Schapiro Exhibit 195 Subject: Re: Vanity Fair/Sumner Redstone From: Robinson, Carole -:EX:/O=VIACOM/OU=MTVUSA/CN=RECIPIENTS/CN= ROBINSOC;: To: Freston, Tom Cc: Date: Wed, 01 Nov 2006 02:46:10 +0000

-----Original Message----- From: Freston, Tom To: Robinson, Carole Sent: Tue Oct 31 21:29:322006 Subject: Re: Vanity Fair/Sumner Redstone

-----Original Message----- From: Robinson, Carole To: Freston, Tom Sent: Tue Oct 3121:16:032006 Subject: Re: Vanity Fair/Sumner Redstone

-----Original Message----- From: Freston, Tom To: Robinson, Carole Sent: Tue Oct 31 18:58:592006 Subject: Re: Vanity Fair/Sumner Redstone

-----Original Message-----

Highly Confidential VIA09076933 From: Robinson, Carole To: Freston, Tom Sent: Tue Oct 3111:25:52 2006 Subject: Vanity Fair/Sumner Redstone

The New Establishment Sumner Redstone and one of the saltwater fishtanks in his home in Beverly Park, California, on October 6. Photograph by Don Flood. Sleeping with the Fishes Happy at last, Sumner Redstone is still far from mellow-witness his public trashing of superstar Tom Cruise and firing of Viacom C.EO, Tom Freston. At home in Beverly Hills, the 83-year-old tycoon and his new wife, Paula, reveal their love story, her role in the Cruise decision, and what he claims was Freston's big mistake. by Bryan Burrough December 2006 High on the slopes above Beverly Hills, so high the clouds sometimes waft beneath it, one of the most exclusive enclaves in Southern California hides behind a pair of mammoth iron gates. If you're expected, a security guard will push a button and the gates will slowly open. Inside lies the cosseted world of Beverly Park, a collection of gargantuan mansions where the smallest homes, the few with floor space under 20,000 square feet, rarely sell for less than $10 milion. Most aren't within view. This is a gated community where every home seems to have a high gate of its own. Its long list of celebrity occupants includes Eddie Murphy, Sylvester Stallone, Barry Bonds, Reba McEntire, Rod Stewart, Martin Lawrence, Mike Medavoy, and a slew of Hollywood producers, and, oh yes, Denzel Washington, whose French-château-style mansion clocks in at 60,000 square feet. One of the cozier homes, among the few you can actually see from the street, belongs to Sumner Redstone, the 83-year-old billionaire who controls both CBS and Viacom, whose flagship assets include Paramount Pictures and MTV Networks, making Redstone the boss of everyone from Katie Couric and David Letterman to, technically at least, with Paramount's recent purchase of DreamWorks, David Geffen and Steven Spielberg. Redstone's home, tucked into a cul-de-sac next to Stallone's, is a long, low building of pale gold whose entry is flanked by pools teeming with koi and shoulder-high rushes. Down the hallway, to your left, is the indoor pool, where Redstone swims-in the nude-every afternoon. Also down the hall is the study where he spends much of each day on the phone, surrounded by tanks of his beloved saltwater fish. Out back, next to the infinity pool, with its 50-mile views over downtown, is the hot tub where Redstone likes to shave-in the nude, also. Right now there's a can of Gillette shaving cream beside it. This is the haven where, after spending most of the last two decades shuttling among hotel suites, Redstone has finally, until recently at least, found in his twilight years something approximating peace- and his happiness has much to do with the life he has built with his new, 44-year-old wife, a sinewy onetime Manhattan schoolteacher named Paula Fortunato, now Paula Redstone. A famous workaholic, Redstone withdrew here three years ago, turning over daily supervision of his empire to his 52-year- old daughter, Shari, Viacom c.E.O. Tom Freston, 60, and the man who runs CBS, Les Moonves, 57. Between games of tennis, scattering brine shrimp to his fish, and sessions on the treadmil-fully clothed, we're told-he runs everything now by telephone. Life in Beverly Park has its trials, however, even for a mogul of Redstone's heft. He had barely adapted to his new routines when the rumors began to fly: that he was out of touch, that he had lost his edge, that he was retiring. There were whispers about his health; down in Beverly Hills, everyone seems to have a story about Redstone walking into a restaurant walL. The perception that he was becoming irrelevant was reflected in the Vanity Fair New Establishment ran kings this fall, which saw him plunge from NO.3 in 2005 all the way to No. 30. Speculation about what would happen to his empire on his passing, from who would run it to what would be sold, rose by the month. But then, in a span of less than two weeks, Redstone re-emerged this summer to fling two thunderbolts that rocked the media world: the "firing" of Tom Cruise from his lucrative production deal at Paramount-he actually let Cruise's deal lapse-and the actual firing of his longtime confidant Freston, MTV's co-founder, after barely eight months at Viacom's helm. In the media firestorms that ensued, Redstone thrust himself front and center, granting interview after interview in which he savaged Cruise as an overpaid, ill-behaved symbol of a Hollywood star system gone mad, and dismissed the popular Freston as an emperor who, he claims, fiddled while the company's stock price

Highly Confidential VIA09076934 burned. Both moves left veteran media-watchers scratching their heads, until all the chattering coalesced into a single overarching theory: that Redstone fired Cruise and Freston merely to prove his own continuing relevance-to prove he was still The Man. "I think Sumner will do anything for attention. It's what started all this," says Sue Mengers, the Hollywood doyenne and onetime superagent. "The consensus in the community is that what he did to Tom Cruise, and to Freston, was outrageous, you know, just to prove he's still alive." Mengers compares Redstone to another magnate who once owned Paramount, the late Charles Bluhdorn of Gulf & Western, an East Coast emperor who, she feels, never understood the way Hollywood truly works, An afternoon spent at the Redstone home doesn't entirely dispel the theory. Sitting in a straight- backed chair in the living room, attired in an unfortunate blue plaid jacket and black shoes, Redstone comes across as feisty as he did when he burst onto the financial scene, 20 years ago. But he looks frail and has a senior moment or three, losing his train of thought, repeating stories, and asking that a question or two be repeated. Still, he appears in total command, roundly attacking Cruise and, while emphasizing how much he admires Freston, trashing him nonetheless. He appears in command, that is, until the very end, when he stands to shake my hand and, to my horror, suddenly lurches to one side and begins to falL. Sumner of Love In every man's life there is business and there is pleasure, Until the last few years, however, Redstone's only pleasure was business. He is famously focused on his work; by his own admission, every conversation, every dinner, every social outing had at least something to do with Viacom or CBS. He is equally renowned for his crankiness, suing rivals, and warring with his estranged son, Brent, 56, a Colorado attorney who has filed a lawsuit against his father seeking to dissolve the family holding company, so he can take his share-estimated to be worth more than $1 bilion-out of it. In person Redstone can be impatient and curt, snapping at waiters and subordinates. During our interview, when his P.R, man tried to correct him, Redstone barked, "Quiet!" "He's not a man who has many friends," another Hollywood mogul told me, "and you know, I see him a lot, and he doesn't know what a real friend is, He has no sense of other people. It's all about him, and it always has been. He has a tremendous ego. But he has no grace. No charm. Really, he's not loyal to anyone but himself, Before Paula came along, he was really all alone." Whatever Redstone lacks in charm he makes up for in intellect and sheer willpower; no one doubts he is a very, very smart man. It was brains and will alone that drove Redstone from relatively humble beginnings as head of his family's chain of more than 1,500 movie theaters, National Amusements, which his father had started as a single Long Island drive-in with money supplied mostly, as Judith Newman reported in a 1999 Vanity Fair profile, by an infamous Boston bookie. By now almost everyone knows Redstone's backstory, how, after narrowly surviving a 1979 fire at Boston's Copley Plaza Hotel that left his right hand a gnarled claw and his legs severely burned, he re-dedicated himself to business, a commitment that in 1986 led to his out-of-the-blue, all-or-nothing takeover of Viacom, then to the massive 1993-94 battle in which he bested Barry Diller and half the moguls in Hollywood for control of Paramount, then to the 2000 merger with CBS, then to the decision last year, enacted in the face of Viacom's sagging stock price, to split the operations of Viacom and CBS into separate companies. Through it all Redstone remained cantankerous and combative, a C.EO. who viewed his stock price as a barometer measuring his self-worth and, above all, a tireless worker who spent every waking hour in his Times Square office because ... well, he had nothing else to do. (Redstone is so obsessed with his stock price that his Lincoln Town Car is outfitted with a DirecTV satellite dish on the roof so that he can watch CNBC.) What private life Redstone had was relegated to hotel suites in Manhattan, first at the Carlyle hotel, later at the St. Regis. He was alone there, separated from his wife of more than 50 years, Phylls. What changed it all, as so often happens, was a woman. At the heart of Redstone's new life, in fact, is an unlikely love story, one he and Paula haven't discussed publicly until now. It began in 2001. Phyllis lived quietly in Boston, while he worked in New York. During the 1990s, Redstone more or less openly dated other women, notably Christine Peters, ex-wife of producer Jon Peters, Nothing, however, appeared to soften his sharp edges; subordinates viewed him as a crabby old man who scoffed at executives who left before seven at night. A number of associates felt steady companionship might make him happier, or at least make his twilight years less lonely. One of Redstone's brokers at Bear Stearns, Steven Sweetwood, who supervises Viacom's stock-

