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

Filing 315

DECLARATION of MICHAEL RUBIN in Support re: 167 MOTION for Summary Judgment.. Document filed by Google, Inc., Youtube, Inc., Youtube, LLC. (Attachments: # 1 Exhibit 1 - 6, # 2 Exhibit 7 PART 1, # 3 Exhibit 7 PART 2, # 4 Exhibit 7 PART 3, # 5 Exhibit 7 PART 4, # 6 Exhibit 7 PART 5, # 7 Exhibit 7 PART 6)(Schapiro, Andrew)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) Plaintiffs, ) v. ) ) YOUTUBE, INC., ET AL., ) ) Defendants ) ) ) THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, ET AL., ) ) on behalf of themselves and all others ) similarly situated, ) ) Plaintiffs, ) v. ) ) YOUTUBE, INC., ET AL., ) ) Defendants. ) VIACOM INT'L INC., ET AL.,

ECF Case Civil No. 07­CV­2103 (LLS)

ECF Case Civil No. 07­CV­3582 (LLS)

REPLY DECLARATION OF MICHAEL RUBIN IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT I, Michael Rubin, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am a partner with the firm of Wilson Sonsini Goodrich & Rosati,

attorneys for Defendants Google Inc., YouTube, LLC, and YouTube, Inc., (collectively "YouTube"). I submit this declaration in support of Defendants' Reply in support of their Motion for Summary Judgment. On March 5, 2010, I submitted a declaration in support of Defendants' Motion for Summary Judgment ("Opening Declaration"). I

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have been involved in these cases from their outset and am familiar with the documents produced in discovery by the parties and by third parties. I have also reviewed the opening and opposition papers submitted by all parties in connection with their summary judgment motions. The following facts are true of my personal knowledge and if called and sworn as a witness I could competently testify to them. I. Selected Materials Regarding the Uploading of Content to YouTube by Viacom and Viacom's Agents. 2. Attached hereto as Exhibit 1 is a table that I prepared showing a small

selection of the many videos uploaded to YouTube by Viacom employees, agents or others showing a variety of their attributes. The table also sets forth evidence

demonstrating that the videos were uploaded with authorization from Viacom. These videos can be categorized as follows: (i) videos described as being part of a full episode of a television show; (ii) videos that bear "time codes" or markings designed to make them appear "roughed up;" and (iii) videos that appear to be clips excerpted directly from somewhere within a longer piece of content. Exhibits 250A to 355B, referenced in the foregoing attached table, constitute the videos themselves. The "A" version is the original file format and the "B" version is a copy of the same file converted to the MPEG file format. The Version A files are "Flash" (or ".flv") video files, as stored on YouTube's servers, and were obtained directly from YouTube. (Similar references to video exhibits "A" and "B" in this

declaration follow the same convention.) True and correct copies of the documents identified in the table, which show the authorized nature of these videos, are attached 2

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hereto as Exhibits 2 to 13, or were attached to my Opening Declaration or other papers submitted in conjunction with YouTube's summary judgment papers, and are so designated in the table. 3. Attached hereto as Exhibit 14 is a table showing that certain accounts

used by Viacom's third party agents have uploaded over 5,954 videos to YouTube. I obtained the data reflected on that table by working with YouTube employees who collected it from YouTube's system. True and correct copies of the documents

identified in the table are attached hereto as Exhibits 15 to 37, or were attached to my Opening Declaration or other papers submitted in conjunction with YouTube's summary judgment papers, and are so designated in the table. II. Selected Documents Regarding YouTube Accounts Used by Viacom and Its Agents to Upload Content to YouTube. 4. Attached hereto as Exhibits 38 and 39, respectively, are two tables that I

prepared showing a noncomprehensive selection of certain YouTube accounts used by Viacom or its agents to upload videos to YouTube. These accounts can be categorized as follows: (i) Accounts for which a review of the discovery produced in this action reveals no evidence that it wa s the subject of

communications between Viacom and a YouTube employee in which Viacom's affiliation with the account was referenced. See Exhibit 38 attached hereto. (ii) Accounts for which Viacom contacted YouTube after having mistakenly taken down videos it had authorized to be uploaded to those accounts. See Exhibit 39 attached hereto.

