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. ) NO. 07-CV-2103 ) 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 KENT WALKER PALO ALTO, CALIFORNIA THURSDAY, DECEMBER 17, 2009 BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CLR CSR LICENSE NO. 9830 JOB NO. 18312

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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DECEMBER 17, 2009 9:05 a.m.

VIDEOTAPED DEPOSITION OF KENT WALKER, MAYER BROWN, Two Palo Alto Square, Suite 300, Palo Alto, California, pursuant to notice, and before me, ANDREA M. IGNACIO HOWARD, CLR, RPR, CRR, CSR License No. 9830.

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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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: MICHAEL DESANCTIS, Esq. SARAH MAGUIRE, Esq. 1099 New York Avenue, NW, Suite 900 Washington, D.C. 20001 [phone] [e-mail]

FOR THE ENGLISH PREMIER LEAGUE: PROSKAUER ROSE, LLP By: GIL N. PELES, Esq.

2049 Century Park East, Suite 3200 Los Angeles, California 90067-3206 [phone] [e-mail]

FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: MAYER BROWN, LLP By: ANDREW H. SCHAPIRO, Esq.

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

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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APPEARANCES

(Continued.)

ALSO PRESENT:

Catherine Lacavera, Google, Inc. Stewart Pettigrew, Videographer.

---oOo---

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT PALO ALTO, CALIFORNIA THURSDAY, DECEMBER 17, 2009 9:05 a.m.

THE VIDEOGRAPHER:

Today's videotaped

deposition of Kent Walker is taken on December 17, 2009, at Mayer Brown, at Two Palo Alto Square, Suite 300, 3000 El Camino, Palo Alto, California. In the matter of Viacom International, Inc., and others, The Football Association Premier League, Ltd., and others versus YouTube, Inc., and others. Cases No. 07-CV-2103 and 07-CV-3582 in the United States District Court for the Southern District of New York. My name is Stewart Pettigrew. I represent

David Feldman Worldwide, located at 600 Anton Boulevard, Suite 1100, Costa Mesa, California. We are now commencing at approximately 9:05 a.m. Will all present please identify themselves, beginning with the witness. THE WITNESS: I'm Kent Walker, general

counsel of Google, Inc. MR. SCHAPIRO: Andy Schapiro from Mayer Brown

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT for the defendants. MS. LACAVERA: Catherine Lacavera, in-house

counsel at Google for Google and the witness. MR. PELES: Gil Peles from Proskauer Rose on

behalf of The Premier League plaintiffs. MS. MAGUIRE: on behalf of Viacom. MR. DESANCTIS: And Michael DeSanctis, Sarah Maguire, Jenner & Block,

Jenner & Block for the Viacom plaintiffs. THE VIDEOGRAPHER: Thank you.

Please swear in the witness.

KENT WALKER, having been sworn as a witness, testified as follows:

THE VIDEOGRAPHER:

Please begin.

EXAMINATION BY MR. DESANCTIS MR. DESANCTIS: A Q Good morning. Could you please state and spell your name Q. Good morning.

for the record? A Sure.

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DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT A It's approximately three years ago now, so

the chronology, in my mind, is not as clear as it could be. Q A Understood. But I remember a couple of conversations with

Mr. Fricklas about our continuing efforts to ensure that unauthorized content was not on the YouTube site. Our work to -- was ongoing at the time to implement both Audible Magic or continuing the implementation of Audible Magic and to develop our own tools to address these issues, which we thought would extend to -- to video content and be better than tools that are out there in the marketplace, and I remember him raising concerns about when this would happen. That was --

that was the general back and forth of the conversation. Q Just to be clear, are -- are you suggesting

that you offered implementing Audible Magic for Viacom? A No, I believe Audible Magic was already being

implemented on the YouTube site at the time of this conversation, but that it was focused on audio content, rather than the video content that would have been most -- of most interest to Viacom.

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT Q Do you know whether you ever offered the

Audible Magic feature to Viacom? A The -- the conversation I had with

Mr. Fricklas was about our development of video tools, which we had just started to put Google engineers against, and we had some very accomplished search engineers at Google, and this is essentially a search problem, because you're -- the creation of content identification requires a creation of a -- of a vast database of information against, which you need to search extraordinarily quickly, and in -- with regard to a lot of transmutations of content, so it's -- it's a remarkably complicated search, an algorithmic process. We had some of the best people in the world doing that, and we were in the process of trying to really dig into the problem. The problem is -- is

difficult for music and even harder for video content because video content, which typically also has audio content associated with it, is much richer and larger, so you have a -- an exponentially larger database that you need to search against essentially, and you need to do this in a remarkably short amount of time. So that the -- the early assessments that we

