The Football Association Premier League Limited et al v. Youtube, Inc. et al

Filing 276

DECLARATION of Elizabeth Anne Figueira, Esq. in Opposition re: 167 MOTION for Summary Judgment.. Document filed by The Music Force LLC, Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., The Football Association Premier League Limited, Robert Tur, National Music Publishers' Association, The Rodgers & Hammerstein Organization, Edward B. Marks Music Company, Freddy Bienstock Music Company, Alley Music Corporation, X-Ray Dog Music, Inc., Federation Francaise De Tennis, The Scottish Premier League Limited, The Music Force Media Group LLC, Sin-Drome Records, Ltd., Murbo Music Publishing, Inc., Stage Three Music (US), Inc., Bourne Co.. (Attachments: # 1 Exhibit 189, # 2 Exhibit 190, # 3 Exhibit 191, # 4 Exhibit 192, # 5 Exhibit 193, # 6 Exhibit 194, # 7 Exhibit 195, # 8 Exhibit 196, # 9 Exhibit 197, # 10 Exhibit 198, # 11 Exhibit 199, # 12 Exhibit 200, # 13 Exhibit 201, # 14 Exhibit 202, # 15 Exhibit 203, # 16 Exhibit 204, # 17 Exhibit 205, # 18 Exhibit 206, # 19 Exhibit 207, # 20 Exhibit 208, # 21 Exhibit 209, # 22 Exhibit 210, # 23 Exhibit 211, # 24 Exhibit 212, # 25 Exhibit 213, # 26 Exhibit 214, # 27 Exhibit 215, # 28 Exhibit 216, # 29 Exhibit 217, # 30 Exhibit 218, # 31 Exhibit 219, # 32 Exhibit 220, # 33 Exhibit 221, # 34 Exhibit 222, # 35 Exhibit 223, # 36 Exhibit 224 Part 1, # 37 Exhibit 224 Part 2, # 38 Exhibit 225, # 39 Exhibit 226, # 40 Exhibit 227 Part 1, # 41 Exhibit 227 Part 2, # 42 Exhibit 227 Part 3, # 43 Exhibit 227 Part 4, # 44 Exhibit 228, # 45 Exhibit 229, # 46 Exhibit 230, # 47 Exhibit 231, # 48 Exhibit 232, # 49 Exhibit 233, # 50 Exhibit 234, # 51 Exhibit 235, # 52 Exhibit 236, # 53 Exhibit 237, # 54 Exhibit 238, # 55 Exhibit 239, # 56 Exhibit 240, # 57 Exhibit 241, # 58 Exhibit 242, # 59 Exhibit 243, # 60 Exhibit 244, # 61 Exhibit 245, # 62 Exhibit 246, # 63 Exhibit 247, # 64 Exhibit 248, # 65 Exhibit 249, # 66 Exhibit 250, # 67 Exhibit 251, # 68 Exhibit 252, # 69 Exhibit 253, # 70 Exhibit 254, # 71 Exhibit 255, # 72 Exhibit 256, # 73 Exhibit 257, # 74 Exhibit 258, # 75 Exhibit 259, # 76 Exhibit 260, # 77 Exhibit 261, # 78 Exhibit 262, # 79 Exhibit 263, # 80 Exhibit 264, # 81 Exhibit 265, # 82 Exhibit 266, # 83 Exhibit 267, # 84 Exhibit 268, # 85 Exhibit 269, # 86 Exhibit 270, # 87 Exhibit 271, # 88 Exhibit 272 Part 1, # 89 Exhibit 272-2, # 90 Exhibit 272 Part 3, # 91 Exhibit 272 Part 4, # 92 Exhibit 272 Part 5, # 93 Exhibit 272 Part 6, # 94 Exhibit 272 Part 7, # 95 Exhibit 272 Part 8, # 96 Exhibit 272 Part 9, # 97 Exhibit 272 Part 10, # 98 Exhibit 272 Part 11, # 99 Exhibit 272 Part 12, # 100 Exhibit 272 Part 13, # 101 Exhibit 272 Part 14, # 102 Exhibit 272 Part 15, # 103 Exhibit 272 Part 16, # 104 Exhibit 272 Part 17, # 105 Exhibit 272 Part 18, # 106 Exhibit 272 Part 19, # 107 Exhibit 273, # 108 Exhibit 274, # 109 Exhibit 275, # 110 Exhibit 276, # 111 Exhibit 277, # 112 Exhibit 278, # 113 Exhibit 279, # 114 Exhibit 280, # 115 Exhibit 281, # 116 Exhibit 282, # 117 Exhibit 283, # 118 Exhibit 284, # 119 Exhibit 285, # 120 Exhibit 286, # 121 Exhibit 287, # 122 Exhibit 288, # 123 Exhibit 289, # 124 Exhibit 290, # 125 Exhibit 291, # 126 Exhibit 292, # 127 Exhibit 293, # 128 Exhibit 294, # 129 Exhibit 295, # 130 Exhibit 296, # 131 Exhibit 297, # 132 Exhibit 298, # 133 Exhibit 299, # 134 Exhibit 300, # 135 Exhibit 301, # 136 Exhibit 302, # 137 Exhibit 303, # 138 Exhibit 304, # 139 Exhibit 305, # 140 Exhibit 306, # 141 Exhibit 307, # 142 Exhibit 308, # 143 Exhibit 309, # 144 Exhibit 310, # 145 Exhibit 311, # 146 Exhibit 312, # 147 Exhibit 313, # 148 Exhibit 314, # 149 Exhibit 315, # 150 Exhibit 316, # 151 Exhibit 317, # 152 Exhibit 318, # 153 Exhibit 319, # 154 Exhibit 320, # 155 Exhibit 321, # 156 Exhibit 322, # 157 Exhibit 323, # 158 Exhibit 324, # 159 Exhibit 325, # 160 Exhibit 326, # 161 Exhibit 327, # 162 Exhibit 328, # 163 Exhibit 329, # 164 Exhibit 330, # 165 Exhibit 331, # 166 Exhibit 332, # 167 Exhibit 333 Part 1, # 168 Exhibit 333 Part 2, # 169 Exhibit 334, # 170 Exhibit 335, # 171 Exhibit 336, # 172 Exhibit 337, # 173 Exhibit 338)(Figueira, Elizabeth)