Highly Confidential VIA 09076935 buyback plans, was ruminating about the situation with another Bear Stearns executive when the second executive mentioned that his wife had a friend, an elementary-school teacher, who had never married. The two Wall Streeters conspired to arrange a blind date. "Let me tell you the story," Paula Redstone says. A slim, attractive brunette, she leans forward on the edge of a sofa to Redstone's left, elbows on knees, as we talk. The two have been inseparable since marrying in April 2003, never spending a night apart, At industry conferences, parties, and just about anywhere Redstone is seen these days, she is at his side. Lately she's even been spotted sitting in on meetings at Viacom, trying to better understand Redstone's business. Paula is a cardiologist's daughter from Toms River, New Jersey, a middle child who attended American University, in Washington, D.C., with no raging career ambitions. She worked for a pharmaceutical company but hated it, then spent several years as a receptionist in New York's Garment District. In her mid-20s she decided to pursue her one dream: to become a pastry chef. She worked in restaurants in Philadelphia, London, Palm Beach, and New York for several years before the long hours left her burned out. During a soul-searching talk, her mother, a nurse, suggested she try teaching. Paula leapt at the idea, enrolled at New York University, and, her certificate in hand, began teaching third-graders at P.S. 158, on Manhattan's Upper East Side. For 13 years she loved the work, enjoying a circle of friends who often gathered in her one-bedroom apartment, on East 72nd Street, but somehow she never found a partner in life. "I had a relationship here and there, but, you know, I was just tired," she says. "I tried a couple of blind dates, which were disasters. I was happy. I had a great job, great friends. I was fulfilled. When Steven called (about the blind date), I just said, 'No, I'm too tired. Guys in New York are such jerks. They don't pay, they want sex before you even get out of the car.' I remember I actually asked, 'Can this joker even read?' I just said, 'No, I've got to stay home and grade papers.'" Sweetwood, however, would not be denied. "Let me give you his name," he said. "Sumner Redstone." "Wait," she said, "let me get a penciL" "You're kidding, right?" Sweetwood said. "You don't know the name?" "He's not a parent at the school, is he?" she asked. "Because I don't date parents in the schooL." Sweetwood patiently explained that Redstone was chairman of a media conglomerate named Viacom. This meant nothing to Paula. Sweetwood listed Viacom's assets: MTV Networks, Paramount Pictures- all of it. Paula listened, and finally, Sweetwood recalls, "she said, 'For one date, sure.'" Which is how Paula Fortunato, a person utterly oblivious to the ways of Wall Street and Hollywood, arrived one night at a midtown Manhattan restaurant named II Postino with only the vaguest idea who her date really was. She was so pessimistic she stuffed extra cash into her purse in case she needed money for a taxi home, For his part, Redstone says he was intrigued by the idea of meeting a schoolteacher; he says it was about his appreciation for educators, but one suspects the notion of dating someone completely outside his orbit was equally appealing. He was nervous enough that he brought along a Bear Stearns banker and his girlfriend. When Paula walked into the restaurant, "I did take a look at her (and thought), Not bad," he recalls. "She talked about her life at school, making $50,000 a year. I didn't know how she could live." He found her ignorance of his world enchanting. "I remember when I mentioned Barry Diler," Redstone says, "she asked, 'Is he Phyllis Diller's husband?'" "It's true," Paula says, "and, you know, I found him extremely charming. He looks you in the eyes. He listened. He would touch my hand when he spoke. He was a true gentleman. He had so many great stories. And he listened to me. He really did." The first inkling Paula had of her date's prominence was the unusual attention their table was getting. Other diners glanced their way and whispered. The food appeared within minutes, and the service seemed incredibly attentive. As Paula recalls, "It didn't take me long to figure out he"-she smiles at Redstone-"was the one bringing the attention." Redstone telephoned the next day. "I told you," Redstone says with a smile. "Patience is not a virtue." He asked her to a party that evening. She said, "Not tonight." "Are you playing hard to get?" Redstone asked. No, she said. She had parent-teacher conferences that evening. Well, Redstone said, he would pick her up afterward. Paula remembers changing into her cocktail dress in a classroom closet, furiously brushing chalk dust off her hands. Earlier that day Redstone had messengered over a packet of his press clippings. Not to brag, he says: "I was trying to let her know who I was." She was less intimidated by his job than by the fabulous women at the party that night, "These women were so buffed and polished and varnished," she remembers, "and I'm still dusting chalk off my hands,"

Highly Confidential VIA09076936 In no time they were inseparable. Redstone was aghast at her tiny apartment, which he nicknamed "Ratland." He was spending more and more time in Los Angeles, and he begged her to come with him, but she insisted she wouldn't miss school days. So they developed a routine. Every Friday around four o'clock Redstone would sit in his limousine two blocks from P,S. 158, waiting for school to let out; not wanting to be thought a show-off, Paula wouldn't let him come any closer. The limo whisked them to Teterboro Airport, in New Jersey, where Redstone's jet was waiting. They were usually in Los Angeles in time for dinner at Dan Tana's or one of Redstone's other favorite restaurants. At first they stayed at the Beverly Hills Hotel, then the Hotel Bel-Air. Saturday afternoons Redstone exercised while Paula graded papers, Saturday nights they attended parties, at the homes of such Hollywood old-guard couples as Marvin and Barbara Davis and Michael and Shakira Caine. By Sunday afternoon they were back on the plane, jettng east. "I never missed a day of school," Paula says with pride. "That was non- negotia ble." What was it like, she is asked, dating a billionaire? "It was never about the money," says Paula, jaw set firmly. "He was just a great guy. He used to send me lilacs." "I'm ashamed," Redstone says. "I was like a schoolboy." Unfortunately, he was still a married schoolboy. It took almost two years for Redstone to finalize his divorce, a period in which, Paula admits, her family voiced doubts about his intentions. "They didn't really know whether to believe his divorce story," she says. "When we first all found out, how should I put this, we all thought like everyone else thinks: rt's a little odd," says Jim Geswelli, a businessman who is married to Paula's sister. "Sumner is so much older. Then we met him, and, you know, Sumner, he's a very tough person to get to know, as a friend. He's not an easy person to talk to. In the beginning, he didn't seem to talk about too much, As time went by, though, we became great friends, surprisingly. And he and Paula, well, there's a real spark there. You can see it." Today the Redstones are frequent guests at the Geswelli home, in tony New Vernon, New Jersey, staying as long as 10 days during one recent Christmas visit. The Geswells come to Beverly Park whenever they can, although they have to brace themselves for Redstone's hours. "At four o'clock in the morning, he gets on the intercom system and starts going, 'Coffee, coffee, coffee,'" Geswelli says with a sigh. "Over time, you know, he gets louder and louder, and finally, by five, someone goes down to have coffee with him. The day starts off very early there." No one involved can remember exactly how Redstone proposed. "I just remember one day he brought home a whole bunch of rings, and I chose one," Paula says. "At first I didn't wear it in public. I remember one night we were at Marvin and Barbara Davis's, though, and Sumner couldn't stop smiling. We were sitting with Larry King, and Larry said something like 'What's going on with you two?' And Sumner told me to go ahead and show him the ring," Once the divorce went through-Redstone paid an undisclosed sum rumored to be in the hundreds of millions (his spokesperson denies this)-he and Paula married at Temple Emanu-EI, on Fifth Avenue. Tony Bennett sang at the reception. From that point on, friends and associates agree, Redstone was, if not a changed man, a happier man. "He's easier to deal with now," says one Viacom executive. "She's made him easier just to be with. Now, sometimes he talks about something besides business. Everyone at the company just loves her." "There's no question, Paula brings out the better side of Sumner Redstone," Les Moonves told me. "Paula doesn't take any guff from him. She'll say, 'Sumner, behave yourself.' I don't know if it's true, but I hear she gives him demerits if he misbehaves. He's on a point system." Up, Above the World Once he had a new wife, Redstone wanted a home. Just before their marriage, he told Paula he wanted one in Southern California. They looked at several houses before Redstone pushed through the back doors of this one, saw the view, and said, "We'll buy it." The house, which was empty at the time, was actually owned by the next-door neighbor Sylvester Stallone. As Redstone tells it, Stallone had bought it upon hearing that Suge Knight, the rap-music impresario, was interested. Stallone was so happy at the prospect of having Viacom's C.E.O, next door, Redstone boasts, that he sold it to him for $1.5 million beiow list. Paula leads the tour, Redstone shuffling behind. At the end of the living room an entire wall has been replaced with an enormous tank for Redstone's fish. Rounding the corner into the study, one realizes that this is only one of four tanks in the room, each teeming with hundreds of multicolored fish. There are two more in the corridor outside: "Overflow One" and "Overfow Two," Paula calls them. Redstone actually had tiny cameras inserted into the two tanks so that he could watch them on the study's