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True and correct copies of the documents identified in these tables are either attached hereto as Exhibits 40 to 71, or were attached to my Opening Declaration or other papers submitted in conjunction with YouTube's summary judgment papers, and are so designated in the table. Collectively, these accounts uploaded 2,445 videos to

YouTube. I obtained this data by working with YouTube employees who collected it from YouTube's system. 5. I have reviewed the Declaration of Scott B. Wilkens in Support of

Viacom's Opposition to Defendants' Motion for Summary Judgment. In Paragraphs 18 to 19 that Declaration, Mr. Wilkens describes his attempt to estimate the number of videos uploaded by certain YouTube "director accounts and branded channels used by Viacom." He represents that these accounts collectively uploaded 609 videos to YouTube by May 1, 2008. The users of those Viacom accounts continued to upload videos to YouTube even after May 1, 2008. Based on data I obtained by working with YouTube employees who collected it from YouTube's system, the following table demonstrates the number of videos uploaded to the accounts identified by Viacom through the present day:

Account Name Paraccount MTV2 mtv2allthatrocks beheard Spiketv vh1staff ParamountVantage ParamountClassics Bestweekever theloveguru

Total Videos Uploaded 139 11 54 51 162 39 2 7 158 33 4

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strangewildernessuk Total Videos Uploaded 6.

20 676

Collectively, the accounts I described in Paragraphs 3 to 6 of this

Declaration uploaded 7,254 videos to YouTube. 7. Additionally, certain of the "director accounts and branded channels

used by Viacom" identified by Mr. Wilkens in his declaration were subject to takedown requests from Viacom. I described certain documents reflecting examples of this in my Opening Declaration at Exhibits 54-55 (SpikeTV), 56-57 (Paraccount). III. Comparison of Data Associated with Certain Clips in Suit and Certain Clips Viacom Withdrew from Suit. 8. I have reviewed the Declaration of Scott B. Wilkens in Support of

Viacom's Opposition to Defendants' Motion for Summary Judgment. Paragraph 2 of that declaration includes a table containing details regarding 20 Clips in Suit. Attached as Exhibit 79 is a table repeating the data included in Paragraph 2 of Mr. Wilkens's Declaration, but adding metadata from YouTube's system regarding those videos, such as the video title, and the username and email address of uploader of the video. That additional data was produced to Plaintiffs. Attached hereto as Exhibit 80 is a table containing the same categories of data for an additional 20 YouTube clips, all of which were dismissed from this suit by Viacom. See Rubin Opening Declaration ¶ 12 & Ex. 122. Versions A and B of the videos referenced in Exhibit 80 are attached hereto ranging from Exhibits 250A to 355B. IV. Comparison of Video Clips Viacom Has Withdrawn from the Case to Those that Remain Clips In Suit. 9. As I described in my Opening Declaration, on February 26, 2010, Viacom

dismissed with prejudice its infringement claims as to 434 clips it had previously asserted as clips in suit. See Rubin Opening Declaration ¶ 12 & Ex. 122. 5

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10.

I reviewed the clips over which Viacom has withdrawn its infringement

claims, and compared them to certain clips over which Viacom continues to assert an infringement claim. Based on my analysis, I prepared a table identifying a selection of Clips in Suit that I observed to be either identical or effectively indistinguishable from those clips over which Viacom has dismissed its infringement claims. following table shows a selection of 21 such Clips in Suit. The

Work in Suit

Dismissed Clip (Video ID)

Located at Ex.

Clip in Suit (Video ID)

Located at Ex.

Nature of Similarity

Drillbit Taylor Drillbit Taylor Drillbit Taylor Drillbit Taylor Drillbit Taylor The Heartbreak Kid The Heartbreak Kid The Heartbreak Kid Hot Rod Hot Rod Iron Man

5kWtyVo-8k0 5kWtyVo-8k0 sxNuomEUGG0 sxNuomEUGG0 AgGf_xso0HI g5ce_rOoGcc g5ce_rOoGcc g5ce_rOoGcc 6xFe570faSI 6xFe570faSI DUTtBxd2KPQ

