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

Filing 314

DECLARATION of ANDREW H. SCHAPIRO in Support re: 167 MOTION for Summary Judgment.. Document filed by Google, Inc., Youtube, Inc., Youtube, LLC. (Attachments: # 1 Exhibit 110 PART 6, # 2 Exhibit 111 - 134, # 3 Exhibit 135 - 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" [e-mail]~

Thu, 6 jul 2006 23:45:14 -0400

"McGrath, judy" [e-mail]~, "Wolf, Michael" .. [e-mail]~ 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.

5
6

VIDEOTAPED DEPOSITION OF ERIK FLANNIGAN, taken at the offices of

7
8 9

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

19

20
21
22

23
24

25

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New Yark 10022 (2 I 2)705-8585

3
1

2

A P PEA RAN C E S:

3
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
[phone]

8

9

j gueli@shearman. com kfi tzmaurice@shearman. com

10
11 12

FOR THE DEFENDANTS YOUTUBE, INC.,
13
14

YOUTUBE, LLC and GOOGLE, INC.: WILSON SONSINI GOODRICH & ROSATI By: DAVID H. KRAMER, ESQ.

CAROLINE WILSON, ESQ.
15

16
17 18

650 Page Mill Road Palo Alto, California 94304 [phone]

Dkramer@wsgr . com
Cwilson@wsgr. com

19

20

ALSO PRESENT:
21

Michelena Hallie, MTV Networks
22

Manuel Abreu, Videographer
23
24

25

DA VID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New Yark, New York 10022 [phone]

94
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

95
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 [phone]

96
1

FLANNIGAN

2 3
4

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

97
1

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 [phone]

224
1

FLANNIGAN

2 3
4

Q.

How

many

videos in total

have you uploaded to YouTube?
A.

Somewhere

in the five to six
they?

5
6 7

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 [phone]

225
1

FLANNIGAN

2

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

226
1

FLANNIGAN

2

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

227
1

FLANNIGAN

2 3
4

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

258
1

FLANNIGAN

2

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 [phone]

259
1

FLANNIGAN

2 3
4

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 [phone]

260
1

FLANNIGAN

2

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 [phone]

261
1

FLANNIGAN

2 3
4

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

262
1

FLANNIGAN

2 3
4

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 [phone]

263
1

FLANNIGAN

2 3
4

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 [phone]

264
1

FLANNIGAN

2

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 [phone]

265
1

FLANNIGAN

2 3
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
1

FLANNIGAN

2 3

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
1

FLANNIGAN

2 3
4

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 [phone]

303
1

FLANNIGAN

2 3
4

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

Schapiro Exhibit 133

Schapiro Exhibit 134