Highly Confidential VIA09076937 television. "It's so calming," Paula muses. "It's mesmerizing." "I feel attached to them," Redstone volunteers. "If a fish dies, it really affects me." The study, or "the fish room," as Redstone calls it, is the center of his daily routine. After rising at four, he throws on a robe, plops down in a soft chair in the study, switches on CNBC, and begins making his morning calls; there's a tray beside his chair with a bottle of pills on top. His first calls usually go to Les Moonves or the executive who replaced Tom Freston at Viacom, Philippe Dauman, At 6:30-9:30 eastern time-the New York Stock Exchange opens, and Redstone spends the rest of the morning on the phone with Sweetwood at Bear Stearns, quietly orchestrating purchases of Viacom stock; this kind of "repurchase" program is a popular way to boost the price of a company's shares. At one o'clock, just before the market closes in New York, he finally puts the phone down and goes to exercise. Paula shows us the way. Past the screening room, the walls of the home's main hallway are lined with a number of drawings, many by Paula. "See that one?" she says as we stop in front of a folk-artish rendering of Sumner and her on the shore of a lake. Water appears beneath Redstone's feet. "Sumner really likes this one," Paula says, her voice lowering to a mock whisper. "Because it looks like he's walking on water." The drawing was a gift from Tom and Kathy Freston. "I hope we stay friends with Tom and Kathy," she says. "I do, too," Redstone says. On the far side of the house is the exercise area, an indoor pool flanked by a room containing Redstone's treadmill. Every day he spends 20 minutes on it, then 35 on a stationary bike, then 8 minutes or so in the pool. His houseman, Carlos, stands by with a telephone as he swims. "The whole time I'm panting," Redstone interjects, "which is good, because I want to live." He also plays tennis with investor Kirk Kerkorian and Alex Olmedo, the pro at the Beverly Hills HoteL. Outside, Paula leads the way through a small backyard of thick grass, past the pool, and down to the Jacuzzi, with its can of Gillette. The slope beside it was covered with ferns until the day Redstone thought he saw something move and a gardener fished out a six-foot rattlesnake. Now it's a cactus garden. As we cross to the far side of the yard, past the tennis court, Paula leads me through her fruit garden. As she plucks a ripe fig and thrusts it into my hand, I blurt out, awkwardly, whether it will bother her that she won't be having Redstone's children. "Well," she says, not missing a beat, "I look at it like this. I've had 40 children for 13 years. Now our dogs are our children." She takes a deep breath. "I have it all here," she says. "I love my house, I love my husband. I love everything about it." Redstone's afternoon ends after his shave, when he slips back into his robe-"so I'm not sitting in the nude, you know"-and returns to the fish room for more phone calls. Most nights he and Paula dine early with friends, producer Mike Medavoy and his wife Irena; producer Leonard Goldberg and his wife, Wendy; and former Disney head Michael Eisner and his wife, Jane. Bedtime is on the early side. "I would like to go to bed earlier, but Paula won't go to sleep until 10," Redstone says. "No, this is the way it is," Paula says. "He wants 9, I want 11, so we settle at 10." After the tour, Redstone sits down at an outside table, laboriously inscribes a message for me in his 2001 autobiography, A Passion to Win, and smiles. Here with Paula in Beverly Park, he is a very happy man. 'I know what people think," Redstone is saying, glancing around the house, "but there was no way I was going to fade into the distance and live a life of luxury in Beverly Hils." To hear Redstone tell it, his seclusion here in Beverly Park changed little about the way he runs CBS and Viacom, just where he runs them. He's not having a comeback, he growls; he feels he never went away. He is especially irked at his slide in the Vanity Fair New Establishment ranking, mentioning the matter four separate times; he even had his P.R. man, Carl Folta, call the magazine to complain. "The fact is, nothing really important can happen at either (Viacom or CBS) without me clearing it," Redstone says. "That, of course, was the story with Tom Cruise, and with Tom Freston. I guess that caused Vanity Fair to wake up to the idea that I wasn't really stepping away from business." The sequence of events that led to the uproar in Redstone's world today began with the resignation of Mel Karmazin, then the president and chief operating offcer of Viacom and Redstone's heir apparent, in 2004. Suddenly, Redstone was faced with the decision of who would replace Karmazin, and thus who in all likelihood would eventually run the united companies when Redstone retired; Redstone had already made up his mind to step down as C.EO. in three years. The two candidates were obvious: Les Moonves, the hard-charging chairman and C.E.O. of CBS, and Freston, the genial head of MTV

Highly Confidential VIA09076938 Networks, a man who had worked for Redstone since 1986. Redstone chose Freston-and that's where, in retrospect, Redstone says the problem began. Then, as now, MTV was Viacom's crown jewel, accounting for 70 percent of its 2005 revenues and almost all its profit. Tall and craggily handsome, with spiky salt-and-pepper hair, Freston had been on board since its founding, moving up through the ranks to become MTV's C.E.O, in 1987. Shuttling between Los Angeles and New York, he was universally liked on both coasts and inspired genuine loyalty in the ranks. A prominent Democratic fund-raiser who runs in a circle of friends that includes Jimmy Buffett, John Mellencamp, Rolling Stone's Jann Wenner, producer Brian Grazer, William Morris head Jim Wiatt, and Yahoo C.E.O. Terry Semel (as well as the editor of this magazine), Freston is married to an author of relationship-advice books, the former Kathy Law. In New York, they live in the Upper East Side town house that once belonged to Andy Warhol; they also have houses in Beverly Hills and Montecito. "Tom," says one longtime friend, a former studio head, "is a guy who went through life trying to do some good and make some friends-for Viacom, I mean, I have never in my entire life met a single person who didn't like the guy." (Freston, who left for a prolonged Asian vacation following his dismissal, declined comment for this story.) "No, I'll Not Weep" (King Lear, Act II, Scene IV) One evening following Karmazin's announcement, Redstone summoned Freston to his suite at the Carlyle and offered him the job as Viacom's new president-and Redstone's heir apparent, "This was historic," Redstone remembers, a final passing of the torch, a final resolution of the succession issue that had preoccupied Wall Street analysts and journalists for years. "But," Redstone goes on, "when I offered the job to Tom that night, he said, 'Sumner, I'm not comfortable being C.EO. of Viacom. I'd rather just be C.E.O. of MTV Networks.'" Redstone was flummoxed, but accepted Freston's wishes. "That's really when my doubts about Tom began," he adds, The moment Freston left the suite, Redstone called Moonves and ordered him to the Carlyle. "That same evening, I offered the job to Les," he remembers. "And knowing Les-bang!-he takes it so fast." They shook hands on it. It would be announced the next day: Les Moonves, not Tom Freston, was to be Sumner Redstone's successor. Then, the very next morning, Freston contacted Redstone and said he'd had a change of heart. He would accept the job after alL. "I guess he talked it over with Kathy, but I was really in a spot," Redstone says. "I was in a very difficult position. Tom said no, then yes. I had to do something. So, to make everyone happy, I had to split the company." Redstone chuckles when asked about Moonves's reaction to the news. "Let me tell you," he says, "Les wasn't too happy." Redstone divided Viacom into two spheres, CBS and its related businesses for Moonves, with MTV, Paramount, and everything else going to Freston. The split worked so well that the following June, faced with the continuing deterioration of Viacom's stock price, Redstone proposed making it formal, dividing CBS and Viacom into separate companies. In one bold stroke, Moonves and Freston became C.E.O.'s of publicly held companies, something neither man had done before. Few had doubts that Moonves could adapt, but from the beginning there were concerns whether Freston, an inside man all his career, would warm to a C.E.O.'s crucial job, the promotion of his stock to Wall Street. "Frankly, I thought Tom was over his head as a public-company c.E.O.," says one investment banker who knows him. "Half his time as a C.EO. has to be dealing with Wall Street and crap like that. That wasn't what Tom was good at. He's an operating guy." Redstone heard the doubters, but was willng to see how Freston adapted to his new role, which he formally assumed when the split became official last January, If Viacom's stock price is any indication, Wall Street was underwhelmed; thanks in large part to Freston's inability to make any kind of splash in the online world, the stock fell 20 percent in his eight months at the helm. Redstone characterizes this as startling; after all, analysts had forecast CBS stock to be the tortoise, Viacom the hare. "The stock was down 20 percent! And they were supposed to be the hot stock!" Redstone barks, even though in the next breath he admits his own culpability. "I questioned whether it would work out (with Tom). Tom himself said he wasn't comfortable dealing with Wall Street." He sighs. "As good as Tom was running MTV, he was not the best person to run Viacom." The biggest knock against Freston, at least in Redstone's mind, was his failure to buy MySpace, the red-hot Internet site where milions of American teenagers create their own home pages and furiously network, After his dismissal, the newspapers were full of unattributed criticism aimed at Freston for dallying with MySpace for months until Rupert Murdoch's News Corp. swept in and bought its parent company out from under his nose for $580 milion. One question to Redstone makes it clear who was behind those blind quotes. "We lost that deal because Tom was too slow," he says. "That was the