269A/B 269A/B 335A/B 335A/B 279A/B 297A/B 297A/B 297A/B 271A/B 271A/B 291A/B

05-rpbKib-c 28xcyE87EWM 2dZ66NoxefY 2x1i2SCkRh0 a4nSnBS-Yno SHWybzGNlIQ jgg9pIPqcuk z0d_wjgerjM _zPnAMSIz0I 4ImcoZoPHdY 7FZx2Ykf0l0

255A/B 260A/B 261A/B 262A/B 274A/B 333A/B 308A/B 354A/B 254A/B 267A/B 272A/B

Identical Indistinguishable in kind and format Identical Indistinguishable in kind and format Identical Identical Indistinguishable in kind and format Indistinguishable in kind and format Indistinguishable in kind and format Indistinguishable in kind and format Identical

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Work in Suit

Dismissed Clip (Video ID)

Located at Ex.

Clip in Suit (Video ID)

Located at Ex.

Nature of Similarity

Jamie Kennedy's Blowin Up (101) Jamie Kennedy's Blowin Up (103) Sweeney Todd The Andy Milonakis Show Transformers Transformers Transformers Transformers Transformers Transformers

k6CSyIS5528

311A/B

zdvpptWbSv4

355A/B

Identical

88XvlfKnGwI

273A/B

rjQ3idh6Whk

331A/B

Identical

Gy3TrIlnTvA _sTgT76i3vc gxjpdGjv59o hfPAw9MM69A hfPAw9MM69A xWCkluxpGW8 j4A-BqFSSL8 1168T5BsmVY

299A/B 253A/B 298A/B 300A/B 300A/B 351A/B 306A/B 258A/B

_HdZSFiXfDs LNKunwTCtH A 4j3nWwCY4N Q rSVdjKXmVDo i6nh-vJl3n0 ijN91rPxcMo JF5XI1hJ_30 1JqB_xvmWXw

252A/B 316A/B 268A/B 332A/B 304A/B 305A/B 307A/B 259A/B

Identical Indistinguishable in kind and format Identical Identical Identical Indistinguishable in kind and format Indistinguishable in kind and format Indistinguishable in kind and format

Attached hereto as Exhibit 81 is an expanded version of this table, which also includes the usernames of the users who uploaded the identified videos. V. Viacom's Continuing Assertion of Infringement Claims Regarding Clips It Uploaded to YouTube. 11. In Viacom's most recent iteration of its infringement claims (its October

15, 2009 "Amended Production of Works in Suit," as modified by its February 26, 2010 Request for Dismissal), Viacom continues to assert infringement claims against YouTube for the videos set forth in the following table. 7 The table also contains

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excerpts of data produced by YouTube in response to Plaintiffs' discovery requests that shows the uploader's YouTube username, email address provided at registration, user-supplied video title, and user-supplied video description information for these Clips in Suit: Video Id
SPEexW7gXMw

Username
fcreetus

Email

Title
Jamie Kennedy on Sunset Blvd. in a Marble bag!

Description
Clip of Jamie Kennedy from his Blowin Up show, running across Sunset Blvd. in Hollywood wearing nothing but a marble bag...yikes! Here I am with ma man David Spade! Awesome! DVD AVAILABLE IN STORES JANUARY 9TH! This is the official music video for "Broken" by Lindsey Haun. It appears on the Broken Bridges soundtrack. For more info, click here http://pushplay er.com/brokenbr idgesmo...

W4UW2CBWrO4

MissTilaTequila

jlwMQBzfmc4

BrokenBridgesMovie

TILA TEQUILA ON THE SHOWBIZ SHOW WITH DAVID SPADE "Broken" by Lindsey Haun from Broken Bridges movie

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HIGHLY CONFIDENTIAL FILED UNDER SEAL cGrnebuquSk NateDernComedy Rob Riggle iPhone, with Nate Dern and other TDS interns From the June 28, 2007 Daily Show with Jon Stewart, this is a very funny piece done by Rob Riggle on the iPhone. You can see me and some of the other TDS interns spattered throughout the vid. I'm the bearded on playing Jenga. http://natedern .com

VI.

