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

Filing 316

DECLARATION of MICHAEL RUBIN in Support re: 167 MOTION for Summary Judgment.. Document filed by Google, Inc., Youtube, Inc., Youtube, LLC. (Attachments: # 1 Exhibit 16 - 17, # 2 Exhibit 18 - 26, # 3 Exhibit 27 - 30, # 4 Exhibit 31 - 42, # 5 Exhibit 43 - 44, # 6 Exhibit 45 - 71)(Schapiro, Andrew)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIACOM INTERNATIONAL INC., ET AL., ) ) 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. ) )

ECF Case Civil No. 07-CV-2103 (LLS)

ECF Case Civil No. 07-CV-3582 (LLS)

SUPPLEMENT TO REPLY DECLARATION OF MICHAEL RUBIN IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Rubin Reply Exhibit 8

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, AND BLACK ENTERTAINMENT TELEVISION, LLC,

) ) ) ) ) ) PLAINTIFFS, ) CASE NO. ) 07-CIV-02103 vs. ) ) YOUTUBE, INC., YOUTUBE, LLC, AND ) GOOGLE, INC., ) ) DEFENDANTS. ) _______________________________________) ) THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., ET AL., ) ON BEHALF OF THEMSELVES AND ALL ) OTHERS SIMILARLY SITUATED, ) ) PLAINTIFFS, ) CASE NO. ) 07-CV-3582 vs. ) ) YOUTUBE, INC., YOUTUBE, LLC, AND ) GOOGLE, INC., ) ) DEFENDANTS. ) _______________________________________) VIDEOTAPED DEPOSITION OF JOHN EDDOW TAKEN THURSDAY, NOVEMBER 12, 2009 LOS ANGELES, CALIFORNIA Job No. 18093

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

VIACOM INTERNATIONAL, INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC., PARAMOUNT PICTURES CORPORATION, AND BLACK ENTERTAINMENT TELEVISION, LLC,

) ) ) ) ) ) PLAINTIFFS, ) ) vs. ) ) YOUTUBE, INC., YOUTUBE, LLC, AND ) GOOGLE, INC., ) ) DEFENDANTS. ) _______________________________________) ) THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., ET AL., ) ON BEHALF OF THEMSELVES AND ALL ) OTHERS SIMILARLY SITUATED, ) ) PLAINTIFFS, ) ) vs. ) ) YOUTUBE, INC., YOUTUBE, LLC, AND ) GOOGLE, INC., ) ) DEFENDANTS. ) _______________________________________)

CASE NO. 07-CV-2103

CASE NO. 07-CV-3582

VIDEOTAPED DEPOSITION OF JOHN EDDOW, TAKEN ON BEHALF OF THE DEFENDANTS, AT 9:31 A.M., THURSDAY, NOVEMBER 12, 2009 20, 2009, AT 350 SOUTH GRAND AVENUE, LOS ANGELES, CALIFORNIA, BEFORE AUDRA E. CRAMER, CSR NO. 9901, PURSUANT TO SUBPOENA.

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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APPEARANCES OF COUNSEL

FOR VIACOM PLAINTIFFS: JENNER BLOCK, LLP BY: SCOTT B. WILKENS, ESQUIRE 1099 NEW YORK AVENUE, NW SUITE 900 WASHINGTON, DC 20001 [phone] [e-mail] FOR PREMIER LEAGUE PLAINTIFFS: PROSKAUER ROSE, LLP BY: GIL N. PELES, ESQUIRE 2049 CENTURY PARK EAST SUITE 3200 LOS ANGELES, CALIFORNIA 90067-3206 [phone] [e-mail] FOR FANSCAPE: TARKIAN & ASSOCIATES BY: ALEX TARKIAN, ESQUIRE 1901 AVENUE OF THE STARS SECOND FLOOR LOS ANGELES, CALIFORNIA 90067 [phone] [e-mail]

FOR YOUTUBE DEFENDANTS: WILSON SONSINI GOODRICH & ROSATI BY: MAURA L. REES, ESQUIRE 650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304-1050 [phone] [e-mail][phone] ALSO PRESENT: TOM CAVANAUGH, VIDEOGRAPHER

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Leak, Kristy's Ass and then Gossip Girl 40 and then A Shot of Love 2, Tila Tequila Leak, Lesbian Sandwich, Gossip Girl 40. A. Q. Okay. Based on reviewing Exhibit 24, is it your

