Viacom International, Inc. et al v. Youtube, Inc. et al
Filing
377
DECLARATION of ANDREW H. SCHAPIRO in Support re: 177 MOTION for Summary Judgment Regarding Applicability of the DMCA and on Plaintiffs' Inducement Claims.. Document filed by Youtube, Inc., Youtube, LLC, Google, Inc.. (Attachments: # 1 Exhibit 110 Part 6, # 2 Exhibit 111 - 134, # 3 Exhibit 136 - 146, # 4 Exhibit 147 Part 1, # 5 Exhibit 147 Part 2, # 6 Exhibit 148 - 155, # 7 Exhibit 156 - 161, # 8 Exhibit 162 - 198)(Schapiro, Andrew)
Schapiro Exhibit 111
Schapiro Exhibit 112
Schapiro Exhibit 113
Schapiro Exhibit 114
Comedy Central clips back on YouTube
Page 1 of 1
Comedy Central clips back on YouTube
By Nate Anderson | Last updated November 1, 2006 10:30 AM Comedy Central clips aren't leaving YouTube for good. Viacom, Comedy Central's corporate parent, has confirmed that it wants to find some way to keep the clips available, and has apparently given the green light for YouTube to put the material back up. No deal between the two firms has yet been done, but it sounds like one is imminent. Last week, the company asked YouTube to pull many copyrighted clips of The Daily Show, The Colbert Report, and other Comedy Central properties, and many of them were taken down. Numerous short clips did remain available on the site, fueling speculation that Viacom was only concerned about longer clips. YouTube fans responded immediately... using YouTube. One man posted a two-minute clip called "Why did Comedy Central assert copyrights now?" in which he wondered why Comedy Central had waited so long to act, and why they had chosen to do so now. Viacom told multiple media outlets yesterday in a statement that it was interested in finding a workable business model for making clips available on the Internet, so one can only assume that some sort of revenue-sharing deal is in the works like those that YouTube signed with several music labels. Last week's takedown notices may have represented legitimate concern about giving away too much content at once, or they might have been a bargaining device designed to show YouTube exactly how upset its users would be if all Comedy Central content was pulled. For now, at least, the clips are back--even the long ones, so get your Colbert fix on before Viacom has another change of heart.
Update
While our own searches showed that a huge array of Comedy Central content was still available on YouTube (including long clips of eight minutes or more), not all of the clips are available. It's not clear what criteria was used for the takedown requests, but some videos still remain down. Viacom and YouTube may be exploring a deal together, but their discussions have clearly not led to a total reinstatement of Comedy Central content.
http://arstechnica.com/business/news/2006/11/8126.ars
6/3/2010
Schapiro Exhibit 115
Page 2 of 3
10/31/06 NYPOST 89
Page 1
10/31/06 N.Y. Post 89 2006 WLNR 18893142 New York Post Copyright 2006 The New York Post. All Rights Reserved October 31, 2006 Section: TV Tuesday FAKE NEWS BACK ON YOUTUBE Don Kaplan JON Stewart and Stephen Colbert were back on the popular YouTube Web site, a day after nearly all of their clips had been removed. The video clearinghouse site, which Google bought last month for about $1.6 billion, is once again allowing clips from Stewart's show along with others produced by Viacom entities, such as Nickelodeon, BET and Comedy Central. What is missing are lengthy clips that encompassed entire episodes of "The Daily Show." Over the weekend, YouTube officials purged the site of clips of Stewart, his Comedy Central cohort Stephen Colbert and video from "South Park" after receiving a threatening legal letter from Viacom Friday. By yesterday it was understood that the media conglomerate had issues only with entire episodes - not selected "Like our peers in the media industry, we are focused on finding the right business model for professionally created content to be legally distributed on the Internet," Viacom officials wrote yesterday in a statement. "We want our audiences to be able to access our programming on every platform and we're interested in having it live on all forms of distribution in ways that protect our talented artists, our loyal customers and our passionate audiences." Until Google purchased YouTube, TV execs seemed to be okay with their shows ending up on the Web site. Many looked at it as free promotion. YouTube is the year-old Web site that offers countless snippets of television shows, films and home movies
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
https://web2.westlaw.com/print/printstream.aspx?rs=WLW10.05&ifm=NotSet&destination...