Viacom's Use of YouTube's CVP Tool Through its Agent BayTSP Starting in 2006. 12. The following table lists accounts that Viacom's agent BayTSP created It

and uses in connection with YouTube's Content Verification Program ("CVP").

appears that the account naming convention employed is generally to spell the Viacom's division name backwards and to insert the number "1" between the letters. For example, the account for Viacom's BET division is "t1e1b."
Account Creation Date
Apr. 17, 2006

Viacom Entity

CVP Account Name
t1e1b

Evidence of Creation Date & Connection to Viacom/BayTSP
Rubin Reply Exs. 82,83

BET

Jun. 21, 2006 Sep. 8, 2006

Paramount MTVN

rapyab v1t2m

Rubin Reply Ex. 84 Rubin Reply Ex. 83, 85

Sep. 8, 2006

Viacom

moca1i1v

Rubin Reply Ex. 83, 85

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Oct. 9, 2006

eki1p1s

Rubin Reply Ex. 87, 88

Oct. 9, 2006

Comedy Central

ydem1o1c

Rubin Reply Ex. 87, 88

Oct. 9, 2006

Country Music Television

t1m1c

Rubin Reply Ex. 87, 88

The documents referenced in the foregoing table are attached hereto as Exhibits 82 to 88.1 VII. Logging Database Data. 13. In consultation with plaintiffs, YouTube produced certain non-

anonymized data from its Logging Database for certain agreed-upon YouTube accounts that are associated with the parties' employees and/or agents. produced data bears Bates numbers GOO DB DATA 024-25. That

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Exhibits 89 to 160 intentionally left blank. 10

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VIII. Removals of Certain Videos from YouTube. 15. On October 3, 2006, YouTube proactively removed the video referenced

in Hohengarten Exhibit 32 (LPQRtuvuYAU) when enforcing its repeat infringer policy. On March 7, 2007, a YouTube user uploaded the video clip referenced in Hohengarten Ex. 73 (Tht2iCpQ0J0). YouTube removed the video on March 9, 2007 in response to a DMCA takedown notice. On May 21, 2008, YouTube proactively

removed the video referenced in Hohengarten Exhibit 77 (NpqgWW0Z7vM) when enforcing its repeat infringer policy. I obtained the foregoing data by working with YouTube employees who collected it from YouTube's system. IX. Discovery in these Actions. a. 16. Limited Party Document Discovery. Discovery in these actions did not proceed strictly according to the

Federal Rules of Civil Procedure. The parties entered in stipulated agreements that altered certain aspects of the standard rules. In one significant departure, the parties agreed that they would not be obligated to search the files of all employees likely to have responsive information. Rather, the parties negotiated and agreed upon a

"Custodian Agreement" whereby only the files of certain designated employees, or "custodians," would be searched. In the Premier League Action, counsel for the

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Premier League Plaintiffs made an initial selection, which was later supplemented by additional custodians selected by YouTube. In the Viacom Action, both the initial and all subsequent sets of custodians were selected by the opposing sides. In addition to the production of documents from the files of designated custodians and various individuals falling into special categories, the parties also agreed to produce documents from noncustodial sources in accordance with the Federal Rules. 17. plaintiffs. In total, 100 custodians were effectively identified from the Viacom Of those, only 15 were employees in one of Viacom's many marketing

departments. 18. The parties also stipulated that party documents postdating January 1,

2008 would not be produced except in agreed­upon circumstances. 19. As a result of these agreements, YouTube did not receive a document production from the expansive set of marketing

comprehensive

departments at Viacom's various subsidiaries. b. 20. YouTube's Limited Ability to Take Discovery of Viacom's Third Party Marketers. YouTube was unable to issue subpoenas to or depose every one of

Viacom's numerous third party marketers. Nor does YouTube believe it is aware of all of Viacom's marketing agents, as Viacom never identified them. Viacom did not include any third party marketing agents in its initial disclosures. Attached hereto as Exhibit 161 is a true and correct copy of Viacom's initial disclosures. Viacom also limited its answer to YouTube's Interrogatory No. 9 (asking Viacom to identify "each individual who has knowledge of marketing or public relations efforts for Your content involving uploading video of such content to websites for online viewing, including without limitation each individual involved in uploading or authorization 12

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for uploading of all videos that Viacom directly or indirectly caused to be uploaded to YouTube") to Viacom employees, thereby excluding all third parties from its response. Attached hereto as Exhibits 162 and 163 are true and correct copies of Viacom's initial and supplemental responses to YouTube's Interrogatory No. 9. c. 21. Viacom's Deficient Interrogatory Responses. Viacom's Response to YouTube's Interrogatory No. 9 was also deficient On September 8, 2008, Viacom identified 59

by its own self-imposed limitations.

