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)

DONALD
STEVEN JENNER
601
Suite

B. B.

VERRILLI JR. vro hac FABRIZIO pro hac vice BLOCK LLP
Street

vice

Thirteenth

NW

1200 South P.C.

Washington Telephone
Facsimile

202 202 639-6066
Company

20005-3823 639-6000

DVernl1ienner.com SFabrizioj enner.com
Attorneys for

Record

Pla.tht9s

GEORGE
11377

M.

BORKOWSKI
SILBERBERG

Bar

No.

133416

MITCHELL

KNUPP

LLP

West Olympic Boulevard Los Angeles CA 90064-1683 Telephone [phone]
Facsimile
10
ii

310

312-3100

[e-mail]
Attorneys for Record

Company

Plaintiffi

CAREY

R.

RAMOS
of
the

pro hac

vice

12

DAVID
725

E.

KENDALL
Street

pro hac vice

WILLIAMS
Twelfth

CONNOTLLY LLP
N.W.
20005 434-5000 434-5029
Studio Platntffs

PAUL WEISS RTFKTND GARRISON WHARTON
1285 Avenue Telephone Facsimile Americas

LLP

13 14

Washington Telephone
Facsimile
Attorneys for the

D.C.

New York NY

202 202

212 212

10019-6064 373-3000 757-3990

15 16

[e-mail]
Motion Picture

[e-mail]
Attorneys for Music Publisher
Plaintiffs

17 18

STATES DISTRICt COURT CENTRAL DISTRICT OF CALIFORMA UNITED

METRO-GOLD WYN-MAYER
STUDIOS INC.
V.

CV

1-08541

SVW FMOx
with

19

et al.

onsolithted
Plain tiffs

CV

01-09923

SVW

FMOx

20
21

GROKSTER

LTD.

et al.

DECLARATION OF VANCE IKEZOYE IN SUPPORT OF PLAINTIFFS MOTIONS FOR

22 23

Defendants.

SUMMARY JUDGMENT
Date

JERRY LEIBER
V.

et al. Plaintiffs

May 12006
3Qp.m. The Hon. Stephen V. Wilson

24
25 26

Time Ctrm

CONSUMER EMPOWERMENT BY
aika

FASTTRACK

et

al.

Defendants.

27 28

AND RELATED COUNTERCLAIMS
DECLARATION
OF VANCE IKEZOYE
IN

SUPPORT OF PLAINTIFFS MOTIONS FOR
08541

SUMMARYJUDGMENL-CVOI

SVWFMOX

Vance Ikezoye
1.

the undersigned

declare

am

the President

and Chief Executive
to

Officer

of Audible
are

Magic
to

Corporation.

make

this declaration

demonstrate

that

there

methods

prevent
like

unauthorized

recordings

from being

distributed

on peer-to-peer been and continue

systems
to

those

operated with

by defendants such methods success
in

have

be

deployed
personal could

tremendous

mass

scale

commercial

settings.

have witness

knowledge

of the following
testify thereto.

facts

and

if called

and sworn

as

competently
2.

Established audio

in

1999 Audible Magic
technology
as

focuses

on

the

application
rights

of

10

content-based

identification

solution

for digital

11

management.
digital

It

is

the leader

in providing

content

management

services

to the

12 13

media
3.

and

entertainment
the

industries.

From
on the

beginning

Audible

Magic

has

proudly

disseminated

14 15

information has

capabilities

and successes

of our technology.
conferences.

Audible
continue

Magic
to

regular and

frequent

presence

in industry

We

16 17

market our technology
4.

in emergent.

and evolving

contexts. audio

The

core

of Audible
its

Magics
perceptual
in

work

is

recognition

technology
called

18 19

that

classifies

sound

based on
which.

characteristics.

company

Muscle Fish
July

LLC

began

1992

and which

Audible Magic acquired
technology
relies

in

20
21

2000

originally developed Coefficients

the

technology.