11:51

11:51

understanding that the -- first of all, that the Gossip Girl 40 YouTube user name was created by Fanscape? A. I think that's a leap. We're using the 11:51

channel -- using the channel versus creating it is not necessarily the same thing so -- right? Q. Well, is it your understanding that YouTube

people are allowed to use channels that they didn't create? A. Q. Yes. But you're not aware of any circumstances where 11:52

Fanscape did that, use channels that it didn't create, are you? A. Q. No. And in fact, in Exhibit 26, My-lan Beauford 11:52

references e-mailing gossip blocks with the fake e-mail address Gossip Girl 40. Does that indicate to you that

My-lan created the Gossip Girl 40 YouTube account? A. Exhibit 26? MR. TARKIAN: Do you know whether or not My-lan 11:52

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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created Gossip Girl 40? THE WITNESS: BY MS. REES: Q. Were all of the four videos listed on Based on this, yes.

11:53

Exhibit 30 on the Gossip Girl 40 uploaded to YouTube by Fanscape on behalf of MTV? A. Q. All four? Say your question again.

11:53

The question was, were all four of the videos

listed on Exhibit 30 on the Gossip Girl Channel uploaded to YouTube on behalf of MTV? A. The only one I would question would be the 11:53

Perez Hilton freakout. Q. A. Why would you question that? I don't think that was provided by MTV. I 11:54

don't think Perez Hilton is an MTV property. Q. Again, if you look back at Exhibit 26 in

My-lan's update for the Celebrity Wrap Superstar Show she references -- the first bullet point is "Perez Hilton threw a temper tantrum, and MTV wanted the world to know about it. and YouTube." A. Q. Okay. So does that indicate to you that Perez Hilton 'Leaked' video clip uploaded to ifilm 11:54

Freaking Out clip is one of the clips that My-lan is referring to in Exhibit 26? 11:54

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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A. Q.

Yes. Back to the page with the Tila Tequila Poolside

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Fight Scene, in the video kind of in the middle of the screen shot of the video looks like a time code. like "01:18:18:03." A. Q. Yes. Do you know why those numbers were superimposed Looks 11:55

on the video like that? A. Q. I don't know. Was including a time code in the video 11:55

something that MTV ever asked Fanscape to do? A. I don't know. MR. TARKIAN: four numbers. BY MS. REES: Q. As far as Fanscape goes, did MTV ever put time 11:56 May not be a time code. It's

codes in video footage in order to make it look as though the video was unfinished and it was being leaked? MR. WILKENS: THE WITNESS: BY MS. REES: Q. On the Gossip Girl 40 Channel, is there any Objection to the form. Yeah, I don't know. 11:56

indication from looking at the printout that Gossip Girl 40 is a Fanscape account? A. No. 11:56

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

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Q.

These two first videos are called or have

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"Tila Tequila Leak" in the title, they are not really leaks in the sense of being unauthorized. MTV provided

these videos to Fanscape with permission to upload them; correct? MR. TARKIAN: THE WITNESS: they provided. Objection to form. Fanscape only uses videos that 11:57

We don't create videos, and we don't

manufacture videos. BY MS. REES: Q. A. And it certainly doesn't steal videos? Yeah. Certainly doesn't steal videos. Exhibit 31. (Whereupon, Exhibit 31 was marked for identification.) THE WITNESS: BY MS. REES: Q. A. Q. Can you identify Exhibit 31? This is a copy of an e-mail. It's an e-mail string involving Christy Wise at 11:59 Okay. 11:58 11:57

MS. REES:

Fanscape, Jessica Nicola at MTV, and the last one is forwarded to My-lan Beauford at Fanscape. A. Q. A. I don't see -At the very top. Yes. Thank you. Getting tired already. 11:59

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 [phone]

Rubin Reply Exhibit 9

Rubin Reply Exhibit 10

Rubin Reply Exhibit 11

Video ID Video Title Length (Seconds) Date Video Uploaded YouTube Account Username Date YouTube Account Created Signup Email Signup IP

t2x6N4qnGdM DRILLBIT TAYLOR - Emmit 53 3/17/2008 tastefullymine 5/23/2007 [e-mail] 171.64.128.220

Video ID Video Title Length (Seconds) Date Video Uploaded YouTube Account Username Date YouTube Account Created Signup Email Signup IP

xLUPs8zZ-mA DRILLBIT TAYLOR - Ryan 47 3/17/2008 tastefullymine 5/23/2007 [e-mail] 171.64.128.220

Page 1 of 1

Rubin Reply Exhibit 12

From: Date: To:

Subject:

"Worsnup, Mickey - Paramount" <[e-mail]> Thu, 21 Jun 2007 16:32:29 - 0 7 0 0 ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ "Powell, Amy - Paramount" < H H H H H H H H H > , "Teifeld, Tamar- Paramount" <[e-mail]>, "Chiang, Cat - Paramount" <[e-mail]>, "Tipton, Kristina Paramount" <[e-mail]> Re: Transformers

These are all legit. The first one is from someone just compiled all our TV spots and trailers and made their own music video....its actually good, we should turn a blind eye. I think KT said the rest of them are just EPK clips. On 6/21/07 4:21 PM, "Powell, Amy - Paramount" H H H ^ H H H | H H m wrote: Original Message From: Courtney Nieman <[e-mail]> To: Perry, Alfred - Paramount; Powell, Amy - Paramount Cc: Mark M. Ishikawa <[e-mail]>; Evelyn Espinosa <[e-mail]>; Warren Kim <[e-mail]> Sent: Thu Jun 21 16:19:47 2007 Subject: FW: Transformers We found these just a short time ago. I have asked Blair to send take down notices on them. They don't look like teasers or trailers. Many scenes I haven't picked up on before. Let me know if you want me to stop the take down notices. Courtney Nieman From: Blair Taylor Sent: Thursday, June 21, 2007 4:10 PM To: Warren Kim; Courtney Nieman Subject: Transformers yugiohtcgcollector02 http://www.youtube.com/watch ?v=5G8Tcms6xQk http://www .youtube.com/watch ?v=3vlNUJze4nI http://www.youtube. com/watch ?v=rSVdjKXmVDo http://www.youtube.com/watch ?v=VG30jK41Q8E http://www.youtube.com/watch ?v=fyCNSWALU6k http://www.youtube. com/watch ?v=wZR£L0QN-HQ http://www.youtube.com/watch ?v=wxxnllc5K_g http://www.youtube.com/watch ?v=RDPGh6hsW0g http://www.youtube. com/watch ?v=Esyyxlil_nQ This user has all the above clips on YouTube. To me they do not appear to be parts of the trailer. Please advise~ Thanks

Blair Taylor

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Rubin Reply Exhibit 13

Rubin Reply Exhibit 14

Certain Accounts Used by Viacom's Third Party Agents

Account Name

Videos Uploaded

Evidence Showing Connection to Viacom
Ostrow Opening Dec. ¶2-6; Rubin Reply Ex. 15 Rubin Opening Ex. 87 (Response to RFA 32, 33); Rubin Reply Exs. 16-19 Schapiro Opp. Ex. 417; Rubin Opening Ex. 31, 116 Schapiro Opp. Ex. 417; Rubin Opening Exs. 31, 87 (Response to RFA 67); Rubin Reply Exs. 20-25 Schapiro Opp. Ex. 417; Rubin Opening Exs. 31, 116; Rubin Reply Ex.26 Rubin Opening Exs. 31, 66 (Response to RFA 66), 107

BrienTA

231

broadwayjoe415

5

fanscapemtv

18

fanscapevideos fanscapevideos4u GossipGirl40

1142 38 7

isitfridayyet

30

Rubin Opening Exs. 86, 87 (Response to RFA 64); Rubin Reply Ex. 27, 28 Schapiro Opp. Ex. 417; Rubin Reply Ex. 29; Rubin Opening Ex. 116

mtvfanscape

15

OfficialReno911

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Rubin Reply Exs. 30, 31

parkmyvibe Snackboard Tesderiw

3 26 5

Rubin Opening Exs. 87 (Response to RFA 36), 96; Rubin Reply Ex. 16 Rubin Reply Ex.33; Rubin Opening Ex. 87 (Response to RFA 65) Rubin Opening Exs. 46-48

thatisalsofunny

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Rubin Opening Exs. 87 (Response to RFA 30), 115; Rubin Reply Exs. 7, 18, 34 Rubin Opening Ex. 87 (Response to RFA 29), 115; Rubin Reply Ex. 35

thatsfunny

158

Account Name

Videos Uploaded

Evidence Showing Connection to Viacom
Rubin Opening Ex. 87 (Response to RFA 99); Rubin Reply Exs. 60, 61 Rubin Opening Ex. 87 (Response to RFA 85); Rubin Reply Ex. 36 Schapiro Opp. Ex. 417; Rubin Opening Ex. 87 (Response to RFA 88) Schapiro Opp. Ex. 417; Rubin Opening Ex. 87 (Response to RFA 63); Rubin Reply Exs. 28, 37

TNAwrestling waytblue waytobluefrance

3518 109 66

Wiredset Total Videos Uploaded

556 5,954

-2-

Rubin Reply Exhibit 15