Highly Confidential VIA09076939 problem with Tom. This distinguished him from the way Les would've done that deal, or the way I would have." The Internet represents the future of businesses involved in intellectual property, and as such is a sore spot for Redstone. Viacom's online efforts to date have been patchy and undistinguished, a string of minor acquisitions and, most notably, a new MTV Web site called Overdrive that has flopped-loudly. Which, in retrospect, has made Viacom's inability to buy MySpace all the more painfuL. The irony is that Freston's MTV was the first suitor to begin sniffing around MySpace, in late 2004. Within weeks, Viacom executives were meeting with MySpace executives in earnest. While this was necessary to understand its business, in hindsight Freston made a miscalculation. His approach to MySpace all but ignored the fact that MySpace was already controlled by an Internet company called Intermix, which specializes in spyware and other e-commerce techniques, and that Intermix had an option for the 47 percent of MySpace stock that was still owned by minority partners. MySpace, in effect, was not in control of its own destiny. "You didn't know who was totally in charge there," acknowledges a Via com executive involved in the talks, Then, in the middle of negotiations that spring, the New York attorney general, Eliot Spitzer, sued Intermix for fraud, A Viacom attorney who reported directly to Redstone decreed a halt to the negotiations. "The decision was we had to wait till the Spitzer decision came in," says the Viacom executive. "So the deal just sat there for months and months." Freston, this executive asserts, was powerless to proceed. Freston's alles inside Viacom, meanwhile, portray Redstone as far less interested in MySpace than Freston himself was. Intermix, however, was not inactive during this period, When its executives caught wind of Viacom's interest, they brought in Montgomery & Co" an investment-banking boutique that specializes in new media, and a team of lawyers to consider the sale of Intermix itself, along with its MySpace option. "Clearly, as Viacom got interested, we wanted another offer on the table, so we brought in Fox," says a person on the Intermix team. "Only after that did we plan to go see Viacom. No one thought Viacom would make a deal first. We were laughing because we'd done a lot of deals with Viacom. We knew they'd just send 20 people and have meetings after meetings and never get anywhere." The Intermix adviser, for his part, says Redstone's criticism of Freston is on the mark. "That's just how Viacom was at the time," he says, Once the Spitzer lawsuit was nearing settlement, in the summer of 2005, Murdoch bid $580 millon for Intermix. Montgomery and the lawyers invited Viacom to top it. "Viacom's answer was 'We're not sure we can get to that value-we'll get back to you next week,'" says the Intermix adviser. "But Fox wanted to do the deal that same weekend, so we did." The Viacom executive disputes this, saying he believed Viacom still had until Monday morning to bid. A meeting of Viacom's board was held, at which Freston and two board members, Redstone's daughter, Shari, and Ace Greenberg, chairman of the executive committee of Bear Stearns, urged Redstone to counterbid. "I remember Ace said, 'Don't be afraid to go for it,'" says a person who attended the board meeting, "But Sumner and Philippe Dauman said it was irrational, that Rupert was irrational, that he would pay anything, that they would end up (paying more than) $800 milion." Redstone was incensed. His anger only grew after Murdoch, upon completing the MySpace deal, won back the purchase price and more by selling the right to advertise on MySpace to Google for a stunning $900 million. In Redstone's mind, it was bad enough that Freston had let the world's hottest Internet property get away, but losing it to Murdoch was just too much. "No! Not him!" Redstone bellows, wagging a finger in my face. "I don't want to lose to him. Just like he wouldn't want to lose to me. It was a humiliating experience.... I know Murdoch well. There's no chance of outbidding him! I wanted MySpace before that, before Murdoch got interested. It sat there for weeks while Tom, in his methodical way, was studying it, having committee meetings, doing due diligence. It went on and on and on! Tom let it get away! Les would've grabbed it! So would I! And so we lost it." Afterward, Redstone says, Freston "came over here and sort of apologized, said why he didn't get it. He didn't talk about the period before the Fox offer, and I didn't remind him. I said, 'Look, Tom, you made a mistake. We all do. I'm sure it won't happen again. II This summer, 12 months after the MySpace debacle, and faced with the continuing fall of Viacom's stock, Redstone asked his board to consider whether Freston was the best man for the job, He already had a replacement in mind, his longtime associate Philippe Dauman; Dauman, following a stretch in top positions at Viacom in the mid-1990s, had left to start a small investment-banking company, but remained on Viacom's board. "I gave them all of Tom's strengths and weaknesses, and all of Philippe's," Redstone insists. "The decision was up to the board." While Freston's fate hung in the balance in August, Redstone found himself thrust into a crisis he

Highly Confidential VIA 09076940 insists he never expected: The firing of Tom Cruise, arguably the biggest movie star in the world. Cruise Control As Redstone tells it, he wasn't the first person in his own household to look askance at the string of Cruisian antics over the last year: the manic hopping on Oprah's couch, the Today-show attacks on Brooke Shields for taking antidepressants, and his Katie Holmes thing. It was his wife, Redstone says, who turned on Cruise first, a contention Paula Redstone declines to elaborate on even as her husband makes it. "Paula, like women everywhere, had come to hate him," Redstone declares. ''The truth of the matter is, I did listen to her, but I make business decisions myself." And in terms of business, Redstone claims he felt Cruise was actually costing Paramount money. Cruise's production company, which the actor operates along with producing partner Paula Wagner, was paid $10 million a year to create movies for Paramount, and until this year had a sterling track record, led by the first two Mission: Impossible movies, which grossed around $500 million each worldwide. (Overall, Cruise's films with Paramount have grossed $3 billion worldwide at the box office.) It's the performance of Mission: Impossible nii however, that Redstone seized upon as he and his wife soured on Cruise's public utterances. The movie did excellent business, earning just under $400 milion worldwide, but Redstone felt the actor's extracurricular behavior prevented it from making more. A Cruise spokesperson declined all comment. "When did I decide (to fire him)?" Redstone asks. "I don't know. When he was on the Today show? When he was jumping on a couch at Oprah? He changed his handler, you know, to his sister-not a good idea. His behavior was entirely unacceptable to (my wife,) Paula, and to the rest of the world. He didn't just turn one (woman) off, He turned off all women, and a lot of men.... He was embarrassing the studio. And he was costing us a lot of money. We felt he cost us $100, $150 millon on Mission: Impossible II. It was the best picture of the three, and it did the worst." The deal with Cruise/Wagner Productions was scheduled to lapse at the end of August. Redstone indicates he decided to cut ties to the company sometime last spring, waiting until the July time frame to notify Freston and Paramount's C.E,O., Brad Grey. "I made my decision without their support; I didn't tell anyone for months," Redstone says. "But (eventually) I made my position clear to Tom and Brad, that he should be off the lot. They had some concerns," In fact, Freston and Grey realized that "firing" an actor with Cruise's visibilty and track record, a highly unusual if not unprecedented move, would trigger a severe backlash in Hollywood's creative community. Still, it was Redstone's company, and they were his employees. "This wasn't just Sumner-he had a right to feel the way he did," says a person involved in Paramount's deliberations. "I mean, women didn't go see the movie, because of Tom Cruise's behavior, It showed up in the research." Freston and Grey, this person says, had put a lowball bid on the table to renew the contract-$2.5 millon, by all accounts-and everyone involved realized that both sides would probably allow the deal to quietly lapse. "The negotiations had started when Sumner weighed in," this person says. "Brad had to get rid of the offer, which is a hard thing to do. They were working toward that. They understood where Sumner was coming from. They really did. They were trying to pull (the offer) back, and when they were trying to do that, Sumner went public. That's when everything hit the fan." Redstone characterizes his decision to "go public" as entirely an accident. A savvy Wall Street Journal reporter, Merissa Marr, caught wind of the story and telephoned Redstone at his home, and Redstone told her everything, castigating Cruise for his behavior. Redstone acknowledges his comments were unnecessary, but he brushes aside any suggestion he went public merely to re-assert his role as Viacom's alpha dog. Still, there's no denying the sparkle in his eyes as he recounts the reaction to his comments. Clearly, he loved every minute of it. "I wasn't looking for an explosion," Redstone insists, "but I didn't mind it. The explosion was good. It sent a message to the rest of the world that the time of the big star getting all this money is over. And it is! I would like to think that what I did, or what we did, has had a salutary effect on the rest of the industry." The problem, though, was that Redstone's comments severely undercut Freston's and Grey's authority. "Tom was very upset and registered it with Sumner," says a close Freston ally. "That was probably not a good thing. What bothered him was that Brad should've been handling this. This was not for Sumner to reach down into the company and do this, because it was demoralizing for Paramount, and demoralizing for Viacom. This was something Tom felt Brad was handling." Freston was also irked at a quote Redstone gave the Los Angeles Times, to the effect that firing Cruise was diffcult for Freston