Viacom employees who it represented were "most knowledgeable about Viacom's uploading of content on websites for marketing and public relations purposes." At the time, Viacom promised to supplement its response "in due course." See Exhibit 162 (Viacom's Responses to YouTube's Second Set of Interrogatories). One-and-a-half

years later, on January 8, 2010, Viacom's supplemental response to Interrogatory No. 9 identified another 31 Viacom employees "who are knowledgeable about Viacom's uploading of content on websites for marketing and public relations purposes." See Exhibit 163 (Viacom's Amended and Supplemental Responses to YouTube's Second Set of Interrogatories). 22. Viacom's supplemental response to Interrogatory No. 9 was served on

YouTube after the close of document discovery, and a few days prior to the end of fact depositions, but after all such depositions had been scheduled. Nonetheless, that

response was still deficient because it fails to identify at least the following Viacom employees who, as revealed during YouTube's depositions of Viacom personnel, also play a role in marketing Viacom's content: Joe Armenia, Nicole Browning, Erica

Cantwell, Kat Cheng, Michelle Clark, David Cohen, Megan Crowell, Robb Dickehut, Eric Flannigan, Michelle Ganeless, Kristina Griswold, Carolyn Hu, Pete Jacobs, 13

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Kevin Kay, Jeffery Keaton, Scott Lapatine, Kevin Mackall, Duncan McDonald, Dee McLoughlin, Sonia Ocasio, Wendy Perez, Phil Pirrello, Lisa Preston, Peter Rosati, Deena Stern, Julie Sun, Benjamin Taylor, Joseph Ternesky, David Toth, Bryan Warman, Lauren Weinstein, and Jolena Wong. Attached hereto as Exhibits 164

(36:8-38:23), 165 (21:6-22:3), 166 (9:23-11:6), 167 (85:10-18), 168 (10:21-24, 11:17-18, 14:2-18, 103:2-104:16), 169 (55:16-58:21), 170 (82:21-84:11, 88:8-90:3), 171 (8:14-21, 9:19-10:7, 166:5-17), 172 (13:16-14:12, 34:16-37:8), 173, 174 (35:2-37:13), 175 (55:1557:9), 176 (71:10-72:3), and 177 (33:17-34:7), are true and correct excerpts from the depositions of Viacom employees identifying themselves or their co-workers as being familiar with Viacom's marketing practices. The timing of Viacom's supplemental response also prevented YouTube from deposing any of the newly revealed marketing personnel. 23. YouTube also served its Interrogatory No. 23 on Viacom asking it to

"[i]dentify each Work In Suit uploaded in whole or in part to the YouTube website by Viacom or with Viacom's authorization and the date of each such authorized upload." Viacom initially refused to provide an answer to this Interrogatory, claiming no clips from the Works in Suit had been uploaded to YouTube with Viacom's authorization, and asserted that the information sought was not relevant. Attached hereto as

Exhibit 178 is a true and correct copy of Viacom's initial answer to Interrogatory No. 23. After meeting and conferring with YouTube, Viacom agreed to provide a complete response. Despite that, Viacom only provided a limited and incomplete answer to Interrogatory No. 23. Viacom limited its answer to information it found in its own document production, which was limited to the custodians and time period explained in Paragraphs 18 to 21. Viacom excluded from its answer any documents from 14

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YouTube's production or any of the third party productions. Viacom also did not seek information that existed outside that limited set of its own documents. Attached hereto as Exhibit 179 is a true and correct copy of Viacom's supplemental response to Interrogatory No. 23. Even by its own measure, Viacom has been unable to provide a complete response. My review of the documents Viacom identified from its own

production reveals Viacom failed to include numerous documents that evidence the authorized uploading of clips from Works in Suit by Viacom to YouTube that it did not identify in its interrogatory response. Attached hereto as Exhibits 37, 44, and 180 to 186 are examples of additional documents, produced by Viacom, that demonstrate that Viacom's answer to Interrogatory No. 23 is incomplete. d. 24. Limited and Deficient Deposition Testimony. As with document discovery, the parties agreed that certain limitations

would be placed on the cumulative number of hours each side could depose witnesses from the opposing party. Accordingly, YouTube was limited in its ability to depose the large number of Viacom employees who were involved in Viacom's marketing efforts. 25. Ultimately, YouTube was able to depose roughly 20 current or former