1/13/2010

King David

OUTSIDE HIGHLY CONFIDENTIAL COUNSELS EYES ONLY
--

UNITED

STATES

DISTRICT
OF

COURT YORK

SOUTHERN

DISTRICT

NEW

FiueirsDecI.Tsb
VIACOM INTERNATIONAL COUNTRY

INC.

COMEDY

PARTNERS TELEVISION
PICTURES

MUSIC PARAMOUNT and BLACK

INC.

CORPORATION

ENTERTAINMENT

TELEVISION

LLC

Plaintiff
vs.
No.

07CV-2103

YOUTUBE
and
10

INC.

YOUTUBE

LLC

GOOGLE

INC.
Defendants.

11

12

THE

FOOTBALL

ASSOCIATION BOURNE

PREMIER
et

LEAGUE
13

LIMITED
of

CO.
and

al.

on all

behalf others

themselves

similarly situated

14

Plaintiffs
15 16 vs. No.

07-CV-3582

YOUTUBE
and

INC.

YOUTUBE

LLC

G000LE

INC.
Defendants.

17

18

19

HIGHLY VIDEOTAPED

CONFIDENTIAL
OF

DEPOSITION FRANCISCO

DAVID

KING

20

SAN

CALIFORNIA

WEDNESDAY
21 22 23 24 25

JANUARY

13

2010

JOB

NO.

18545

1/13/2010

King David

DAVID

KING THE

SAN

FRANCISCO
just

CA

JANUARY
to say ask say that for

13
that
you

2010

WITNESS moment
rights

wanted
did

you

know
be

in

heated within
of

would
of

well of

your

to the

to

removal

video
of

from

site

based

on

you

know

one

second

content.

Im
lawyer
that.
10

not

actually

you

know
to

copyright
to speak to

and And

not this

really in
was be the that you logical from

position

know
thing
to

dont
do.

think
feel

that like have

would
the in the

actually
you

11

know

whatever
that But

expertise would
be

12

matter

would

be

13

inappropriate
BY MR.

at

that

level.

anyway

14

PLATZER
All right. we

15

Q.

Understood. broke
to to change the that had

16

Before discussing
from the

tape
Youlube

we

were

17

what

happens
and of we

videos

removes

18

service
about

were

just

finished

19

talking
A.

terms

service

violations.

20

Uh-huh. The that next

21

Q.

category

wanted
to

to

ask

about of

are

22

videos

are

removed

pursuant And
is

sort

formal that

23

DMCA takedown

request.

that

terminology

24

youre
A.

familiar with
Yes.

