16:47:27 wri tten in?

16:47:29

A
Q

Yes.
Okay.

16:47:29
16:47:40 / / /

1 DO
2 16:50:44 plaintiffs in this lawsuit?
3 16:50:45
A

199

I am not aware of what production has

4 16: 50: 46 occurred.
5 16:50:47
6
Q

Okay. Are you aware of any -- are -- are you

16:50:50 aware of anyone 16:50:56 16:50:59
16:51:00 16:51:04

else extracting source code for
not heard of
Let
me

7
8

production in this case?
A
Q

I have

it.
your

9

Okay.

direct

attention to page
Now,

10
11

three of what's
in
a
A
Q

been marked Exhibit 13.

this is

16:51:19

file

named

at the top

"search. py" ;

correct?

12 16:51:27

Yes.
Okay. And what is the function of the --

13 16:51:27

14 16:51:30 what -- what, in a very general sense, is the function
15 16:51:36 of the file entitled "search.py," if you -- if you
16 16: 51: 39 know?

17 16:51:40

A

The general function was, prior to YouTube

18 16: 51: 45 integrating with Google Search, to provide search
19 16: 51: 50 functional ities in response to user search queries.
20 16:51:54
21 22
Q

Okay. Did you write any of the code in
I may have

16:51:57

search.py file?
A
Q

16:52:02

written fragments of
me

it.
to page

23
24

16:52:04
16:52:08

Okay.

Let

direct your attention
sign

three.

In the middle of the page, approximately the

25

16:52:12 middle,

there's

a number

followed by the word

200
1

DO

216:52:17
3 16:52:20 that?
4 16:52:20 5 16:52:20
A
Q

and it continues; do you -- do you see

Yes.
Does the number sign indicate that this is a

6 16:52:23 comment or does it indicate something different?
7
8 9

16:52:26
16:52:27

A
Q

It indicates
Okay.
And

the comment.

the comment is

16:52:32 16:52:37

10 11 12

16:52:40
16:52:43

13
14
15

16:52:45
16:52:48 a

Mr. Do,

are you familiar with the concept of

in relation to the search function?
A
Q

16:52:54 16:52:55
16:52:57 what

I am

generally familiar.
Can you

16
17
18

Okay.

describe, in general terms,

it
A

means

-a

what a

-a

what a

is.

16:53:00 16:53:10 16:53:13
16:53:31

It is
Okay.

--

it is

19

20
21
22 23 24

Q

And

the comment continue
comment

well,

the

I

--

I

just read the
that is not
And

that is there in
some

16:53:35

the middle of page three.

Below

that begins

16:53:38 some

live
A
Q

code

a comment;

correct?

16:53:41
16:53:41

Yes.
Okay.

25

the

first line, is it correct that

201
1

DO

2
3

16:53:56 what the

first line is

doing

is indicating

that_

16:54:01
16:54:04 16:54:07 16:54:14 16:54:14
A
Q

4

5 6
7
8

No.

Okay.

16:54:16
16:54:22 16:54:27

A

is it doing? It is taking -What

9

10 11
12

16:54:30 16:54:33
16:54:37
16:54:37
A
Q

?

13
14

Yes.
Okay.
And what does

mean?

15

16:54:43 16:54:45 16:54:55
16:55:28

A

I need to look back I have what

at the code to

make

sure

16
17
18

that
Q

it
--

actually means.

Okay. Okay.
I

A

I see the

line of

code

that --

19

16:55:30
16:55:31

that calculates
Q

it.
So

20 21
22

Okay.

--

so what

is

an

16:55:34 what does a

16:55:36
16:55:42 16:55:47

A

A_is -- is
Olmy.

rating

mean?

a

-- is something that's

23 24 25

16:55:49

Q

202
1

DO

2
3 4

16:55:51

A
Q

And
I

it's
a

a

16:55:52 16:55:53

see.

So a

--

a

user

who

is other than the
?

5

16:55:55 uploader can watch a video, and when they watch a

6 16: 55: 58 video, they can
7
8

16:56:00
16:56:01 16:56:04
16:56:07

A
Q

Yes, they have the option.
Okay.

And what
13

this is referring to

on page

9

three of Exhibit
Yes.

is the

of a -- of a

10

particular video; correct?
A
Q

11 16:56:09 12 16:56:09

Okay. We talked about what happens if the
Then, we i re

13 16: 56: 15
14 16:56:19 told, are we not, that if the
15 16:56:21
16 16:56:27 17 16:56:29
A
Q

Yes.
Okay. I just want to make sure I'm reading

18 16:56:29

19 16:56:34 this correctly.
20 21
22 23

16:56:35 16:56:39 see,
16:56:44

Now, if you go down several lines, do you

? Do you see that line?
A
Q

16:56:51
16:56:51

Yes.
Okay.
Is -- iS that indicating that if the

24 25

16:56:56

1 DO
2 16:57:04 3 16:57:13 4 16:57:13
5 6
7
8

203

A
Q

Yes.

Okay. And if the video has been II

16:57:15 16:57:21 16:57:24 16:57:24

correct?
A
Q

Yes.

Is that an
?

?