This

on Melaccurately

Filtered Cepstral characterize

MFCCs which
in the

are measurements

that

22 23 24 25 26 27 28

and model audio

same way the ear perceives

sound.

When

person hears any sound the human ear perceives spectrum measures amplitude
as

the spectra of the sound.

function the

of frequency.

We

have

found

that

measuring the shape of the spectrum segment
different

is

method of
and robust
in.

identifying uniqueness
i.e. able to

in

of audio

that

is

the most accurate

work

in

many

environments and despite changes

format

and acoustic and

digital

DECLARATION

OF VANCE IKEZOYE-CV

01

08541

SVW

FMOx

modifications.

Thus
in

Audible

Magics
audio
that

technology

analyzes

the shape of the the shape of that

spectrum spectrum
5.

inherent

digital

file.

The

MFCC

describes

adjusted

for the

way

the

human
this

ear actually perceives

sound.

The

analysis

performed by

technology produces
is

set

of numeric unique
to

values

called

feature vector
master

or digital

fingerprint which sound recording
digital fingerprint

absolutely

to

particular

recording whether
In essence

or the soundtrack
identifies

video or motion recording technology
10
11

picture.

each

master

much
works

as

human
all

fingerprint

identifies

person.

The

fingerprinting format
into

on

forms of audio

regardless

of the

digital

which

the audio

has

been encoded.

6.

The

fingerprint

remains constant
occurs

through
audio
file

all

typical

audio
into

processing
digital

12 13

such

as

the compression IvlP3
all

that

when an

is

encoded

formats including used
to

the most

popular

format.

Thus one
audio.

fingerprint

can be
are

14 15

recognize

manipulated forms of the
they

original

The

fingerprints

accurate

enough

that

can
song.

differentiate

between

various

live

and studio

16 17

performances of
7.

single

Audible Magics of the
occur
bit

technology
file.

also

accurately
is

identifies

songs

18 19

regardless

rate

of the

The

bit rate

the

number of
second.

bits

small

pieces.

of data
usually

that

in

given

amount of time
of
bits per

usually

Thus

bit rate

is

20
21

expressed

in

some

multiple

second

--

for

example

kilobits or
file

thousands
the better

of

bits per

second

Kbps.

The

higher

the bit rate
at

the larger the

and

22 23 24 25 26 27 28

the sound quality.

Users can
will

set the bit rate

several different

levels

but the identification

technology
to

work

in

range

of
This

bit rates

from highly
includes
the bit

compressed
rates

20 Kbps

CD

quality

over

300 Kbps.

range

used by regular users of P2P

services

who
least

generally 56

prefer the higher often

quality

that

comes

with

higher

bit rates

usually

at

Kbps and more

much

higher.

DECLARATiON OF VANCE 1KEZOYE

CV

01

08541

SVW FMOx

8.

The
is

fingerprints

are very

small.

Only 20 seconds of
typical fingerprint

master
is

recording times

needed

to create

the fingerprint.

hundreds

of

smaller than

typical

file

encoded

in

MP3

the

most popular
typical

digital

format
file

for

sound recordings and thousands popular
digital

of times

smaller than

WAY

another
fingerprint

format

for

sound recordings.
store

The

small size

of the and check
the

makes

it

much

easier

to

and much

faster

to transmit

fingerprints

of unknown

audio

files

against

reference

database

of

fingerprints

of

known

recordings.
9.

The
long

fingerprint

technology not distorted

is

very

secure

and cannot
that

be tampered experience

10

with.

As

as the audio

is

to the point

the listening

11

is

significantly

affected

the fingerprint

will

positively

identify

the recording.

12

10.

Audible Magic possesses
million copyrighted
for purchase in

database

of

fingerprints

from
represents the

13 14

approximately music
available

songs.

This

database
consists

roughly

North America music
labels.

and

of music from with

from the four

15 16

major and over

500 independent
an

Fingerprints Server

this large archive

are used to populate database.

AudibleMagic

Identification

reference

17

18 19

11.