DMCA takedown

request

25

84

1/13/2010

King David

DAVID
Q.

KING

SAN

FRANCISCO know

CA the

JANUARY answer
but

13
to

2010
is

And
the

think colloquy
If

what
had
so

this

based
to

on

weve

far

just

want

confirm.

Youlube

received
and that

DMCA takedown takedown request
of

request did the the were or box

from not go

copyright through website
add this

owner

the

password

protected
could other

portion
to

Youlube
and say

that to

partners
YTU in

use

check if
it

words
such
as

traditional
10

DMCA takedown
that

request
video
the

letter
from

an

email

requesting

be

removed
the

11

Youlubes
owner
to the

service
be

would

video
be

that

content
and added

12

requested
YTU

removed

fingerprinted

13

partition
MR. THE

14

WILLEN WITNESS
of
it

Objection think information
does not of

to the

the

form. the if in on you

15

16

examine takedown
about

the

level

that

comes any

DMCA

17

request
the
to. It

include the

information
is

18

the

quantity

video
it

that

being
right

19

objected
at

simply just request

says of

have

20

some am

level

to
so.

takedown

this

and

21

and

doing
So

22

that to be

does able
is

not to

give

YouTube

sufficient whether being

23

information
that user

diligently
the

understand
for
it

24

upload
in

meets

criteria

25

included

fingerprint

database.

85

1/13/2010

King David

DAVID

KING
So as

SAN we

FRANCISCO
the

CA we

JANUARY discussed

13
was

2010
if

example
your

its

if

youre
based
and

making
on

claim of
short

copyright
of content take then this we
as

infringement
that

very

segment

in

video down

your no to

DMCA notice additional
be able to

simply says

video
not in

with

information
use that

are

position
file for

content

reference
BY
10

future

matching.

MR.

PLATZER
So is

Q.

the YTU

answer

no

Its

DMCA

notices

are

11

not

added

to MR.

the

partition
Objection
was.
as as

12

WILLEN
the

to

the

form.

The

13

answer

is

what
THE

answer
So

14

WITNESS
added

matter
the

of

course

15

they

are

not

automatically

to

fingerprint

16

database. The do we have the

17

criteria
from the

being

was

it

reviewed
that of

and

18

statement
are
as

that

right of

holder
that

19

that

they

claiming
to

entirety portion

piece

20

content
BY MR.

opposed

any

thereof.

21

PLATZER
Has

22

Q.

YouTube

ever on

added

removed notice
in

videos
the

to

23

the of

YTU

partition
use of

based
the

DMCA

absence

24

partner

password

protected

copyright

25

console

86

1/13/2010

King David

DAVID
three same an

KING

SAN or

FRANCISCO
eight the

CA

JANUARY
to

13

2010 the was

interfaces information
that

interfaces point

communicate
that to there

but

remains

interface
level of

allowed
to

rights
us.

holder

communicate

that BY

information

MR.

PLATZER
Are that you

Q.

familiar with
sent

the in

large

takedown

notice

Viacom

Youlube
Objection.

February of believe

2007
is

MR.
10

WILLEN
of

this

outside

the

scope if

the have

30b6

notice.

11

But answer. THE the BY

you

personal

understanding

you

can

12

13

WITNESS
was

As

you

know
that

as

reader

of

14

news
MR.

familiar with

event.

15

PLATZER And
what

16

Q.

again youve

think already

know

the

answer

to

this
the

17

based videos

on

testified
be

to

but

were
from

18

that
in

Viacom
its large

re

requested

removed

19

YouTube were

February 2007 by YouTube

takedown
for

notice

20

those

fingerprinted

blocking

21

purposes
MR. THE those

22

WILLEN WITNESS
notices

Objection
The to not

to

form. those

23

my knowledge
into

24

takedown

were

turned

25

fingerprinting

references.

95

1/13/2010

King David

DAVID
BY NR.

KING

SAN

FRANCISCO

CA

JANUARY

13

2010

PLATZER

Q.

Well

so

far

weve

been

talking
to

about

cases that
as

where
was

YouThbe

uses to the

Audible Youlube
all

Magic

query And were
as

video

uploaded

website. that

general
the

matter

were

videos

uploaded

to

Youlube

website

queried

against

Audible

Magics

databases

by Youlube
MR.

WILLEN

Objection

as

to

form.

