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

Filing 374

DECLARATION of Scott B. Wilkens in Support re: 367 Reply Memorandum of Law in Support of Motion,,. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Kohlmann, Susan)

DEAN GARFIELD - HIGHLY CONFIDENTIAL
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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, : : v. : Case No. : 07CV-2103 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, : : Case No. v. : 07CV-3582 : YOUTUBE, INC., YOUTUBE, LLC, : and GOOGLE, INC., : : Defendants. : - - - - - - - - - - - - - - - - -x ****HIGHLY CONFIDENTIAL**** Videotaped Deposition of DEAN GARFIELD Washington, D.C. Tuesday, November 2, 2009 10:24 a.m. BY: Okeemah S. Henderson, LSR JOB NO. 18039

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A P P E A R A N C E S: FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: STUART J. BASKIN, ESQUIRE SHEARMAN & STERLING, LLP 599 Lexington Avenue New York, NY 10022 [phone] FOR THE PLAINTIFFS VIACOM INTERNATIONAL, INC.: MICHAEL B. DESANCTIS, ESQUIRE LUKE C. PLATZER, ESQUIRE JENNER & BLOCK, LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 [phone] FOR THE DEFENDANTS YOUTUBE: DAVID H. MCGILL, ESQUIRE MAYER BROWN, LLP 1675 Broadway New York, NY 10019 [phone] FOR THE DEFENDANTS THE FOOTBALL ASSOCIATION: LAUREN A. MCMILLEN, ESQUIRE BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 [phone] FOR THE WITNESS, DEAN KELLY M. KLAUS, MUNGER TOLLES & 355 South Grand Los Angeles, CA [phone] ALSO PRESENT: Conway Barker, Videographer Orit Michiel GARFIELD: ESQUIRE OLSEN LLP Avenue, 35th Flr 90071

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DEAN GARFIELD - HIGHLY CONFIDENTIAL
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I-N-D-E-X Deposition of DEAN GARFIELD November 2, 2006 EXAMINATION BY: Mr. Baskin Mr. McGill EXHIBITS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 E-Mail chain dated 4/28/06 E-Mail chain dated 8/18/06 E-Mail chain dated 9/25/06 E-Mail chain dated 10/12/06 E-Mail chain dated 10/17/06 E-Mail dated 10/23/06 E-Mail dated 1/19/07 E-Mail chain dated 1/31/07 E-Mail chain dated 2/27/07 Article Article from Gazette The Tech online newsletter E-Mail chain dated 10/17/06 Article PAGE: 6 58 PAGE 14 23 25 31 37 39 47 48 53 94 107 110 120 134

E-Mail chain with proposal 11/8/06 41

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P-R-O-C-E-E-D-I-N-G-S (10:24 a.m.) THE VIDEO OPERATOR: This is the beginning of tape No. 1 in the videotape deposition of Dean Garfield taken by Mr. Baskin in the matter of Viacom International Incorporated, et al versus YouTube, Incorporated. Case No. 07-CV-2103 and the Football Association Premier League Limited Bourne Company, et al. versus YouTube Incorporated, et al in the United States District Court for the Southern District of New York. This deposition is being held at Jenner & Block, LLP, 1099 New York Avenue, Northwest Washington, D.C. on November 2nd, 2009. time is approximately 10:24. Reporter is Okeemah Henderson. The Court The video Will The

camera operator is Conway Barker, both on behalf of David Feldman Worldwide. whom you represent. MR. BASKIN: I am Stuart Baskin of Shearman & Sterling, and I am counsel for Viacom in this litigation. counsel please identify yourselves and state

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MR. PLATZER: litigation. MS. MCMILLEN:

Luke Platzer of Jenner

& Block, also counsel for Viacom in this Lauren McMillen of

Bernstein Litowitz Berger & Grossmann, counsel for the Football Association Premier League Limited and other class plaintiffs in this litigation. MR. DESANCTIS: MR. MCGILL: MR. KLAUS: Michael DeSanctis of Jenner & Block with the Viacom plaintiffs. David McGill from Mayer Kelly Klaus from Munger Brown, here on behalf of YouTube and Google. Tolles & Olsen appearing on behalf of the witness, and with me is Orit Michiel of the Motion Picture Association of America. THE VIDEO OPERATOR: swear in the witness. Whereupon, DEAN GARFIELD, called as a witness, having been first duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: Would you please

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31st or not. Q.