Audible Magic markets several

tools

that

employ

our patented

audio

fingerprinting technique.
into

Our CopySense
Based

P2

Plug-in can be easily integrated
identification

20
21 22 23 24 25 26 27 28

any

file-sharing

service.

on our content

technology and with the
file.

services
to

the

CopySense
filter

P2
and

Plug-in provides
link to purchase

the file-sharing

network

ability

identi1i

any registered copyrighted

Additionally our CopySense
intelligently

Network Appliance
at

was
level

designed
its

specifically

to

manage P2P
and blocking
as

applications

network
files

capabilities

include

identiing
content

or allowing
songs

P2

containing

offending

media
files

such

copyrighted

by performing on-the-fly
Finally

matches of
our

against service

copyrighted allows

material registered in our database.

Replicheck

the media

manufacturing

industry to automatically

check

DECLARATION OF VANCE IKEZOVE

CV

01

08541

SVW FMOx

reproduction against

jobs

for copyrighted

content

by matching

each song on

CD

master

our database.
12.

With
is

the

Copy

Sense P2P Plug-in Audible Magics used
to

fingerprinting

teclmology from being
to

currently being

block
P2P

or prevent

unauthorized

recordings

distributed

and copied

in

systems.

Thesesystems

are

very similar

those

operated

by defendants

in this case.

13.

For example Audible Magic has
in the

successftully

deployed

the audio

fingerprinting technology

iMesh

system.

The Audible Magic

tool

has

been

adopted
10
11

by hundreds
majority

of thousands of
all

of iMesh users and currently appears

to

make up

significant

active

iMesh
tool

users.

14.

The Audible Magic
volume. Based

has

demonstrated

itself

to be readily scalable

12

to

enormous
15.

13 14

on the Audible Magic technology
fingerprint

that

was incorporated
target
file

into

the

iMesh
level.

client an audio

was

calculated

for

each

at the

client

15 16

That

fingerprint

was communicated
of
fingerprints

to

an Audible Magic
to

Identification

Server

hosting

database

corresponding audio
file

works

not authorized

for

17

distribution.

If the fingerprint

of

the

unknown
server

matched
with

fingerprint in

18 19

the reference

database
to

the identification the

responded

command

to

the

user sent

module

block
block
it

file.

If the fingerprint

was

not recognized

the server

20
21

do

not

command.

When

the

module

received

block command
been

from the server
received.

terminated

the transfer

and deleted what had already

22 23 24 25

do

not

block Magic
to

command
filter

resulted in the completion therefore filter

of the download.

The iMesh-Audibie
all files

was

out

filter

meaning

that

were permitted
as

be

freely

exchanged

unless

the

work was

specifically

identified

one

that

was

not authorized

for distribution.

26
27 28

16.

The iMesh-Audible
side

Magic

filter

was

designed
to

to

filter

on both the from another from the

download
user and
the

when

the iMesh

user attempted

download
to

file

upload

side

when someone

attempted

obtain

file

DECLARATION OF VANCE IKEZOYE

CV

01

08541

SVW

FMOx

iMesh

user.

In this

way

iMesh could

ensure

that

its

users were not downloading In addition the

or distributing

to

others

files

not authorized

for distribution.

Audible

Magic

technology

was network
networks

agnosc
across

which

meant

that

it

filtered

sound recordings
particular brand
17.

on multiple of client

platforms without

regard to the
transfer.

application
that testing

on the other end of the intended of the iMesh-Audibie evidence
that

understand
real

Magic

filter

has

demonstrated
filter

with

world empirical block well over
results

the audio

fingerprinting
for peer-to-

would

successfully

99% of own

the

flies

unauthorized

peer 10
11

distribution.

These

confirm our

evaluations

and

testing

of the on
its

fingerprinting technology.

That technology
filters.

moreover can be implemented

own

or in conjunction
18.

with other
currently

12

iMesh
tool

is

using an architecturally

similar version

of the

13

Audible

Magic

in

its

commercial business
In that

relating

to

the

authorized licensed
to

14 15 16

distribution

of licensed recordings.
certain

enterprise

iMesh

is

distribute

works.