6/3/2010
Page 3 of 3
10/31/06 NYPOST 89
Page 2
from around the world. In the last few months, the site has run into more and more trouble with big companies that own the copyrights to some of the material that users have posted on it. ---- INDEX REFERENCES --COMPANY: WATER EN ENERGIEBEDRIJF ARUBA NV INDUSTRY: (Internet Audio & Video (1IN30); Digital Broadcasting (1DI81); Internet Technology (1IN39); Internet (1IN27)) Language: EN OTHER INDEXING: (BET; FAKE NEWS; NICKELODEON; VIACOM; VIACOM FRIDAY; WEB) (Stephen Colbert; Stewart) Word Count: 331 10/31/06 NYPOST 89 END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
https://web2.westlaw.com/print/printstream.aspx?rs=WLW10.05&ifm=NotSet&destination...
6/3/2010
Schapiro Exhibit 116
Schapiro Exhibit 117
Schapiro Exhibit 118
Schapiro Exhibit 119
Schapiro Exhibit 120
Schapiro Exhibit 121
Schapiro Exhibit 122
Schapiro Exhibit 123
From: Date: To:
"Cahan, Adam" ..Adam.Cahan@mtvn.com~
Thu, 6 jul 2006 23:45:14 -0400
"McGrath, judy" ..judy.McGrath@mtvstaff.com~, "Wolf, Michael" .. Michaei.Wolf@mtvn.com~ Subject: Update from the plane
You tube - we had a very deep conversation (over an hour) about the potential, the risk and why strategically it is so criticaL. They are very much in the "we need to buy it now mode"!!! Next steps: we are developing a rough model and they want to take it to the board next meeting (2weeks). Then go straight to youtube for an acquisition. i would say they are extremely serious about buying and only want to lose it once we are convinced we cannot make the number work (600m+).
T
rnl\li:lni:I\ITI/\1
\/1/\ nna 1 ': 1 ')')
Schapiro Exhibit 124
Schapiro Exhibit 125
Subject: RE: NCTA Board dinner From: "Freston, Tom" -:EX:/O=VIACOM/OU=MTVUSNCN=RECIPIENTS/CN=FRESTONT
;:
To: Cc:
McGrath, Judy
Date: Thu, 20 Jul 2006 23:48:54 +0000
I gather that the YouTube valuation from your guys only gets you to $500-600MM? Brian is interested, eh?
-----Original Message----From: McGrath, Judy Sent: Wednesday, july 19, 2006 8:24 PM
To: Browning, Nicole - MTVN; Freston, Tom Cc: Wolf, Michael Subject: NCTA Board dinner
Sent from my BlackBerry Wireless Handheld
Schapiro Exhibit 126
Schapiro Exhibit 127
Schapiro Exhibit 128
Schapiro Exhibit 129
Schapiro Exhibit 130
Schapiro Exhibit 132
1
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DI STRICT OF NEW YORK
VIACOM INTERNATIONAL, INC., COMEDY
PARTNERS, COUNTRY MUS IC
TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVI S ION, LLC,
Plaintiffs,
NO. 07-CV-2203
vs.
YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC.,
Defendants.
VIDEOTAPED DEPOSITION OF ERIK FLANNIGAN NEW YORK, NEW YORK THURSDAY, OCTOBER 16, 2008
BY: REBECCA SCHAUMLOFFEL, RPR, CLR
JOB NO. 16002
2
1
2 3
4
OCTOBER 16, 2008
9:30 a.m.
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6
VIDEOTAPED DEPOSITION OF ERIK FLANNIGAN, taken at the offices of
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WI LSON, SONSINI, GOODRICH & ROSATI, 1301
Avenue of the Americas, New York, New York, pursuant to notice, before REBECCA
SCHAUMLOFFEL, CLR, RPR.
