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)

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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 . YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants. ) Case No.

) 1:07CV02103

VIDEOTAPED DEPOSITION OF LEE L'ARCHEVESQUE NEW YORK, NEW YORK Thursday, February 18, 2010

REPORTED BY: ERICA RUGGIERI, CSR, RPR
JOB NO: 18753

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DAVID FELDMAN WORLDWIDE,

INC.

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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February 18, 2010 9:22 a.m.

VIDEOTAPED DEPOSITION OF LEE L'ARCHEVESQUE, held at the offices of Mayer Brown, 1675 Broadway, New York, New York, pursuant to notice, before Erica L. Ruggieri, Registered Professional Reporter and Notary Public of the State of New York.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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AP PEARANCES FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: JENNER & BLOCK, LLP BY: LUKE C. PLATZER, ESQ. 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 [phone] [e-mail] FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN, LLP BY: BRIAN WILLEN, ESQ. JASON I. KIRSCHNER, ESQ. 1675 Broadway New York, New York 10019 [phone] [e-mail] [e-mail] ALSO PRESENT: MANUEL ABREU, Videographer

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the respective parties herein, that filing and sealing be and the same are hereby waived. IT IS FURTHER STIPULATED AND AGREED that all objections, except as to the form of the question, shall be reserved to the time of the trial. IT IS FURTHER STIPULATED AND AGREED that the within deposition may be sworn to and signed before any officer authorized to administer an oath, with the same force and effect as if signed and sworn to before the Court.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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THE VIDEOGRAPHER:

This is DVD 1

of the videotaped deposition of Lee L'Archevesque, in the matter Viacom International, Inc. et al., versus YouTube, Inc. et al., The Football Association and Premier League, et al. This deposition is being held at 1675 Broadway, New York, New York, on February 18th, 2010, at approximately 9:04 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 Erica Ruggieri, in association with David Feldman Worldwide. Will counsel please introduce themselves. MR. WILLEN: Brian Willen, from

Mayer Brown, for the defendants. MR. KIRSCHNER: Jason Kirschner,

from Mayer Brown, for the defendants. MR. PLATZER: Luke Platzer, from

Jenner & Block, for the plaintiffs.
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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L'ARCHEVESQUE THE VIDEOGRAPHER: court reporter please Will in the the

swear

witness. LEE as a L ' ARCHEVESQUE, wit n e s s , Public, having been duly and called a

sworn by

Notary as

was e x a m i n e d

testified

f o i l ows :

EXAMINATION BY MR. WILLEN:
Q.

Good

morning,

Mr.

L'Archevesque. A.
Q.

Good

morning. state your full name a n d \

Can you for the

address A.

record,

please? ^^^^^^^^^^^H

Lee L ' A r c h e v e s q u e ,

Q.

Have you e v e r

been

deposed

before? A.
Q.

Yes. What was t h e matter in which you

were

deposed? A. It was an e m p l o y e e m a t t e r at
4

Viacom.
Q.
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00

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"

LfARCHEVESQUE A. Q. Q2, 2008. launched, it? using or was

I s t h a t when i t

t h a t when Viacom s t a r t e d u s i n g A. it. Q. A r e you a w a r e t h a t

T h a t ' s when V i a c o m s t a r t e d

the of

technology actually 2007?

launched in October

MR. PLATZER: Foundation. MR. WILLEN: aware. A. Q. completed, No. After

Objection.