Highly Confidential VIA09076941 because "he's in the talent business," Says a longtime Freston friend, "When I saw that, I thought, Wait a minute. That was a personal shot at Tom Freston that was unnecessary. Freston was upset. I know he was, But I don't think he thought he was going to get fired. That came as a complete surprise." Endgame It took six weeks for Viacom's board of directors to decide Freston's fate, a period in which Freston himself had no inkling he stood on the precipice. Late on the Monday afternoon of Labor Day, he had just finished a game of tennis with Terry Semel at legendary studio head Bob Evans's Beverly Hills estate when he found several insistent messages from Redstone on his cell phone. He drove home before callng Redstone back, both because he wanted to listen to the new Bob Dylan CD, Modern Times, and because he preferred to talk to Redstone from his home office. When the two finally spoke, Redstone summoned Freston to Beverly Park. Friends say Freston had no reason for concern; he often visited Redstone at his home, and while he disagreed with the way Redstone had handled the Cruise matter, there had been no suggestion that his job was in jeopardy. Redstone was waiting in the living room; Paula had asked "to disappear, for obvious reasons," Redstone says. He goes on: "I talked to Tom right where you're sitting now. I said to him the same things I've said to you, that mistakes had been made, that it was time to make a change. It was then that I reminded him that he himself had expressed doubts about being C.EO., and-these were his exact words-he said, 'But, Sumner, I thought I was growing into it.' And I thought this was a clear indication he knew he was not there yet." "Tom was totally blindsided," says a Freston friend. "The whole thing was over in 20 minutes. This was how Sumner treated a man who had worked for him 20 years." Freston's firing was deeply unpopular at Viacom, especially at MTV, and news of it was greeted with disbelief all across Hollywood. Two months later, things are finally beginning to calm down, Freston walked away with a compensation package worth $72 million, plus $10 million in stock and options. At the time I saw Redstone, in late September, Viacom stock was up 11 percent. Redstone and Dauman, meanwhile, have spent long hours holding the hands of Freston's many friends and supporters who remained behind, including MTV's C.E.O., Judy McGrath, and they have so far been successful at heading off any mass exodus. Redstone has repeatedly emphasized that Freston's most visible hire, successful, driven Paramount head Brad Grey, is safe in his job. Of course, he said the same thing about Freston barely six weeks before dumping him. The real question is Redstone's future. "He'll tell you he's never going to die," says one studio chief. "What does that mean? Only a guy who is afraid of dying says he's never going to die. Clearly, he's afraid to die. I think that's why he always feels so threatened by people like Freston." Adds Sue Mengers, "Sumner does not want to let go of that ledge." Redstone's daughter, Shari, director of National Amusements, remains his heir apparent, but already there are rumblings of a squabble among those in Redstone's circle who favor Dauman instead. When I asked Redstone about this, there was a pause. "Now you're putting me on the spot," he begins. 1I0riginally, in my will ... " When Paula shoots him a look, Redstone abruptly changes tack. "It will depend on the board," he says, When it's pointed out that this is a non-answer, Redstone says, "I'll be dead. There's no way I leave this job before I die." Pressed further, Redstone says Shari's future "is subject to two points. That she would want to (succeed me). And the boards of both companies would have to approve her." Through a spokesman, Shari Redstone declined comment. The question of succession is forgotten until the interview ends, when Redstone rises for the first time in two solid hours. Suddenly he stumbles, his knees buckle, he pitches to his right and begins to falL. He catches himself on a chair just as Paula lunges to his side, wrapping her arms around his torso and helping him stand. Just as she lets go, though, he begins to fall again. This time she eases him back into his chair. "I'm fine, I'm fine," Redstone mutters. "I should've put his feet up," Paula says. I'm too embarrassed to ask whether this is an ongoing problem. After a bit, Redstone rises and follows us through the house. He is a billionaire, a man who dictates the collective fate of thousands of lives, but as he stands there waving good-bye, his eyes no longer as steady as they were an hour before, one is reminded there are some things in life even a mogul can't control. Bryan Burrough is a Vanity Fair special correspondent.

Highly Confidential VIA09076942 Schapiro Exhibit 196 1 UNITEDSTATESDISTRICTCOURT FORTHESOUTHERNDISTRICTOFNEWYORK

VIACOMINTERNATIONAL,INC.,COMEDY) PARTNERS,COUNTRYMUSIC.) TELEVISION,INC.,PARAMOUNT) PICTURES CORPORATION, and BLACK ) ENTERTAINMENTTELEVISION,LLC,) ) Plaintiffs, ) ) vs. )NO.07-CV-2203 ) YOUTUBE,INC.,YOUTUBE,LLC,) andGOOGLE,INC., ) ) Defendants. ) ______) ) THEFOOTBALLASSOCIATIONPREMIER) LEAGUE LIMITED, BOURNE CO., et al.,) on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) vs. )NO.07-CV-3582 ) YOUTUBE, INC., YOUTUBE, LLC, and ) GOOGLE,INC.,) ) Defendants. ) ______)

VIDEOTAPEDDEPOSITIONOFSUZANNEREIDER SANFRANCISCO,CALIFORNIA FRIDAY, OCTOBER 3, 2008

BY:ANDREAM.IGNACIOHOWARD,CSR,RPR,CLR CSR LICENSE NO. 9830 JOB NO. 15910 2 1 OCTOBER 3, 2008

2 9:01 a.m.

3

4 VIDEOTAPEDDEPOSITIONOFSUZANNEREIDER,

5 SHEARMAN & STERLING, 525 Market Street,

6 San Francisco, California, pursuant to notice,

7 before ANDREA M. IGNACIO HOWARD, CLR, RPR, CSR

8 License No. 9830.

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DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 3 1 APPEARANCES:

2

3 FORTHEPLAINTIFFSVIACOMINTERNATIONALINC.:

4 SHEARMAN&STERLINGLLP

5 By: KIRSTEN NELSON CUNHA, Esq.

6 599 Lexington Avenue

7 New York, New York 10022-6069

8 (212) 848-4000 [email protected]

9

10 SHEARMAN&STERLINGLLP

11 By: BENJAMIN HUGHES, Esq.

12 525 Market Street

13 San Francisco, California 94105

14 (415) 616-1100 [email protected]

15

16 FORTHELEADPLAINTIFFSANDPROSPECTIVECLASS:

17 BERNSTEINLITOWITZBERGER&GROSSMANNLLP

18 By: JOHN C. BROWNE, Esq.

19 1285 Avenue Of The Americas

20 New York, New York 10019

21 (212) 554-1533 [email protected]

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DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 4 1 A P P E A R A N C E S (Continued.)

2

3 FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and

4 GOOGLE,INC.:

5 MAYERBROWNLLP

6 By: BRIAN WILLEN, Esq.

7 DAVID MCGILL, Esq.

8 1675 Broadway

9 New York, New York 10019

10 (212) 506-2146 [email protected]

11

12 ALSOPRESENT:

13 GOOGLE

14 By: ADAM L. BAREA, Litigation Counsel

15 1600 Amphitheater Parkway

16 Mountain View, California 94043

17 (650) 214-4879 [email protected]

18

19 LOU MEADOWS, Videographer.

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DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 43 1 REIDER

2 09:47:57 fold, chances are that's not -- the user hasn't seen

3 09:48:02 that ad.

4 09:48:03 Q What does "below the fold" mean?

5 09:48:05 A Well, if you look at your computer, you see a

6 09:48:08 certain amount of stuff that's above, where the usual

7 09:48:10 computer monitor, and there's a certain amount of

8 09:48:13 stuff that's below. So it's a -- it's a very common

9 09:48:15 term used in interactive media, "above the fold,"

10 09:48:20 "below the fold."

11 09:48:21 Q Does every web page have a fold?

12 09:48:25 A Depends on the size of the monitor.

13 09:48:36 Q You mentioned the display advertisement could

14 09:48:39 appear on YouTube's Watch Page.

15 09:48:41 What is the Watch Page?

16 09:48:42 A So on -- I mentioned on Partner Watch, so the

17 09:48:48 Watch Page is a page-type that we use to describe

18 09:48:53 where videos are seen, and the -- a display ad will

19 09:49:02 only show on a Watch Page today where we have a direct

20 09:49:08 relationship.

21 09:49:12 Q A direct relationship with who?

22 09:49:15 A The content partner.

23 09:49:16 Q And what do you mean by the "content

24 09:49:19 partner"?

25 09:49:22 A YouTube has content partners, companies like

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 44 1 REIDER

2 09:49:27 Ford Models, National Geographic, LisaNova, Smosh,

3 09:49:32 Lonelygirl, et cetera. We consider them all content

4 09:49:36 partners.

5 09:49:38 Q And do the content partners upload content

6 09:49:41 onto YouTube?

7 09:49:42 A The content partners have contractual

8 09:49:46 agreements with YouTube. They upload content to

9 09:49:51 YouTube, and -- and we have a relationship, and

10 09:49:54 they -- they also share in the revenue that's

11 09:49:58 generated from there.

12 09:50:04 Q Why do you only display advertisements for

13 09:50:10 partners with whom you have a direct relationship on

14 09:50:13 the Watch Page?

15 09:50:15 A Because we're the -- we only want to monetize

16 09:50:24 content that we are sure is authorized, so we need to

17 09:50:30 have a relationship with a content partner so that we

18 09:50:36 feel good about that.

19 09:50:37 Q Authorized by whom?

20 09:50:42 A Ask the question.

21 09:50:43 Q Authorized by whom/who, maybe, if my English

22 09:50:47 is wrong?

23 09:50:49 A Well, we don't want to -- we don't want to

24 09:50:52 serve ads on anything when we don't know expressly who

25 09:50:59 did the -- the party that has uploaded the content is

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 45 1 REIDER

2 09:51:04 authorized to upload that content.

3 09:51:06 Q Why not?

4 09:51:13 A Because it wouldn't -- it's not appropriate

5 09:51:14 for us to monetize or to serve ads on content when we

6 09:51:19 don't expressly know and -- who the content owner is.

7 09:51:23 Q Why, in your view, is that not appropriate?