Vague

as

10

to

time. THE

11

WITNESS
what
time

So

could

you

maybe

be

more

12

specific
BY MR.

about

frame

13

PLATZER
Okay.

14

Q.

Well

does

YouTube

still

use

Audible

15

Magic

today
A.

16

YouTube
Okay.

uses But
is

Google

technology
also

today.

17

Q.

YouTube

using Audible

Magic

18

alongside
A.

Googles
Not
at

technology
time.

today

19

this

20

Q.

When
At

did

YouTube
of

stop

querying

Audible

Magic

21

A.

the

end

2009. in time

22

Q.

From

the

point
up

where
it

YouTube
at

began
the end of

23

querying

Audible
all

Magic

until

stopped
to

24

2009

were the

newly

uploaded Magic

videos

YouTube

queried

25

against

Audible

databases

96

1/13/2010

King David

DAVID
A.

KING

SAN we the the ran

FRANCISCO queries during

CA against that

JANUARY Audible
time.

13

2010 for

Yes
to Does
to

Magic

all

uploads
Q.

site

term

legacy

fingerprinting

mean

anything
A.

you
means

It

something

to

me.

What

does

it

mean

to

you
Q.

Well
common

once

again
as

just we move

want
into

to

make

sure

we

have
10 A.

vocabulary

this

topic.

Uh-huh. But

11

Q.

Id

like

to

ask

about from have

any the

instances catalog

in

12

which

YouThbe

queried
Magic.

videos
Do

back

13

against
to use
A.

Audible
for that We

you

term that

you

want

14

phenomenon
we could Did use the
at

15

term
any

legacy.
point
use

16

Q.

Legacy
legacy

Youlube

Audible

17

Magic

for
A.

queries
did do

18

Yes
Magic And
the

Youlube
database. did

legacy

queries

against

the

19

Audible
Q.

20

Youlube Magic

query

its

entire

catalog

21

against

Audible

database
to form.

22

MR. THE

WILLEN WITNESS
still

Objection
Over

23

time
on our

every

single was

YouTube queried

24

video

that the

is

existent Magic

servers

25

against

Audible

database.

97

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

marked as King Exhibit 10.

It's a December 5th, 2006,

e-mail from Stephen Cho to Franck Chastagnol, Bates number Google 189308 through 189312. And just let me know when you're ready. A. Q. Okay. Was YouTube approached by a fingerprinting

company called MAGIX in 2006? A. Q. I believe they were. And did YouTube ever end up testing their

technology? A. Q. No, they did not. And I'd like to ask you a question about the It says:

second paragraph of King Exhibit 10.

"Some of these external inbounds (Gracenote, Aurix, MAGIX, Tunesat, Attributer,. . .) are being handled as a matter of courtesy and just keeping abreadst of what's in the market. (i.e., no one is thinking about any sort of bake off with multiple 3rd party fingerprinting vendors. . .) Around this time frame, late 2006, did YouTube have any interest in retaining a fingerprinting vendor other than Audible Magic? MR. WILLEN: Objection to the form.

150

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

THE WITNESS:

I think this e-mail thread is

relatively clear in that the course of action that had been decided upon was to develop Google fingerprinting technology in-house, and that's even a -- slightly misstating it, in that Google had already built excellent fingerprinting technology, both audio and video fingerprinting technology, and really, the -- the work of implementing a system like this was two-fold. One part was making it scale to the size of YouTube, a not -- a nontrivial exercise, and the second piece was harnessing it to all the -- the file flows of -- of YouTube and dealing with the rights, and -and -- and, you know, having a really strong policy framework around that. So we had excellent technology to work from as -- as a raw match service, and the -- you know, as -as we looked at doing this type of work of integrating, we decided that we wanted to do that integration with our own technology, which was robust, and -- and that -that was a rational use of our -- of our resources. I might also add that -- you asked if -- you know, if we had done technical evaluations of these companies, and I'm sure you can appreciate that a company like Google has to be very careful around patent

151

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

issues and IP issues.