10
11
12
13
14
15
16
17 18
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20
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25
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New Yark 10022 (2 I 2)705-8585
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1
2
A P PEA RAN C E S:
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4
FOR THE PLAINTI FFS VIACOM
5
6 7
INTERNATIONAL, INC.:
SHEARMAN & STERLING LLP By: JOHN GUELI, ESQ. By: KRISTIN FITZMAURICE, ESQ. 599 Lexington Avenue New York, New York 10022
(212) 848-4744
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9
j gueli@shearman. com kfi tzmaurice@shearman. com
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11 12
FOR THE DEFENDANTS YOUTUBE, INC.,
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14
YOUTUBE, LLC and GOOGLE, INC.: WILSON SONSINI GOODRICH & ROSATI By: DAVID H. KRAMER, ESQ.
CAROLINE WILSON, ESQ.
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650 Page Mill Road Palo Alto, California 94304 (650) 849-3311
Dkramer@wsgr . com
Cwilson@wsgr. com
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ALSO PRESENT:
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Michelena Hallie, MTV Networks
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Manuel Abreu, Videographer
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DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New York 10022 (212)705-8585
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1
FLANNIGAN
2
was Exhibit 2, right?
A.
Q.
3
4
Agreed.
Let l S take a quick look at
Okay.
The date on this
5 6
7
11:28:25
Exhibi t 2.
A.
Q.
8
transmis sion, by the way, is March 25,
9
2007 ?
10
11
12
11:28:34
A.
Okay.
MR. GUELI:
To
Mr. Flannigan?
MR. KRAMER:
13
14
You are
I
absolutely right, counsel.
15 16
17
11:28:42
apologize.
Q.
The document as it was sent
to you is March 25th, 2007?
A.
Q.
18
Um-hum.
The spreadsheet shows a
19
20
21
11:28:49
property,
a URL?
A.
Q.
a
clip
title,
a
user
name and
22
23
24
Um-hum.
Are the
all capital ti tles
MTV
under the property column shows on
11:29:07
25
Networks?
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
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1
FLANNIGAN
2 3
4
A.
Q.
They are not.
Some are.
Do you recognize them?
Some are.
A.
Some aren't.
5 6
7
11:29:12
Q.
Which are and which are not,
if you wouldn l t mind?
A.
Freak Show, Naked Truck --
8
well
MR. GUELI:
9
Which is which?
10
11 12
3
11:29:20
Q.
Which is which?
A.
Oh, sorry.
The first two,
Good God and Baxter & McGuire were
14
digi tally only original. They never were on air. Freak Show was on air.
11:29:33
Naked Trucker was on air.
Shatner was
15
16
17 18
on air.
Mencia.
Q.
Sarah Silverman was on air.
Mind of
Halfway Home was on air.
I think that's it.
Those are all on air on MTV
19
20
21 22
11:29:56
Networks?
A.
Q.
Yes.
Do you recognize the user
23
24
name, Thatsfunny?
A.
I do not.
25
11:30:05
Q.
How about the user name,
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New Yark 10022 (212)705-8585
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FLANNIGAN
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Thatisalsofunny?
A.
Q.
I do not.
You see that the properties
5 6
7
11:30:13
were at one time on YouTube?
MR. GUELI:
Where are you
look at, counselor?
MR. KRAMER:
8
I am looking at
9
the totals.
11:30:30
It is unfortunate -Is there Bates
10
11
MR. GUELI:
number?
MR. KRAMER:
12
I am look at
13
14
Bates number 65
sorry.
Okay.
'695799.
11:30:36
A.
MR. GUELI:
15 16
17 18
It doesn l t appear to be a
I think you will find and I
YouTube URL on the list, though, right?
Q.
19
would like you to confirm this for me
20
21 22
11:30:45
tha t in each place where the URL column
says no longer up, that in the totals
column, for views to date column, later
23
24
on in the page I was referencing, there
is a site reference to YouTube?
25
11:31:02
A.
I am not sure what the
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New Yark 10022 (2 I 2)705-8585
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FLANNIGAN
2 3
4
correlation is though.
I know where
you are pointing to, this number, but I
don't know what" no longer up" means
5
6
11:31:10
honestly.
Q.
Well, as of March 25, 2007,
7
8
that's after the YouTube takedown
notice that Viacom sent in early
February of 2007, right?
9
10
11
11:31:21
A.
Is March 25th after that
date?
Q.
12
Yes.
We can all represent that.
I think we can all agree.
13
14
A.
Q.
15 16
17
18
11:31:28
So, is it your under standing that at
one time these properties were being
virally marketed by Viacom on YouTube?