The dates are fuzzy.

BY MR. BASKIN: Well, first and maybe I'll be able to pin it a little better for you in a second with yet another document, but why don't you tell the ladies and gentlemen of the jury in your own words, Mr. Garfield, what it was that the Google/YouTube representatives told you was their response to the November proposal and the discussions that had ensued between you and Google and YouTube up to January 31st, 2007. MR. MCGILL: foundation. A. I think Philip was as was Kelly actually focused on business development and Philip in particular seemed to be very focused on, more focused on the business side of things, and so up until his introduction into the discussions, much of the conversation was about how do we effectuate content recognition and filtering of Google and YouTube. Once he became involved in the conversation it took a turn to a greater emphasis on strategic partnership and business relationship with the studios and how to Objection. Lacks

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advance that and at some point, again I don't remember the exact dates, it was conveyed to me that fingerprinting was progressing within Google but the heavy emphasis would be on not moving forward with the pilot but making sure that it was being deployed for their strategic business partners and those who they had a licensing relationship with. some point in early 2007. BY MR. BASKIN: Q. Do you recall whether the Google representative Mr. Inghelbrecht or whomever it was communicated to you that their position had changed from where it was prior to the new year? MR. MCGILL: A. Yes. Objection. Leading. Prior to the new year as I don't remember the exact date when that was conveyed but at

reflected in all the previous documents, my expectations certainly and I was lead to believe by the communication was that they were going to integrate a filtering process and we were going to launch the pilot. Post the new year it was clear we were not because they told me we were not going to move forward with the

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pilot and their filtering processes would be used for their business partners and those who established a licensing relationship with Google/YouTube but not with the studios generally. BY MR. BASKIN: Q. The jury may not understand what you mean or what they meant by the fact that the technology, the filtering technology would be reserved for their business or licensing partners. Can you explain to the ladies and gentlemen of the jury what that means, sir? What was meant by licensing and business partners? A. The way I interpreted it was we were having a conversation earlier about the white list and the blacklist and filtering and filtering out. The studios developed, marketed movies, television shows, they then make a decision on partners with whom they're going to exploit those copyrighted works, so market and distribute those copyrighted works. So Google essentially conveyed that they would work on getting authorization from the studios and licenses from the studios and

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others and those who would license, they would then in the context of that licensing arrangement work in integrate filtering. But for those companies who were not and did not develop a licensing arrangement with Google, they weren't going to be doing this sort of a pilot initiative or filtering. MR. BASKIN: for the tape. of tape 1. I think we have to break This is the end Shall we break for the tape now?

THE VIDEO OPERATOR:

Off the record at 11:39. On the record at

This is the beginning of tape 2 in the deposition of Mr. Garfield. 11:49. BY MR. BASKIN: Q. Sir, again to help you with the Let me show you what we dates a little bit.

will mark as Garfield Exhibit 10. (Garfield Deposition Exhibit No. 10 was marked for identification.) A. Q. Okay. I have read it. BY MR. BASKIN: Sir, first, again can you identify for us Garfield Exhibit 10 as consisting of an E-mail chain in which you were a participant

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towards February 22nd, 2007? A. Q. Yes, I was. Now, you will see in this E-mail

chain apparently the top two E-mails Mr. Inghelbrecht E-mailed to you a answer to a question that you raised with him following apparently your listening to a radio program; is that correct? A. Q. Yes. Just so the ladies and gentlemen of

the jury know since they've heard many initials today, different organizations, NPR is National Public Radio; is that correct? A. lot. Q. Your query was whether Google and YouTube had decided to make its content recognition technology available to everyone and the answer was given by Mr. Inghelbrecht that "I didn't hear this but our recognition technology and overall concept of claim your content is live and available to everyone who works with us." Do you see that, Mr. Garfield? Objection to the MR. MCGILL: That's correct, which I listen to a

characterization of the document.