And we weren't in a position to We wanted to --

announce the work that we were doing.

the -- the way of our company policy is to -- is to only announce things when you launch them, as opposed to pre-announce things that are under development. So we didn't -- we weren't in a position to be able to tell these companies that we had our own in-house technology, so our feeling was we wouldn't be able to put them on notice that they were talking to a potential competitor. And so as a -- as a matter of not wanting to create IP taint, we felt that it was important not to do deep technical evaluations of these technologies with them being unaware that we had competitive technology that we had developed at Google. BY MR. PLATZER: Q. Okay. So just to run through a couple of

the -- the vendors in this space, I just want to confirm whether or not they had any kind of interaction with YouTube in 2006-2007. A. Q. Uh-huh. Did Audible approach YouTube about its

fingerprinting technology? A. Yes, I spoke to Auditude about their

152

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

fingerprinting technology. Q. And YouTube didn't end up testing that

technology in 2006 or 2007? A. Q. Yes. Is Vobel -- did they approach YouTube in 2006

about their fingerprinting technology? A. Q. They did. And YouTube didn't test their fingerprinting

technology in 2006-2007 either? A. That is correct, but I'd just like to, once One, the

again, just point out that -- two things.

technology that we deployed was world class in its performance. And secondly, that no matter which

matching engine we used, there were still many months of work to make it work within YouTube's environment. Q. A. Q. Okay. But let's say --

So there were no shortcuts here. Okay. But at the point in time of February of

2007, YouTube wasn't testing Auditude; right? MR. WILLEN: THE WITNESS: February of 2007. BY MR. PLATZER: Q. And it wasn't testing Gracenote any longer at Objection to the form. We did not test Auditude in

153

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010

that point; right? A. Testing is -- requires real resources, and I

outlined before some of the considerable issues around IP taint if we were to do technical evaluations of all these companies, which we eventually ended up competing with. Q. Okay. But the answer is that in February of

2007 YouTube had ceased its testing of Gracenote; right? MR. WILLEN: THE WITNESS: February of 2007. BY MR. PLATZER: Q. And YouTube also didn't test Audible Magic's Objection to the form. We did not test Gracenote in

proposal for a video solution that we looked at earlier in the deposition; correct? A. So as a practical matter, if we couldn't come

to terms on financial matters and service level agreements, there seemed to be little point in doing technical evaluations of services that we weren't ready to contract for. Q. Okay. So if someone had made a representation

in -- in February of 2007 that YouTube was continuing to test Gracenote, Audible Magic, and Auditude, that wouldn't be an accurate representation, would it?

154

1/13/2010 King, David

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DAVID KING

SAN FRANCISCO, CA

JANUARY 13, 2010 Vague as to

MR. WILLEN: what "testing" means.

Objection to form.

THE VIDEOGRAPHER: MR. PLATZER:

Time.

Okay. This is the end of tape We are

THE VIDEOGRAPHER:

number 2 of the video deposition of David King. now going off the record. (Short break.) THE VIDEOGRAPHER: The time is 2:05 p.m.

This is the beginning of

recording number 3 of the video deposition of David King. We are now back on the record. The time is

2:11 p.m. MR. PLATZER: Would you please read back to

the witness the question that was pending before we broke. (Record read: Question: So if someone had made a

representation in February of 2007 that YouTube was continuing to test Gracenote, Audible Magic, and Auditude, that wouldn't be an accurate representation, would it?) MR. WILLEN: And -- and I'll just restate my Sorry.

objection, although it's not showing -- okay. THE WITNESS:

I just -- we had continued

155

1/13/2010

King David

DAVID under

KING

SAN

FRANCISCO would
use

CA the YT

JANUARY
--

13

2010

which
of

YouTube
the had

the

YTU

partition videos
A.

Audible been

Magic

database

with

respect

to

that

taken

down.

Uh-huh.

Q.

Id

like own of

to

ask

similar set

of

questions
Since

about

Googles

fingerprinting

technology.

implementation technology
10 A.

Googles

own

fingerprinting

Uh-huh. are
is

11

Q.

there

any

circumstances
to

in

which notice
is

12

video

that

removed
and

pursuant going

takedown

13

fingerprinted
A.

blocked

forward
we in end

14

As had

previously
the

discussed
technology
the

switched

over
we user

15

once we of

we we the

Google
over

place
so

when when

16

switched system

back

that

17

CMS

flagged
off
So

video

and did

said
so

please
the

18

create

reference
technology. that issue

of

this

we

using

19

Google around

really all my former would would
back end

testimony
the same

20

is

remain
we

21

regardless of
Q.

which

technical
stop

were
at

using. point

22

YouTube

didnt

doing

that

some

23

in

time
MR. THE

24

WILLEN WITNESS

Objection
That
is

to

the

form. that we still

25

service

175