8 09:51:28 A Well -- so there's two reasons. One has to

9 09:51:34 do with the brand advertiser and having a sense of the

10 09:51:40 environment in which their ad will show. And the

11 09:51:43 other has to do with just the business practice that

12 09:51:49 YouTube, you know, works very hard to work with the

13 09:51:55 rights holders and to make sure that we have a sense

14 09:51:57 of what content is that we're serving ads on.

15 09:52:04 Q Are there any other reasons, in -- in your

16 09:52:13 view, why it would not be appropriate to monetize or

17 09:52:18 serve ads on content when YouTube doesn't expressly

18 09:52:21 know who the content owner is?

19 09:52:23 A Well, I'm thinking present day, so I'm

20 09:52:25 thinking what we do on our Watch Pages today.

21 09:52:25 Q Uh-huh.

22 09:52:28 A And so, again, there's two parts of it. We

23 09:52:31 want the content partners to be able to enjoy revenue

24 09:52:34 on this platform and have this be a really powerful,

25 09:52:39 viable distribution platform for them. So that's the

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 46 1 REIDER

2 09:52:42 first piece of it.

3 09:52:43 And then the second piece of it is, we need

4 09:52:47 to have a sense of who has -- the party that's

5 09:52:51 uploaded the content so that we have a -- a good

6 09:52:53 positioning of that content back to the advertising

7 09:52:55 community.

8 09:53:01 Q What do you mean by "positioning of that

9 09:53:02 content back to the advertising community"?

10 09:53:06 A I mean that advertisers don't want their ads

11 09:53:11 to just, you know, show up anywhere. So they want to

12 09:53:16 have a sense of what -- what's the content.

13 09:53:19 We're talking specifically about -- right now

14 09:53:23 we're talking about, specifically about -- about the

15 09:53:26 Watch Page and what we call the InVideo ad unit and

16 09:53:32 that whole execution that happens on a Watch Page.

17 09:53:35 Q Right.

18 09:53:35 A So I just want to be very clear that's what

19 09:53:38 we're talking about. And on that Watch Page today, it

20 09:53:42 is important that an advertiser has an understanding

21 09:53:46 of the content so that if you are -- if you are

22 09:53:52 Ann Taylor and you want to be advertising on partner

23 09:53:57 content that is fashion-oriented, then we need to have

24 09:54:01 a good sense of the -- of the content that their ad is

25 09:54:06 gonna show up on.

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 47 1 REIDER

2 09:54:08 Q Now, you were speaking, and you just pointed

3 09:54:15 out --

4 09:54:16 MR. WILLEN: Do you -- do you need a break?

5 09:54:17 I'm sorry to interrupt.

6 09:54:19 MR. BROWNE: No. Sure.

7 09:54:21 MR. MCGILL: I actually wouldn't mind taking

8 09:54:26 a restroom break.

9 09:54:26 THE WITNESS: Yeah, just a quick one would be

10 09:54:26 good.

11 09:54:26 MR. MCGILL: Is that all right?

12 09:54:26 MR. BROWNE: Sure.

13 09:54:27 THE VIDEOGRAPHER: Off the record. The time

14 09:54:28 is 9:54.

15 09:54:33 (Recess taken.)

16 10:06:07 THE VIDEOGRAPHER: On the record. The time

17 10:06:10 is 10:05 a.m.

18 10:06:12 Please continue.

19 10:06:13 MR. BROWNE: Q. Now, Ms. Reider, before the

20 10:06:15 break we were discussing various aspects of the

21 10:06:17 Partner Watch Page and -- and advertising on that page

22 10:06:21 as it exists today on YouTube.

23 10:06:23 Is it different today then it has been in the

24 10:06:29 past?

25 10:06:32 MR. WILLEN: Objection as to time.

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 49 1 REIDER

2 10:08:14 Q Sure.

3 10:08:14 A I think it's not formed quite right.

4 10:08:16 Q What did the -- what did the Partner Watch

5 10:08:18 Page look like when you first started at YouTube, with

6 10:08:21 respect to advertisements?

7 10:08:26 A I believe that when I first started at

8 10:08:28 YouTube, that on the -- on that page, I think there

9 10:08:34 was a display.

10 10:08:37 Q What do you mean by "a display"?

11 10:08:40 A That there was an ad on the -- a different ad

12 10:08:44 format on the -- on that page type.

13 10:08:47 Q Do you mean a display as opposed to a video,

14 10:08:55 or do you mean something else?

15 10:09:02 A The -- the -- from -- the original dimension

16 10:09:07 was a 728 x 90, which is different than what we have

17 10:09:14 today.

18 10:09:16 Q Is it larger or smaller?

19 10:09:25 A I don't know. I'd have to do the -- I mean,

20 10:09:27 I'd have to calculate the dimensions to figure that

21 10:09:29 out.

22 10:09:40 Q I want to step outside of the Partner Watch

23 10:09:42 Page for a minute and just talk about the regular

24 10:09:44 Watch Page.

25 10:09:45 Does YouTube display advertisements on --

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 50 1 REIDER

2 10:09:49 today, on the Watch Pages?

3 10:09:54 A No.

4 10:09:56 Q None at all?

5 10:09:58 A YouTube doesn't serve ads onto Watch Pages

6 10:10:03 unless we have a specific relationship with the

7 10:10:05 content partner for that page.

8 10:10:09 Q Just so there's no ambiguity at all, does

9 10:10:13 that mean that there are not -- there are no

10 10:10:16 advertisements on Watch Pages unless YouTube has a

11 10:10:19 specific relationship with the content partner for

12 10:10:21 that page?

13 10:10:25 MR. WILLEN: Objection.

14 10:10:25 You've asked the question; she's answered it,

15 10:10:27 but go ahead.

16 10:10:28 THE WITNESS: There is ambiguity, because it

17 10:10:30 is perfectly possible that somebody who's uploaded a

18 10:10:36 video to YouTube has embedded whatever they want to

19 10:10:42 embed within their video.

20 10:10:44 MR. BROWNE: Q. But YouTube wouldn't receive

21 10:10:46 any money from that type of advertiser; right?

22 10:10:50 A No.

23 10:10:50 Q Now, was there a time, at any point in time,

24 10:11:01 that -- that YouTube did serve advertisements on the

25 10:11:04 Watch Page?

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 51 1 REIDER

2 10:11:04 A Yes.

3 10:11:04 Q And when did they do that?

4 10:11:07 A It was happening when I joined the company.

5 10:11:12 Q And that was approximately September of 2006?

6 10:11:17 A Yes.

7 10:11:17 Q What types of -- what format did the

8 10:11:23 advertisements take on the Watch Pages as of that

9 10:11:27 time, September 2006?

10 10:11:32 A From what I recall, again, this is over two

11 10:11:36 years ago now, it was what is called a display ad or a

12 10:11:39 banner ad or a 728 x 90.

13 10:11:45 Q And that ad was, at that time in

14 10:11:53 September 2006, was displayed on the Watch Page

15 10:11:55 regardless of whether YouTube had a direct

16 10:11:58 relationship with the content provider; is that

17 10:11:59 correct?

18 10:12:00 A That's correct. I believe so.

19 10:12:04 Q And did YouTube --

20 10:12:04 THE VIDEOGRAPHER: I'm getting BlackBerry

21 10:12:04 interference right now.

22 10:12:17 THE WITNESS: It's not me.

23 10:12:17 (Discussion off the record.)

24 10:14:47 MR. BROWNE: Q. And during the time that

25 10:14:48 YouTube displayed ads on the Watch Page page,

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 175 1 REIDER

2 14:25:53 MR. WILLEN: Objection; vague; ambiguous.

3 14:25:59 THE WITNESS: To the best of my -- I mean,

4 14:26:04 it's an algorithm. The -- the search results that

5 14:26:08 come up are algorithmically generated.

6 14:26:12 MR. BROWNE: Q. An algorithm put in place by

7 14:26:15 YouTube?

8 14:26:16 A I -- I'm not an engineer, so I don't know

9 14:26:18 exactly what all the parts of the algorithm are, but

10 14:26:23 when you search on YouTube, there's an algorithm that

11 14:26:28 is going to call up what these search results are.

12 14:26:31 Q Are there any particular advantages that

13 14:26:35 you're aware of for an advertiser to sell

14 14:26:39 advertisement linked to a particular search page, such

15 14:26:44 as the one that we've been talking about?

16 14:26:46 A Can you say that -- the question, I'm not

17 14:26:47 sure.

18 14:26:48 Q Yeah.

19 14:26:48 Well, what reason, if any, would an

20 14:26:51 advertiser find it useful to sell advertisement that's

21 14:26:56 keyed to a particular search?

22 14:26:59 MR. WILLEN: Objection; it calls for

23 14:27:00 speculation.

24 14:27:02 MR. BROWNE: Not really, because I said "if

25 14:27:04 any," but....

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2 14:27:04 MR. WILLEN: No, you were asking for her to

3 14:27:05 speculate about what advertisers were thinking.

4 14:27:12 THE WITNESS: So advertising is usually more

5 14:27:17 useful when it's relevant. So if you're the adult

6 14:27:27 male, age 35 to 54, and that's your demographic, and

7 14:27:30 you're searching for something, then it would usually

8 14:27:32 be -- it's going to be a better result if you see an

9 14:27:35 ad that is targeted.