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A. Q.

Yes. BY MR. BASKIN: From your discussions with

Mr. Inghelbrecht, what did you understand everyone who works with us meant, Mr. Garfield? MR. MCGILL: speculation. A. I'm not sure if I had an understanding when I saw it, ultimately I did because we continued to talk and it became clear that Google/YouTube was willing to filter for those who had a licensing relationship with Google/YouTube and not for those who did not. Just to clarify one thing about the document, which is further down the page where I say "Hello, here it is. evaluation." me up. The study is ongoing if you agree to filter, we will send the And then Philip says, "You crack The point I was making Thanks Dean." Objection. Calls for

wasn't actually a joke, it was the results of the content recognition filtering was available to everyone who participated in the process and that was a part of the NDA. It wasn't intended to suggest anything else other than if they participated find and

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NDA, they could get the materials. Q. I think we ought to break that down a little bit then for the jury because again, there's some initials flying and they may not be familiar with it. Basically I think you told us earlier that the MPAA was conducting an RFP, request for information? A. Q. A. Q. Correct. From various fingerprinting That is correct. And by this E-mail, you were

companies; is that correct?

advising Mr. Inghelbrecht that if Google would filter, you would provide him with the results of the studies; is that correct, sir? MR. MCGILL: Characterization. A. Largely correct in that if they participated and filtered and participated in the RFI, that like all the RFI participants around content recognition, they would get the results. BY MR. BASKIN: Q. And that was his reference to you crack me up, correct? Objection.

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BY MR. MCGILL: Q. It's a fairly important development, MR. BASKIN: ambiguous. A. I don't know if it's important but I do know that it stood out in my mind because it was a rather brazen thing to say, that copyrighted content was the lure and so you weren't going to do anything about it. Q. How did you react to the statement? MR. KLAUS: the phone call? A. surprised. I don't recall how I reacted. I do recall that I was disappointed that and I was also disappointed that we spent six months going back and forth on a pilot and then it didn't happen. BY MR. MCGILL: Q. Did you express any of your disappointments in a letter or E-mail memorializing this conversation? MR. BASKIN: MR. KLAUS: To whom? To whom? You mean when he was on Do you recall that? Objection. Vague and wouldn't you say?

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period of time and Google's conclusions about what was feasible for YouTube/Google was not something I thought -Q. Since you mentioned Google, I just I thought want to clarify the timeline again. around April, 2006 is that accurate? MR. KLAUS: MR. MCGILL: preacquisition? MR. KLAUS: A. Yes. I think that mischaracterizes his testimony. My testimony I think is that I So my use don't recall the exact time period and I don't recall whether it was pre or post. of Google/YouTube is just today's terminology and what we had switched to in this depo and not because I knew whether it was pre or post acquisition. BY MR. MCGILL: Q. Because I believe the individuals you were discussing in relation to that specific point were Steve Chen, Chris Maxcy, Zahavah Levine and Kelly Laing and those all being YouTube employees I thought I would try Object. Which would be

this conversation may have occurred in or

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and clarify with you whether or not that conversation helped refresh your recollection as to when the conversation occured preacquisition or post acquisition? MR. KLAUS: I would just object. My recollection was that Mr. Garfield had said Mr. Chen and Ms. Levine and perhaps Mr. Maxcy. I don't recall whether it's Mr. or Mrs. Liang, I don't recall Kelly Liang being involved. you should answer his question. A. Correct. Those were the three people I recall. on the phone. acquisition. BY MR. MCGILL: Q. Well, notwithstanding this comment you continued to engage YouTube in a dialogue about fingerprinting testing; is that right? A. Q. that right? A. Yes. In or about June, 2007 and Yes. In fact, those conversations I don't recall if Kelly were So I think it mischaracterizes his testimony but

I also don't recall the exact

timing and whether it were pre or post

continued up to and including June, 2007; is

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