A.
Q.
I honestly don't know.
Do you recogni ze those other
19
20
21 22
11:31:47
sites that are listed in
for whom
URL i S appear as sites on which MTVN
would virally market content?
A.
23
24
Some of them.
Some of them,
I've not heard.
25
11:32:01
Q.
I note for Naked Trucker,
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
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FLANNIGAN
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Q.
How
many
videos in total
have you uploaded to YouTube?
A.
Somewhere
in the five to six
they?
5
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14:33:46
range.
Q.
What were
A.
They were my
friend,
Madi
8
Diaz,
a
musician
Some
who my
wife is the
9
manager of.
14:33:57
performances that she
10
11 12
had given.
Q.
Did you have the
right to
share those clips through the YouTube
13
14
service?
A.
I
did.
gave you those
15
14:34:00
Q.
Who
rights?
16
17 18
A.
Q.
Madi
Why
herself.
did you upload those
video clips to YouTube?
A.
19
I uploaded
those clips to
20
21 22
14:34:10
YouTube so Madi
could see performances
that
I had
Q.
shot for her.
So
23
24
this is videos of performances of Madi Diaz that you shot
yourself?
14:34:21
A.
25
Correct.
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
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FLANNIGAN
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Q.
And you then uploaded those
3
4
performances to YouTube?
A.
That l S correct.
Did any of those videos
5
6 7
14:34:27
Q.
infr inge any third-party' s copyr ights?
MR. GUELI:
Obj ect to the
8
form.
A.
9
To the best of my knowledge
10
11 12
14:34:36
as Madi is the songwriter and owns her
performance and granted me the right to do it and knew I was putting them up on
13
14
YouTube, no.
Q.
Did you -
so, is it your
15
14:35:08
testimony that the only videos that you have uploaded to the YouTube service
16
17 18
are videos of Madi Diaz l s concerts?
A.
Five of the six were or four
19
of the five.
14:35:20
Q.
One
of them is not.
20
21 22
What
Amy
Do
is the sixth?
Winehouse.
Amy
A.
Q.
you know
Winehouse?
23
24
A.
Q.
I
don't.
So, do you have any reason
25
14:35:27
to -- did you have the rights to upload
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
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Amy Winehouse footage to the YouTube
3
4
service?
A.
Probably not.
When did you upload the Amy
5
6 7
14:35:33
Q.
Winehouse clip to the YouTube service?
A.
Q.
Some time in 2007.
8
But you represented to
9
YouTube that you had the authority to
10
11 12
14:35:50
upload that clip when you did, right?
A.
Q.
I did.
So you lied to YouTube?
I interpreted it as
13
14
A.
something that I -- I wouldn't say I
15
14:36:07
lied.
I would say I gave the
I
16
17 18
represented that I could represent the copyright and there is some copyright
of that recording that I actually
probably do own because I shot the
19
20
21 22
14:36:17
footage.
So, whether the complete
copyright story behind that clip was
answered by the question that YouTube
asked me, that, I don't know.
Q.
23
24
Did you upload Madi Diaz
25
14:36:29
video clips to other video sharing
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New Yark 10022 (2 I 2)705-8585
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FLANNIGAN
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services?
A.
Q.
I did.
To like what?
5 6
7
14:36:33
A.
Q.
vimeo.
Is that a Viacom service?
A.
Q.
No.
Did you upload Madi Diaz
8
9
video cl ips to viacom services?
10
11 12
14:36:39
A.
Q.
Never.
Why not?
A.
No need.
Not necessary.
13
14
Didn't cross my mind.
Q.
Would the Madi Diaz videos
15
14:36:51
that you uploaded to You
Tube pass the
16
17
18
screening requirements of
AddictingClips?
A.
Q.
Sure.
Would it pass the screening
19
20
21 22
14:36:57
requirements at iFilm?
A.
Q.
I assume so, yes.
Do you know if any
23
24 25
third-party publisher has the rights to
any of the Madi Diaz content that you
14:37:07
uploaded to YouTube?
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
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is an E-mail from Adam Cahan to you
dated February 5, 2007.
3
4 line, "ours?"
6 7
The subj ect
5 15:28:32 Do you recall receiving
this?
A.