10 14:27:38 MR. BROWNE: Q. Does YouTube then match up

11 14:27:41 certain advertisements with certain search results or

12 14:27:48 searches?

13 14:27:51 MR. WILLEN: Hold on.

14 14:27:56 Objection. I think it's a compound question.

15 14:27:58 Are you asking about search results or are

16 14:27:59 you asking about searches?

17 14:28:01 MR. BROWNE: I think you're right, so I'll

18 14:28:03 withdraw that.

19 14:28:03 Q I said does YouTube match up advertisements

20 14:28:09 with certain searches?

21 14:28:23 A So there's not a direct match. There's not a

22 14:28:29 direct match.

23 14:28:29 Q Is there an indirect match?

24 14:28:38 A Certain -- a certain search, if you search

25 14:28:43 for the word "funny," then that would be matched to

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 177 1 REIDER

2 14:28:47 the -- you would imagine -- I'm using this

3 14:28:51 hypothetically -- but to ads that have asked to target

4 14:28:56 things that are entertainment.

5 14:28:58 Q And is that what's meant in the bullet point

6 14:29:01 we looked at that said, "Search pages, search and

7 14:29:04 category pages present content related to user

8 14:29:07 interest at the moment of relevance."

9 14:29:08 A Yeah.

10 14:29:09 Q And then that bullet point talks about -- it

11 14:29:15 goes on to say "Creating an attractive,

12 14:29:17 contextually-relevant placement."

13 14:29:21 Is a -- is -- is a contextually-relevant

14 14:29:25 placement a positive from an advertiser's perspective?

15 14:29:30 MR. WILLEN: Objection; calls for

16 14:29:31 speculation.

17 14:29:31 THE WITNESS: I think it -- again, it's going

18 14:29:34 to depend. There are some advertisers who just

19 14:29:36 want -- just, you know, what we call "shot gun," just

20 14:29:42 as many people as I can get for a low number. There

21 14:29:47 are adverti- -- advertisers that have something very

22 14:29:48 specific that think they're going to -- they want to

23 14:29:50 achieve, so they want a much more specific result.

24 14:29:57 MR. BROWNE: Q. So certain advertisers, at

25 14:29:59 least in certain circumstances, it's a positive?

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2 14:30:02 A For certain advertisers in certain

3 14:30:05 circumstances it could be a positive.

4 14:30:09 Q You know, maybe this -- this little page is a

5 14:30:12 little bit small, but maybe if we go back to Reider

6 14:30:15 Exhibit 3 --

7 14:30:15 A Okay.

8 14:30:16 Q -- and go to the Bates page numbered 5144,

9 14:30:20 and it's entitled "YouTube Search Results," this was

10 14:30:24 the "Advertising with YouTube" exhibit.

11 14:30:25 A Yeah, as we get in -- so what page is that

12 14:30:29 exactly?

13 14:30:30 Q I'm sorry. 5144, is how it ends.

14 14:30:35 A 5144. So it's important to point out that

15 14:30:39 this deck is from March '07, and this here is from

16 14:30:44 February of 2008.

17 14:30:47 Q Okay.

18 14:30:50 When you said "this here," what did you mean?

19 14:30:53 A So Exhibit 9 --

20 14:30:53 Q Uh-huh.

21 14:30:54 A -- is a piece of collateral. I know you

22 14:30:57 printed it from the website, but it's a -- it's from a

23 14:30:59 piece of collateral that was produced for an event

24 14:31:04 that was in February of 2008, and this, that we're

25 14:31:07 looking at here, 305144 from the March 2007 deck....

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585 Schapiro Exhibit 197

Schapiro Exhibit 198

Schapiro Exhibit 199

Schapiro Exhibit 200

Schapiro Exhibit 201

Schapiro Exhibit 202

Schapiro Exhibit 203 Page 1 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. )Case No. 1:07CV02103 ) YOUTUBE, INC., YOUTUBE, LLC, ) andGOOGLE,INC., ) ) Defendants. ) ______) ) THE FOOTBALL ASSOCIATION PREMIER ) LEAGUE LIMITED, BOURNE CO., et al.,) on behalf of themselves and all ) others similarly situated, ) ) Plaintiffs, ) vs. )Case No. 07CV3582 ) YOUTUBE, INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ______)

DEPOSITION OF PATRICK WALKER

SAN FRANCISCO, CALIFORNIA

TUESDAY, JULY 22, 2008

REPORTED BY:

YVONNE FENNELLY, CRP, CSR NO. 5495

JOB NO. 15375

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7 VIDEOTAPED DEPOSITION OF PATRICK WALKER, 8 held at the offices of SHEARMAN & STERLING, 9 525 Market Street, San Francisco, California, 10 pursuant to notice, before YVONNE FENNELLY, CRP, 11 CSR License No. 5495.

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ae177175-74c3-4b94-b31f-060f4be407eb Page 3 1 APPEARANCES 2 3 FOR THE LEAD PLAINTIFFS AND PROSPECTIVE CLASS: 4 PROSKAUER ROSE, LLP By: HAL S. SHAFTEL, Attorney at Law 5 1585 Broadway New York, N.Y. 10036-8299 6 (212) 969-3230 (212) 969-2900 7 [email protected] 8 9 FOR THE PLAINTIFF VIACOM INTERNATIONAL, INC.: 10 JENNER & BLOCK, LLP By: SARAH A. MAGUIRE, Attorney at Law 11 1099 New York Avenue, NW Suite 900 12 Washington, DC 20001 (202) 639-6000 13 (202) 661-4916 [email protected] 14

15 FOR THE CLASS PLAINTIFFS: 16 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 17 By: DAVID S. STELLINGS, Attorney at Law 780 Third Avenue 18 48th Floor New York, New York 10017-2024 19 (212) 355-9500 (212) 355-9592 20 [email protected] 21

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ae177175-74c3-4b94-b31f-060f4be407eb Page 4 1 APPEARANCES (Continued): 2 3 FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: 4 WILSON SONSINI GOODRICH & ROSATI 5 By: BART E. VOLKMER, Esq. 650 Page Mill Road 6 Palo Alto, California 94304-1050 (650) 493-9300 7 [email protected] 8 9 FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC and GOOGLE, INC.: 10 MAYER BROWN, LLP 11 BY: MATTHEW INGBER, Attorney at Law 1675 Broadway 12 New York, New York 10019 (212) 506-2500 13

14 FOR GOOGLE, INC.: 15 GOOGLE, INC. 16 BY: ADAM L. BAREA, Litigation Counsel 1600 Amphitheatre Parkway 17 Mountain View, California 94043 (650) 214-4879 18 (650) 618-1806 [email protected] 19

20 ALSO PRESENT: Lou Meadows, Videographer 21 --oOo-- 22

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210:08 behalf of the MNPA and some other class representatives.

310:09 MR. INGBER: I'm Matthew Ingber, of Mayer

410:09 Brown, LLP representing Defendants YouTube and Google.

510:09 MR. VOLKMER: Bart Volkmer, from Wilson,

610:09 Sonsini, Goodrich & Rosati, representing the defendants.

710:09 MR. BAREA: Adam Barea, in-house counsel at

810:09 Google.

910:09 THE VIDEOGRAPHER: Thank you.

1010:09 If there are no stipulations, the court

1110:09 reporter may now administer the oath.

1210:09 PATRICK WALKER,

1310:09 having been duly sworn, testified as follows:

1410:09 EXAMINATION

1510:09 BY MR. SHAFTEL:

1610:09 Q. Good morning, again, Mr. Walker.

1710:09 We were introduced off the record, but let me

1810:09 formally state my name is Hal Shaftel. I'm going to ask

1910:09 you some questions during the course of the day.

2010:09 A. Uh-huh.

2110:09 Q. If at any point in time you don't understand a

2210:09 question I'm asking, let me know and I will see if I

2310:09 could rephrase or reformulate it.

2410:09 We should try to avoid talking over each other,

25 and if you could make your responses audible rather than

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210:10 a shake or a nod of the head, it will make for a clearer

310:10 record and help Ms. Fennelly out as she prepares the

410:10 transcript.

510:10 Does that all make sense to you?

610:10 A. Yes, it does.

710:10 Q. What is your present position of employment?

810:10 A. I'm the director of video partnerships for

910:10 Google and YouTube, based in London, England.

1010:10 Q. And you say you're based in London, England.

1110:10 Do your responsibilities as director of video

1210:10 partnerships extend to a particular geographic area?

1310:10 A. Yes. They extend to Europe, Middle East and

1410:10 Africa.

1510:10 Q. And how long have you had that position?

1610:10 A. I'm been employed by Google since January of

1710:10 2006 and took on responsibility for Google Video at the

1810:11 time. At the time I was employed that extended to

1910:11 YouTube after the acquisition at the end of 2006.

2010:11 Q. That was Google's acquisition of YouTube?

2110:11 A. That's correct.

2210:11 Q. If you could briefly described your educational

2310:11 background after high school, at least as that term, if

2410:11 you're familiar, that is used in US jargon?

25 A. Yes. I went to the University of Southern

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210:11 California in Los Angeles and studied journalism and

310:11 international relations. Received my Bachelor of Arts

410:11 there, after which I went and studied for a term in

510:11 Paris at the University of Paris Sorbonne.