With
that
its

the Audible

Magic

fingerprinting technology or distributing
to
files

iMesh

is

able to ensure

users are not downloading regardless
that

that

17

are not authorized

for distribution

of the network
contains works.

which

iMesh

is

18 19

connected
client

and regardless
that

of whether
filter

network

different

brands

of

applications
filter

do not

out copyrighted
to

The Audible Magicper

20
21

iMesh

has

scaled

seamlessly

million

look-ups

day and

easily

could

scale to meet the needs
19.

of any network
has also

in use

today.
its

22 23 24 25 26 mass

Audible Magic
at

implemented and ISP

fingerprinting technology

on

scale

the educational

network

level.

For example

over

60
is

universities

use Audible

Magics

CopySense Network Appliance The system
enables

which

able to

completely
traffic

block

all

P2P

protocols.

the schools

to filter

P2P

by blocking
or

all

transfers

or by blocking

only those
that

transfers

containing

27
28

copyrighted

sexual content.

The many

schools

use

the

CopySense
Central

Network

Appliance

include

the foUowing.publicly

announced

universities

DECLARATION OF VANCE IKEZOYE

CV

01

08541

SVW FMOX

Washington Tulane and

University

Fresno

Pacific

University

Texas
State turned

AM
to

Kingsville of Portland

University

University

of Maryland Coppin
these schools

University

Wittenberg
illegal

University.
file

Many of
was

Audible

Magic
At

because

sharing
for

debilitating

their

network

bandwidth.
that

Wittenberg
voted
to

University

example

it

was

the

Student

Senate

unanimously
that

block

illegal

file-sharing

because

of the poor network

performance
traffic

was being caused by
taken the universitys resolved

illegal

file-sharing.

Twice

in the

same year P2P Audible

had

network
the issue

bandwidth

down

to

zero.

Magics
Similar

technology
10 positive
to

simply by blocking were seen

the illegal
at

file-sharing.

effects

on network

bandwidths

each of the other
monitors

universities

11

employ

the technology.

The Audible Magic
transfers

device

myriad protocols
schools.

12

simultaneously 20.

and terminates
Needless
to

in real-time

at each

of these

13

say our technology
press reports
attributable

is

effective

when our

database
to the

is

14 15

comprehensive. deployment
reference

Any

initial

of

early

stumbles

pertaining

iMesh

are almost

entirely

to

initial

delays
it

in populating

our

16

database.

That

database

is

now expansive and
been implemented
success.

continues

to

grow.

As

17 18

discussed

above

our technology with

has

in

numerous

mass

scale

commercial
21.

settings

tremendous

19

In

sum

for several

years Audible
could

Magic

has

offered

copyright infringement

20
21

filtering

technology and
while

tools

that

be used
with
the

effectively

to stop

on P2P networks works.
requests recordings. our

not interfering

free

exchange
tens

of noninfringing of millions of of millions of

22
23

The Audible Magic
day

technology against

can

easily handle

for identification

reference

database

24
25

The
false

technology

currently

achieves

above

99%

correct

identification

rates are

positive

identification

rate

is

better

than

in

10000.
the upper

These

rates

26 27 28

minimums

as

we have

not performed

tests

that

establish

bounds

of

our technical towards
is

accuracy.

Audible

Magics

goal

which

we

are

continually

working

100%

correct

identification.

DECLARATION OF VANCE IKEZOYE

CV

01

08541

SVW FMOx

declare under penalty the foregoing
true

of perjury under the laws of the United and
that this Declaration

States

that

is

and correct Los

was executed

on

2006at

GaA-os

CPr

Vance

ffkzoye

9I
10

11

12

13 14

15 16

17 18

19

20
21

22 23 24 25 26 27 28

DECLARATION OF VANCE JKEZOYECV

01

0854.

SVW FMOx