Q.
Not necessarily, no.
8
This was an E-mail sent from
9
Mr. Cahan l s work address to you and
15:28:42
Caleb Weinstein at your work addresses,
10
11
right?
A.
Q.
12
Yes.
And Mr. Cahan is wondering
13
14
if a particular clip on the YouTube
15
15:28:51
service is owned by Viacom, correct?
A.
16
17 18
I presume that's what "ours"
means.
Q.
Tha t's the reasonable
19
interpretation of what he said there,
20
21
22
15:28:57
right?
A.
Q.
Agreed.
The URL refers to a video on
23
24
the YouTube service?
A.
It would appear so, yes.
25
15:29:04
Q.
Did you actually view this
805 Third Avenue, New
DAVID FELDMAN WORLDWIDE, INC. York, New York 10022 (212)705-8585
259
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FLANNIGAN
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video?
A.
Couldn i t tell you.
MR. KRAMER:
Let i S have this
5
6
15:29:15
marked as Exhibit 1 6, please.
(Whereupon, the
aforementioned two-page document
7
8 9
was marked as Flannigan Exhibit 16
for identification as of this date
10 11
12
15:29:32
by the Reporter.)
Q.
Mr. Flannigan, Exhibit l6 is
a screen shot of the page whose URL
13
14
matches the URL in the E-mail Mr. Cahan
sent you which is Exhibit 15.
It is a
15 16
17
18
15:29:42
page on YouTube for the YouTube video
ID IHDR, all caps, HDRtaUGGl lw.
I
printed this off the internet a couple
of days ago.
19
Does viewing this screen
20
21 22
15:30:03
shot refresh your recollection of
viewing the video that Mr. Cahan sent
you to look at?
A.
Q.
23
24
It does not.
You were as ked by Mr. Cahan
25
15:30:12
to view this video in the scope of your
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
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employment; is that correct?
A.
Q.
3
4
As was Caleb Weinstein, yes.
Do you recall making any
5
6 7
15:30:19
determina tions as to whether the video
clip accessible through this web page
was Viacom work?
8
9
I honestly don i t recall doing such things.
A.
10
11
15:30:28
Q.
As you sit here today, does
it appear to be a Viacom work?
A.
12
Is the actual video content
13
14
Viacom content?
Q.
Yes.
It is clearly something from
15
15:30:38
A.
16
17 18
South Park. That much I can tell you.
Q. And do you know whether this
clip was authorized to be on YouTube?
A.
19
Based on the faulty aspect
20
21
15:30:51
ratio, I would guess no.
Q.
What information would you
22
need to be conclusive about that?
A.
23
24
I mean, conclusive is a high
bar.
15:31:04
The fact that this is missing
25
references to South Park, the
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
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FLANNIGAN
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description that goes with the clip
makes no sense and doesn i t appear to
come with it.
It is sort of missing
5
6
15:31:19
the standard metadata of the things we
were trying to promote.
So my assessment of this,
7
8
just looking at it, I don't know what
Todd n Tyler is personally.
I don't
9
10
11 12
15:31:33
know
VH-l classic, I am a little
curious as to what that means.
So I
would probably need to find out what
the reference to VH-l classic is here
13
14
because that is kind of a disconnect
15 16
17 18
15:31:44
wi th the fact that it is Comedy Central
content.
But most of what I see here
suggests that is it is unauthorized.
Q.
Okay.
So can you explain to
19
me why, if you perceived this to be
20
21
22
15:31:58
unauthorized, it would remain up on the
YouTube service after Mr. Cahan sent
you an E-mail asking whether it was
yours in February of 2007?
MR. GUELI:
Obj ect to the
23
24
25
15:32:08
form.
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New York 10022 (2 I 2)705-8585
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FLANNIGAN
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A.
Q.
Yes, I don't know why.
So if you saw Exhibit 16
today, would you send You
Tube a
5
6 7 8 9
15:32:23
takedown notice for the video at
Exhibit l6?
MR. GUELI:
Obj ect to the
form.
A.
Would I do that, no.
10 11 12 13
14
15:32:29
Q.
Would you alert someone to
the presence of this seemingly
unauthorized video on YouTube?
A.
I mayor may not.