Do

you know

if

9

16:57:33
16:57:34

those are

10

A It is
Q Okay. That's all I have on that; okay.
Can I take it?

11
12

16:57:39
16:58:27 16:58:28

13
14
15

MS. MAGUIRE: Yeah.
(Documen t mar ked Do Exhib i t 14

16:58:30 16:58:30 16:58:30

for identification.)

16

MR. DESANCTIS: Let me show you, Mr. Do, what

17 16: 58: 33 has been marked as Do Exhibit 14. Copies of this are

18 16: 58: 42 being given to counseL.
19 16:59:17
Q

This is a multi-page document numbered

20 16:59:19 G00001-2581772 through 2 -- 2581805.
21 16:59:39

And the first page is an e-mail from Mike

22 16:59:55 Solomon to Cuong Doi dated June 15th, 2007, and
23 16: 59: 59 attached to it is what appears to be a presentation of

24 17:00:04 slides.
25 17:00:04

Mr. Do, are -- are you familiar with this

1 DO
2 17: 18: 18 video servers i we, at some point later on, did not

215

3 17: 18: 25 copy the original file across both of the machines.

4 17: 18: 28 The -- the original file did not reside on both video
5 17:18:31 servers.
6 17:18:37
Q

I see.

7 17:18:37
8

So if I understand correctly, and I'm just

17:18:39

trying

to make

sure I do, at this
would be

later point in time,
a

9

17:18:45
17:18:53
17:18:57

there would -- there
trans coded

the original,

10 11

file,

and a copy of the transcoded

file,

for

a
A
Q

total of three; is that correct?
That was generally the case.

12 17:19:00
13 17:19:01

Okay. And what time period was that the

14 17: 19: 06 practice?
15

17:19:08

A
Q

I don't know when
Okay.

it started.
the practice
know,

16
17

17:19:10
17:19:12

Is

it still

was

it

still
A

the practice, as far as you

at the time

18

17:19:14 you went on leave?
I do not know what we did with the original

19 17:19:19

20 17:19:22 video files at that point.
21 17:19:23
Q

Okay. Was there a -- did there ever come a

22 17: 19: 35 time when additional transcoded copies were made, for
23 17:19:40 example, to H.264 or -- or other formats other than

24 17:19:50 flash?
25 17:19:51

MR. WILLEN: Objection to the form.

216
1

DO

2 17:19:55

THE WITNESS: Later on, at some point, we

3 17:19:58 introduced, you know, H.264 video format.
4 17:20:04
5 17:20:04
Q

MR. DESANCTIS: Okay.
Did you introduce any other formats? "You"

6 17:20:07 meaning YouTube, not you personally.
7 17:20:14
8 17:20:14
A
Q

Yes.

Which? Can you identify them, please.
I believe that the system was modified to

9 17:20:15

A

10 17:20:18 support something called the "3GPP standard."
11 17:20:29
Q

Okay.
I think those were the three standards.

12 17:20:41

A

13 17:20:42 Q Okay. If initially you were -- YouTube was
14 17:20:45 transcoding all videos to a copy in flash format, why

15 17: 20: 54 did it -- why did YouTube begin making copies
16 17: 20: 58 trans

coded in these other formats as well, if you

17 17:21:01 know?
18 17:21:02

MR. WILLEN: Obj ection¡ lacks foundation.

19 17:21:03

THE WITNESS: I was not part of those

20 17: 21: 06 decisions.
21 17:21:07

MR. DESANCTIS: Okay.

22 17:21:10 Q Do you know what the copies -- what
23 17: 21: 12 applications copies in -- in these other formats
24 17:21:16 serve?
25 17:21:17

MR. WILLEN: Objection to the form.

217
1

DO

2 17:21:19

THE WITNESS: As far as I know, the 3GPP

3 17: 21: 25 standard was for some set of mobile phones.
4 17:21:29

MR. DESANCTIS: Okay.
THE WITNESS: And the H.264 format was served

5 17:21:30

6 17: 21: 35 primarily to -- I believe, to the Apple TV.
7 17:21:35
8 17:21:47
Q

MR. DESANCTIS: Okay.
So let's take a situation where a copy is

9 17:21:52 made from the original into H.264 format.
10 17:21:59
11 12 13

So, at that point, there's an original and

17:22:02

there's

a copy

in H.264 format.
an

Would YouTube

also
only

17:22:08 have made an

--

additional copy in flash format, or

17:22:14 were

there instances where

it

only

YouTube

14
15

17:22:17 made a copy

in H.264 format?
Obj ection

17:22:20
17:22:22 time.

MR. WILLEN:

to form; vague as to

16
17 18 19

17:22:23
17:22:27

THE WITNESS:

I don't know the answer

for

certain.
MR.
Q

17:22:30
17:22:30

DESANCTIS:

Okay.
new

20

What I'm

getting at is, were these

21 22 23
24 25

17:22:33 formats

additive or did they replace flash for certain
videos,

17:22:36 types of
17:22:38 17:22:39 17:22:45 of were

if

you know?

MR. WILLEN:
THE WITNESS:

Objection to the form.

Generally, the ones that I

know

-- supplemented the flash video file.