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT were getting, as early as January and February that year, was that it might take days, hours -- hours or days to -- to run a search of a given piece of content against that database. That astonishingly in the course of six months was reduced to a matter of seconds so that it wouldn't interfere with the user upload. So this was

the conversation I was having with Mr. Fricklas and -and separately with Mr. Braverman, Allen Braverman, who is the general counsel of -- of The Walt Disney Company, with regard to our efforts to -- to implement these kinds of tools. Q I'm sorry. You spoke about an assessment or

Google getting assessments in early January, that it would take hours or days to run searches against a given piece of content. A I don't want to be precise on the time. I'm

not sure that's exactly what I said, or if it was, let me correct it. My understanding was that we were reviewing in early 2007, and I don't know whether that was January or February, I need to look more closely, or -- or if there are other documents that would refresh a recollection, that would be great, but we

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT were starting to study the problem of very high volume search in video and how to implement Content ID in that framework. So when I say "we," it was primarily

engineering teams from YouTube and Google or -- or a combined team working on this project. The concern was that the existing products on the marketplace were -- would not scale to a platform of YouTube's size even then, and it's become significantly larger since, and would not do a very good job. Would -- there would be a lot of problems It would

in separating wheat from chaff.

substantially comprise or destroy the user experience if a user had to wait for hours or days before they could upload or see a video, and that the technology was -- was buggy, and we thought we could do a substantially superior job, both for -- for video and for audio. Q And -- but during that time YouTube was using

Audible Magic; correct? A I believe that YouTube had been using Audible I don't

Magic, as of that time, and perhaps earlier. know when they would have started doing that. Q

Audible Magic is an audio fingerprinting

technology?

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT A It is. That's my understanding. Well, it --

it's a -- I'm not sure whether that's the company or the -- the brand name for the company's tool, but generally, yes. Q And do you recall, in these conversations, in

early 2007 with Mr. Fricklas, whether you ever offered to implement the Audible Magic fingerprinting for Viacom? A I don't remember one way or the other with What we did offer to

regard to Audible Magic.

implement was a much better audio and video content identification system for not just Viacom, but for all of the content providers. Q Well, but that -- what you're calling a

better solution didn't exist in February and January of 2007; did it? A Not in the fully formed shape that it had six

months later, no. Q A Q So Google was developing it at that time? Correct. And while Google was developing that --

while -- while Google was developing its own systems, it was also using Audible Magic at the time; correct? MR. SCHAPIRO: Objection; asked and answered.

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT THE WITNESS: As I -- again, I -- I believe

that YouTube had begun using Audible Magic for audio content, at some point in time, prior to the January/February date that we're talking about here. MR. DESANCTIS: Q. And during that

January/February time, you did not offer the Audible Magic solution to Viacom; correct? A I -MR. SCHAPIRO: Objection; asked and answered;

mischaracterizes the testimony. THE WITNESS: MR. DESANCTIS: Yeah. Well, I -- I don't want to --

I actually don't mean to be mischaracterizing the -THE WITNESS: MR. DESANCTIS: No, that's fine. -- testimony at all.

You said that you offered something better, which was still under development. Q My question is, during that time of

development, did you offer them the use of Audible Magic in the meantime? A Right. So there -- there are a number of layers there to peel back. Q Sure.

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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WALKER, KENT A One, I have no idea what other people --

there were a number of people in the company who were engaged with Viacom in a whole variety of context that I'm not familiar with. Q A offered. Understood. So I don't know what they may or may not have With regard to my conversation with

Mr. Fricklas, I don't remember whether Audible Magic came up, I don't remember whether he asked for it, I don't remember whether I offered it or didn't offer it. I just don't recall. The reason for that was that it was and still is my understanding that Audible Magic is more -while it's not a great tool, it relatively is more suited for audio content, music content, primarily, than is for video content. In part because of the --

the reasons we talked about before, that video is much more information dense, it's a much harder search problem, and that the -- the Audible Magic technology hadn't evolved in a way that would make it usable or useful for Viacom to -- to implement. There's another distinction as well, which is, music content is perhaps uniquely legally complex because of the number of overlapping and sometimes

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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WALKER, KENT inconsistent rights associated with it. There are a

wide number of different rights that are owned by the performer, the creator, the -- the publishers, the labels, the collecting societies in Europe, et cetera, and each of those entities can own multiple rights, which sometimes align and sometimes do not. As a result of that, there are complexities associated with that, which I believe the Audible Magic system had been optimized for, both in terms of the technological operation of the system and the assembly of a database, which was designed to track all of the -- the complex music rights associated with it. As the name Audible Magic itself suggests, it was a music tool, at least that was my understanding. MR. SCHAPIRO: for five minutes. THE VIDEOGRAPHER: Off the record. (Recess taken.) THE VIDEOGRAPHER: On the record. MR. DESANCTIS: Mr. Walker, before we just The time is 10:57. The time is 10:47. Let's -- let's take a break

took a short break, you were describing for me certain

450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

DAVID FELDMAN WORLDWIDE, INC.

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