I
generally assume that that work is
15 16
17 18
15:32:43
being done without me affirmatively
flagging videos.
Q.
Can you tell me why
Mr. Cahan would have -- do you have any
idea as to why Mr. Cahan would have
19
20
21 22
15:32:55
sent you an E-mail asking you whether
to make a determination as to whether this was Viacom content in February of
23
24
2007 ?
A.
I have no idea why he picked
25
15:33:04
this clip out.
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
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Q.
Do you know why Mr. Cahan
would be asking you, though, in
February of 2007, whether a particular
15: 33: 32
5
6 7
piece of content on the YouTube service
was Viacom' s?
A.
Q.
Me versus someone else?
8
Yes.
Wha t knowledge do you
9
have
15:33:38
A.
10
11
12
He is looking at purely that
it is a South Park clip and that South
Park is Comedy Central property, and I
am the Comedy Central digital person. I doubt it would be any more than that.
13
14
15
15:33:48
Q.
And why would he send it to
16
17 18
Mr. Weinstein, if you know?
A.
Q.
He works for Comedy Central.
Okay.
What was Mr.
19
Weinstein l S role at Comedy Central?
20
21 22 23 24 25
15:33:56
A.
He ran our business
development and s tra tegy team.
Q.
Is he still there?
A.
Q.
No.
Do you know where he is?
I believe he is at
15:34:01
A.
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, NewYark, NewYark 10022 (212)705-8585
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FLANNIGAN
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Discovery.
Q.
3
4
Discovery Television?
A.
Networks, yes.
5 6
7
15:34:05
Q.
Station.
Network.
MR. KRAMER:
Let's have this
one marked as 17.
(Whereupon, the
aforementioned document bearing
8
9
10
11
Bates No. VIA00223432 was marked
as Flannigan Exhibit 17 for
12
identification as of this date by
the Reporter.)
Q.
13
14
Taking a look at what's been
15
15:35:03
marked as Exhibit 17, Mr. Flannigan,
bear s Ba te s number VIAO 02 23432.
16
17
It is
an E-mail exchange between you and
18
Mr. Herzog, you identified previously
19
as your boss, right?
15:35:16
A.
Q.
20
21
Correct.
This is dated July 16, 2007.
22 23
24
The subj ect in your E-mail to
Mr. Herzog, the subject is "Nobody Does
Dylan Like Blanchett" and it contains a
25
15:35:29
YouTube URL wi th the video I D
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
265
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FLANNIGAN
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4
VyWgzUGOliw.
Do you remember forwarding
thi s video to Mr. Her zog?
5
6 7
15:35:52
A.
Q.
I do.
Do you know what video is
accessible or was accessible at this
YouTube URL?
A.
8 9
Yes, I believe it was a long
10
11
12
15:35:59
scene from the film I l m Not There,
prior to the release of the film 1'm
Not There.
Q.
13
14
You sent this E-mail to
Mr. Herzog from your work E-mail
15 16
17 18
15:36:11
address, right?
A.
Q.
Correct.
You sent it to Mr. Herzog 's
work E-mail address?
A.
19
Correct.
Do you know whether the
20
21 22
15:36:15
Q.
video clip from the movie I i m Not There
was authorized to be on YouTube?
A.
Q.
23
24
I don i t but assume it was.
Why did you assume that it
25
15:36:30
was?
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
266
1
FLANNIGAN
2
A.
Because it was a sort of in
3
4
the pre-promotion window for that film.
Q.
So you didn't know whether
5
6 7
15:36:38
it was or was not authorized at the
time that you forwarded it to
Mr. Herzog?
A.
Q.
8
Correct.
Was it a Viacom -- sorry,
9
10
11 12 13
14
15:36:46
was the
does Paramount Pictures have
any rights to the movie I Am Not There?
MR. GUELI:
Obj ect to the
form.
A.
I don i t know.
They might
15 16
17
18
15:36:59
have international distribution for all
I know.
Q.
I am not sure.
Do you know if this was
content uploaded to the YouTube service
by someone at Viacom?
19
20
21 22
15:37:06
A.
I don't but it is extremely
unlikely that it was.
Q.
Why do you say that?
23
24
A.