I'm asking i f

he's

t h e Viacom t e s t

was

were t h e r e

communications whether the

b e t w e e n Viacom a n d G o o g l e a b o u t Viacom w o u l d a c t u a l l y technology? A. I b e l i e v e t h e r e were of t h a t that the nature. primary start

using

certainly It's my

conversations recollection

c o n v e r s a t i o n s were a r o u n d - - b e c a u s e YouTube a p p r o a c h t o f i n g e r p r i n t i n g o u t s i d e of o u r ,
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00

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L'ARCHEVESQUE flow, as it relates to fingerprinting and the other partnerships we had there, we had a lot of conversations as far as, okay, well, how are we going to -- this is different. work? How are we going to make this

5 6 7 8 9

I recall those conversations more

so than, hey, are we going to use this. Q. Those were internal Viacom

01 27 49

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conversations or conversations between Viacom and -A. Q. I believe they were both. When you say outside of Viacom's

standard work flow, what exactly do you mean? A. The work flows that we have --

01 27 57

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the normal way of fingerprinting that we had established was to create, you know, these low res files, these flash files and fingerprint them on-site and then ship out the fingerprints; so the content would stay in-house and, you know, within our walls, if you will. Because of the requirement with the YouTube tool to fingerprint off of an

01 :28 :11

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01 :28 :23

25

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00

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L'ARCHEVESQUE AVI file, that was outside of our kind of standard approach, requiring us to, you know, to try to come up with an alternative which would, you know, allow us to keep the content internally, which was our preference to do that. But

5 6 7 8 9

ultimately it didn't work out that way. Q. Why was it Viacom's preference

01 28 51

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to keep the content internally? A. We like to keep the content

close to our -- close to our, you know, our infrastructure, our data center, you know, our systems that maintain access controls over that content and things of that nature. Q. So the normal work flows that

01 29 06

15 16 17 18 19

you were describing, those were the work flows that Viacom had used with Auditude at this time? A. Aside from the DVD content,

01 :29 :18

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which we talked about, we gave physical media to them to fingerprint the DVDs. Yes, it was the same approach. When I'm speaking now, I'm

01 :29 :40

25

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00

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L'ARCHEVESQUE speaking in production. They were

testing, there were other scenarios that, you know , we may have taken different approach*2s just to fast track testing or things o f that nature.

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Q.

When you say "production," you

are refe rring to the actual use of the fingerprinting technology?

01 29 56

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A. Q.

Yes. And at this time, this is 2007,

early 2008, I think your testimony was that the only fingerprinting vendor that Viacom was working with in a production capacity at that time was Auditude?

01 30 09

15 16 17 18 19

A. Q. A.

Yes . Okay. But -- but -- can I elaborate on

that a 1 ittle bit?

01 :30 ·23

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Q. A.

Sure. Even though it was just

Auditude , it was obvious that we were going to have other partners in this area. We have a lot of different content work flows.
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01 :30 :30

25

Content moves around the

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d

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L'ARCHEVESQUE organization a lot. So what we did was

put a plan together to accommodate these other -- you know, the possibility of having these other partnerships. And that

5 6 7 8 9

approach is what I'm referring to as our standard work flow. Q. I see. But at this time that

work flow was really only being implemented in a production capacity with Auditude, correct? A. Q. Yes, that's correct. So I think you testified that

01 30 49

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Viacom ultimately decided to start using the YouTube fingerprinting technology in Q2, '08? MR. PLATZER: Objection.

01 31 07

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Mischaracterizes the witness's prior testimony. Q. Okay. Let me ask it this way. That's a fair

01 31 19

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MR. WILLEN: objection. Q.

When did Viacom decide to start

using the fingerprinting technology? A. I don't know specifically when

01 :31 :25

25

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00c

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L'ARCHEVESQUE that decision was made to start using the YouTube technology. Q. But regardless of when the

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decision was made, YouTube -- Viacom, started using the technology in Q2 '08? A. Yes. That's when it was in full

implementation, yes. Q. So as of Q2 '08, what was

01 32 02

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Viacom's understanding of how the fingerprinting technology worked? A. Q. Sorry. Sure. Restate that again. At the time that Viacom

started using the YouTube technology, how did it work? A. The general matching technology

01 32 12

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seemed okay. Q. Was it Viacom's understanding

that the technology was screening videos on YouTube as they were being uploaded to the system? A. Q. A. Yes. And did Viacom -And they were also going to go

01 :32 :24

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01 :32 :36

25

back and scan everything else that had

·m '

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]
8116d79e-2645-43bc-8dfe-e5fc52d5d00d