Viacom employees who were familiar with Viacom's online marketing practices. As I mentioned in Paragraph 21, however, between its two responses to YouTube's Interrogatory No. 9, Viacom identified 90 employees who are knowledgeable about Viacom's uploading of content on websites for marketing and public relations purposes. And Viacom's list omitted at least, an additional 32 employees with

marketing knowledge, some of whom are included in the 20 current or former employees that YouTube was able to depose despite Viacom's omission (Nicole 15

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Browning, Eric Flannigan, and Michelle Ganeless). Of those Viacom employees who had knowledge of Viacom's marketing practices that YouTube deposed, only four appear in Viacom's initial answer to Interrogatory No. 9 (Kyle Bonici, Steve Farrell, Amy Powell, Tamar Teifeld). 26. Of the 20 marketing witnesses that YouTube was able to depose,

including many who Viacom identified as having knowledge of its online marketing practices in its interrogatory response, numerous witnesses refused to provide answers to basic questions regarding those practices. Attached hereto are excerpts from the deposition transcripts of Todd Apmann (Ex. 164: 18:19-30:20, 34:23-35:2, 98:3-100:15), Damon Burrell (see Schapiro Opp. Ex. 259), Kyle Bonici (Ex. 187: 20:1422:19, 33:14-34:20, 35:10-14, 38:13-40:4, 43:14-22, 46:12-25, 50:25-51:22), Steve Farrell (Ex. 169: 46:20-48:14), Amy Powell (Ex. 174: 38:6-24, 40:15-42:24, 50:15-51:11, 91:13-95:1), Tamar Teifeld (Ex. 175: 164:21-165:3, 171:10-19, 175:21-176:13), and Megan Wahtera (Ex. 177: 27:20-29:13, 34:14-38:17, 39:24-41:11, 61:25-63:20, 72:1773:15). X. Viacom's Resistance to Production of "whitelists". 27. On January 19, 2010, after the close of document discovery, I wrote to

Viacom after learning of its failure to produce the aggregate data it allegedly maintained regarding the uploading of promotional videos by its many agents and subsidiaries. The existence of this data was not revealed until the last deposition taken in the case and after the close of document discovery, despite being called for by YouTube's discovery requests. A true and correct copy of my January 19, 2010 letter to Viacom is attached hereto as Exhibit 188.

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28.

Viacom responded by producing one such list of authorized accounts on Attached hereto as Exhibit 189 is a true and correct copy of

January 25, 2010.

Viacom's response and the attached list. That list, however, did not appear complete, and I wrote back to Viacom the next day, January 26, 2010, to request the complete list of authorized accounts and urls described by Viacom's witness. Attached hereto as Exhibit 190 is a true and correct copy of YouTube's January 26, 2010 response to Viacom. On January 29, 2010, Viacom wrote back claiming that no other responsive lists existed. Attached hereto as Exhibit 191 is a true and correct copy of Viacom's January 29 letter. I then spoke with counsel for Viacom questioning the veracity of the claims in their letter. Then, on February 9, 2010, Viacom agreed to produce additional documents containing lists of accounts Viacom wished to protect from takedown requests from its agents, which were referred to by Viacom and in my Opening Declaration as "whitelists." Attached hereto as Exhibit 192 is a true and correct copy of Viacom's correspondence regarding these additional lists, and the lists themselves. 29. In providing these whitelists to YouTube, Viacom marked them "Highly

Confidential," which means that no one at YouTube is entitled to see them (outside of a narrow set of attorneys pursuant to a stipulation executed in connection with summary judgment briefing). Attached hereto as Exhibit 1932 is a true and correct copy of a communication with Viacom's counsel in which he confirmed that Viacom did not want the information about its "whitelisted" accounts shared with YouTube's employees as recently as January of this year.

2

Exhibits 194 to 249 intentionally left blank. 17