Because it has nothing to do
with any of our properties, at least
25
15:37:17
domestically, or what I know about the
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New Yark 10022 (2 I 2)705-8585
267
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FLANNIGAN
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film.
Q.
So you did watch this video,
4
right?
15:37:22
A.
Q.
5
6 7
Um-hum.
And as you sit here today,
you don't know whether it was on
YouTube wi th the authorization of the
8
9
appropriate rights holder?
10
11 12
15:37:36
A.
Q.
Yes, I don't know.
You are just making an
assumption?
A.
13
14
I told you the reasons why I
thought.
15:37:41
You asked me if I thought it
I did.
15 16
17
was at that time.
Q.
So if the clip was
unauthorized, do you believe that you
engaged in copyright infringement by
18
19
watching this from your work computer
20
21 22
15:38:02
at Viacom?
MR. GUELI:
A.
Q.
Obj ection.
I have no idea.
23
24
Do you believe you engaged
in copyright infringement by virtue of
25
15:38:10
forwarding this clip, assuming it was
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
268
1
FLANNIGAN
2
unauthorized, to Mr. Herzog?
MR. GUELI:
Obj ection to
3
4
form.
15:38:14
A.
Q.
5 6
7
Again, I have no idea.
Weren't you -- strike that.
Did you have something you
8
wanted to add, Mr. Flannigan?
A.
9
No thanks.
MR. KRAMER:
10 11
12
15:39:14
Just hang on a
second before we give that to the
wi tness.
Q.
13
14
Mr. Flannigan, are you aware
tha t Viacom has used the pr i va te video
15:39:23
functionali ty on YouTube?
15
16
17
18
MR. GUELI:
Sorry, could you
read that question back?
(Whereupon, the
aforementioned question was read
19
20
21 22
15:39:34
back by the Court Reporter.)
MR. GUELI:
Obj ect to the
form.
Q.
23
24
Are you aware of any people
at Viacom have used the private video
25
15:39:41
functionality tool at YouTube?
DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New Yark 10022 (2 I 2)705-8585
302
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FLANNIGAN
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A.
Yes, it is a comedian.
Q. So you've subscribed to that
comedian i s channel on YouTube?
16:21:51
A.
Q.
5
6 7 8 9
Correct. Correct.
And under the
favorites section under the II
channel page, those are videos that you
have watched on the YouTube service?
10
11
12
16:22:06
A.
Q.
Correct.
And those are videos that
you have favori ted on the YouTube
13
14
service, correct?
A. Correct.
16:22:10
Q.
15 16
17
18
So the "Radiohead play the
Smi ths video, the Radiohead - Ceremony
video, the Arcade Fire
Neon Bible
Live in an elevator video, and the
Guided By Voices - Teenage FBI videos,
19
20
21
16:22:23
those are your favorites on YouTube?
A.
Those are favorites on
22
YouTube.
Q.
23
24
That you have identified as
favorites?
16:22:28
A.
25
Yes.
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
303
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FLANNIGAN
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Q.
Earlier I asked you how many
views you believed the Amy Winehouse
video received that you had uploaded.
5
6 7
16:22:37
Can you tell by looking at
this Exhibi t 19 how many views it was
as of the date the page was printed?
A.
Q.
8
50,104.
Do you have any reason to
9
10
11
12
16:22:53
believe that the videos that you
favori ted in your ll account were
authorized -- were uploaded to the
13
14
YouTube service with the authori za tion
of the rights holders?
15
16:23:01
MR. GUELI:
Obj ection to the
16
17
form.
A.
Q.
They may have been.
Do you know one way or the
18
19
other?
16:23:07
A.
Q.
I don't.
20
21 22 23
24
The channel page for the
account, your account, indicates
that the account was created on May 16,
2006.
16:23:35
Do you see that?
25
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New Yark 10022 (212)705-8585
304
1 2
FLANNIGAN
A.
Q.
I do.
3
4
Is that about when you
started using the YouTube service under
5
6
16:23:40
the name_
A.
Q.
Yes.
Do you know whether you used
7
8
the YouTube service prior to that time
wi thout a user name?
9
10
11
12
16:23:50
A.
Q.
I did.
And I am sorry, it was
without a user name at the time prior
13
14
to
A.
You asked the question and I
15
16:23:57
said yes.
Q.
16
17 18
So the reason you created
account was to upload
the
videos; is that correct?
A.
19
No, I think the first use of
20
21 22
16:24:11
it was actually to subscribe to
Clell tickle.
MR. KRAMER:
I need to take
23
24
a quick break and look back on
some of the questions that I asked
25
16:24:40
that were instructed not to answer
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (2 I 2)705-8585
333
1
FLANNIGAN
2
take on it.
I have the document to
3
4
show you about that we are actually
going to be fine, I think, with respect
5 6
7
16:54:40
to your requested departure time.
I
hope.
A.
Okay.
8 9
(Whereupon, the
aforementioned document bearing
10
11
Bates No. VIA00225564 and '65 were
marked as Flannigan Exhibit 23 for
identification as of this date by
the Reporter.)
Q.
12
13
14
Exhibit 23, Mr. Flannigan,
15
16:55:17
is an E-mail exchange provided to us by
Viacom in this action bears Bates
16
17
18
numb e r V I A 002255 64 to' 65 .
two-page document.
It is a
You are on the
19
earliest in time and the latest in time
20
21 22 23
24
16:55:33
E-mails in this thread.
And it is -
why don't I ask you, what is this
document?
A.
I believe this is further
follow-up to the two previous E-mails
25
16:55:46
tha t you have produced.
And Angela is
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
334
1
FLANNIGAN
2
pulling, probably pursuant to my
3
or ig inal comment, stream data, uniques
4
da ta and page-view data.
16:56:03
Given that it
5
6 7
is stream data, I can now sort of
verify for you this would be Amniture
internal reporting and characterizing kind of what happened pre and
8
9
post-takedown in terms of our weekly
10
11 12
16:56:16
averages.
Q.
You write in the top E-mail
"The question is really down to what
13
14
measurement matters as any correlation
to You
Tube is specious."
Do you see that?
A.
Q.
I do.
15 16
17 18
16:56:24
You were the one that typed
that?
A.
I was.
19
20
21
22
16:56:29
Q.
So you knew when you typed
tha t what the word specious meant,
right?
A.
Q.
23
24
Then, I did.
So as of March 7, 2007, it
25
16:56:36
was your belief that Mr. Dooley's
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New York 10022 (212)705-8585
335
1
FLANNIGAN
2 3
4
statement correlating 90% in traffic on
viacom's comedy sites to the You
Tube
takedown was specious, right?
5
6 7
16:56:46
MR. GUELI:
Obj ection to the
form.
A.
I think there is a broader
8
point in this statement which is that
that correlation, or any correlation,
9
10 11
12
16:57:00
an abili ty to correlate is specious.
Q.
Mr. Flannigan -- sorry, are
you guys set?
MR. GUELI: Yes.
MR. KRAMER: I didn't mean
13
14
15 16
17 18
16:57:41
to interrupt you guys.
Q.
What is your understanding,
Mr. Flannigan, of why Viacom is suing
YouTube?
A.
19
My -- I would characterize
20
21 22
16:58:05
it as Viacom is suing YouTube over the preponderance of our video material
appearing in great volumes and at great play counts on YouTube without our
affirmative authorization.
23
24
25
16:58:22
Q.
So you think that YouTube
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
336
1
FLANNIGAN
2 3
4
doesn't sufficiently respect Viacom' s
intellectual property copyrights in
Viacom's content?
16:58:34
MR. GUELI:
Obj ect to the
5
6 7 8 9
form.
Are you asking -MR. KRAMER:
I am just
asking him if that's a fair
summary of what he jus t said.
10
11
16:58:40
A.
You are asking me if that i s
what I thought as opposed to asking me
why Viacom is suing YouTube?
Q.
12 13
14
Is it fair to say that you
believe that YouTube has failed to
15
16:58:49
sufficiently respect Viacom' s
16
17 18
intellectual properties rights in its
content?
MR. GUELI:
Sorry, could you
19
read that back, please?
20
21
22
16:58:56
(Whereupon, the
aforementioned question was read
back by the Court Reporter.)
MR. GUELI:
23
24
You say you
there, you are asking personally
25
16:59:19
hi s view?
DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585
Schapiro Exhibit 133
Schapiro Exhibit 134
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