610:11 Thereafter I received a certificate in Japanese

710:11 studies at Keio University in Tokyo and continued my

810:11 education at Harvard University with a Master's in

910:11 international educational administration and social

1010:12 policy.

1110:12 Q. What year did you receive your BA from USC?

1210:12 A. 1989.

1310:12 Q. And did you receive a degree from the Sorbonne?

1410:12 A. No, it was a certificate of study for French

1510:12 language, culture and civilization.

1610:12 Q. And what period of time were you studying at

1710:12 the Sorbonne?

1810:12 A. This was in 1988, so it was part of my studies

1910:12 at USC as a semester abroad.

2010:12 Q. I see. You received course credit at USC?

2110:12 A. Course credit; that's right.

2210:12 Q. And then you referenced a university in Tokyo.

2310:12 I don't know if you said K-u?

2410:12 A. Keio. K-e-i-o.

25 Q. In what year did you receive your degree in

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211:06 right holders about that?

311:06 A. Yes.

411:06 Q. During your three months did you approach any?

511:06 A. Yes.

611:06 Q. Did you sign any deals?

711:06 A. No.

811:06 Q. And why did you believe VIIV offered, if you

911:06 did, an attractive mechanism for the content rights

1011:06 holders?

1111:06 A. It was -- it was an environment that was quite

1211:06 new. I felt that it would need to be a strategic play

1311:06 for them. It was not one that would necessarily be a

1411:06 major revenue-generator. But for those that were

1511:06 interested in having a high-quality

1611:06 entertainment/TV-based experience, it would be an

1711:06 interesting thing for them to consider.

1811:06 Q. How were revenues to be generated from VIIV?

1911:07 A. It was early with regard to the solid business

2011:07 models, and I was only there for three months.

2111:07 Q. Were there subscribers to the service?

2211:07 Was it actually operational?

2311:07 A. Yes, it didn't exist yet. These were boxes

2411:07 that were being developed for distribution in a year's

25 time or so.

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211:07 Q. Do you know if it was eventually

311:07 commercialized, VIIV?

411:07 A. Not that I'm aware of.

511:07 Q. And you left in 2005 to go to Google, you said?

611:07 A. No. It was -- I gave my notice at the end of

711:07 2005. I began my role at Google in January -- I think

811:07 January 16th, 2006.

911:07 Q. And I believe you testified that you were head

1011:08 of video content partnerships; is that right?

1111:08 A. I was head of content partnerships here, in the

1211:08 Middle East, and Africa for Google when I was employed.

1311:08 Q. You were at Middle East and Africa. I

1411:08 sometimes see the acronym EMEA; is that right?

1511:08 A. That's correct.

1611:08 Q. Were there other heads of content partnerships

1711:08 when you began in January 2006 for other geographic

1811:08 regions?

1911:08 A. There was someone responsible for content

2011:08 partnerships in North America.

2111:08 Q. Was that David Eun, E-u-n?

2211:08 A. No; this was prior to Dave Eun joining Google.

2311:09 It was Jennifer Feiken.

2411:09 Q. Did you report through -- up through the

25 content, the head of content for North America or were

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211:09 you at the same corporate level as that person?

311:09 A. I reported to Joanna Shields, who at the time I

411:09 was employed was the director of partnerships and

511:09 syndication for Google EMEA, E-M-E-A.

611:09 Q. Do you still report to Ms. Shields?

711:09 A. No.

811:09 Q. Is she still in the position of director of

911:09 syndication for EMEA?

1011:09 A. No.

1111:09 Q. When did she leave that position?

1211:10 A. She left at the end of 2006.

1311:10 Q. Was she replaced?

1411:10 A. No.

1511:10 Q. At this point is there anyone in the role of

1611:10 director of syndication and partnerships for the EMEA?

1711:10 A. No.

1811:10 She left the company, syndication part of the

1911:10 business that she was responsible for, moved under

2011:10 another person, and the content partnerships aspect of

2111:10 her work was managed by myself and two other people that

2211:10 were reporting to her.

2311:10 Q. Who were the two other people?

2411:10 A. There was someone responsible for geo products.

25 I'm sorry. There was one responsible for book

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211:10 search; his name is Jens Redmer. And the other one was

311:10 responsible for Google Local, Google Finance, Google

411:11 Maps to some extent, and Other.

511:11 So there was myself for video partnerships.

611:11 There was Jens for book partnerships. And there was

711:11 this gentleman, Rabin Yaghoubi, who was responsible for

811:11 Google Local, Google Finance, etcetera.

911:11 Q. Do you recall when Ms. Feiken left her position

1011:11 for North America?

1111:11 A. I don't know exactly when it was. I don't

1211:11 remember when it was.

1311:11 Q. Could you place it in a year or a portion of a

1411:11 year?

1511:11 A. It was, I believe, around the end of 2006, but

1611:11 I'm not certain.

1711:11 Q. And is it your recollection that Mr. Eun had

1811:11 stepped into that position upon her departure from the

1911:11 job?

2011:11 A. Mr. Eun joined before. I don't know exactly

2111:12 what the dates are. I don't know what the dates are.

2211:12 Q. So what I'm asking is whether there was any

2311:12 head for content partnerships North America between

2411:12 Ms. Feiken and Mr. Eun?

25 A. I don't think so.

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201:08 people submit content, it could be of any length. It's

301:08 actually very hard to determine. There are a lot of

401:08 very similar programs. There are a lot of programs that

501:08 are produced by individuals that could look similar as

601:08 well.

701:08 I think in -- sorry. I think.

801:08 When I would specify the type of programs to

901:08 look out for, the things that I would suggest they look

1001:09 for would be the opening titles or things that would be

1101:09 obvious to that reviewer.

1201:09 Q. Now, you testified that you communicated to

1301:09 them that they should be on the lookout for the Top Gear

1401:09 content.

1501:09 And by "them," does that mean the three

1601:09 individuals in Dublin?

1701:09 I keep saying "three." The vidiots in Dublin.

1801:09 A. That would be the contents review team.

1901:09 Q. And do you know what they did with that

2001:09 information, whether they implemented a policy to

2101:09 prevent Top Gear content from going live or not, whether

2201:09 that was something they removed?

2301:09 A. They made efforts in response to my requests at

2401:09 times to have a look and make some -- and identify some

25 things that were potentially unauthorized. There was no

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201:10 actual policy implemented.

301:10 Q. Okay.

401:10 So you said that at times you would make

501:10 requests, if I'm understanding.

601:10 So outside of the DMC -- a specific DMC

701:10 notice -- you would communicate to the reviewers in

801:10 Dublin that the BBC is upset about the Top Gear content

901:10 on the site. Could you take some steps to remove Top

1001:10 Gear content?

1101:10 MR. INGBER: Object to form.

1201:10 THE WITNESS: Yes, as I mentioned before, I was

1301:10 quite enthusiastic in my work to make the rights holders

1401:10 comfortable. I was looking to in some ways appease them

1501:10 and provide some proactive lists, as existed in the US

1601:11 for US content, so that we would have a view to keep an

1701:11 eye on things that might be objectionable in Europe.

1801:11 I learned quite quickly and developed over time

1901:11 that this was always going to be ad hoc and

2001:11 unsustainable and very difficult for people to

2101:11 necessarily identify. And my emphasis over time moved

2201:11 to support of greater communication and more tools to

2301:11 help the partners help themselves to identify and remove

2401:11 the content, which is actually what occurred over time.

25 BY MR. SHAFTEL:

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201:11 Q. What lists existed in the US that you refer to?

301:11 A. My understanding is certain programs such as

401:11 Family Guy or, you know, other programs that might be

501:11 popular in the US were things that the team would look

601:11 out for.

701:11 Q. The US team?

801:11 A. Yes.

901:11 Q. And was there a list for European content?

1001:12 A. No. I was providing some guidance as to the

1101:12 types of things they might want to look out for. And

1201:12 this, again, was in the early days of my, I think, lack

1301:12 of understanding of the DMC to a certain extent and an

1401:12 enthusiasm to help the partners come on board. But

1501:12 again, it was one that was inconsistent given whatever

1601:12 knowledge any particular reviewer on any given day might

1701:12 actually have about programs, what they looked like.

1801:12 Q. Now, Mr. Anderson's document refers here to

1901:12 resisting removing Top Gear because it drives traffic.

2001:12 A. Uh-huh.

2101:12 Q. Do you see that?

2201:12 A. Yes.

2301:12 Q. And I believe you testified that there was

2401:12 never resistance to a DMCA takedown notice with respect

25 to Top Gear.

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201:12 Are you aware of any resistance with respect to

301:13 removing Top Gear as part of the review of thumbnails

401:13 for the contents of programs before the programs went

501:13 live?

601:13 A. My understanding, at the time we preferred to

701:13 have specific notification instead of proactive removal

801:13 based on our assessment of what might be potentially

901:13 unauthorized.

1001:13 Q. Okay.

1101:13 Meaning that while knowing the BBC didn't want

1201:13 Top Gear on Google Video, and Google Video would respond

1301:13 to formal takedown notices, that if the thumbnail

1401:13 reviewer spotted Top Gear content, they would not as a

1501:14 matter of practice be deleting it or precluding it from

1601:14 going live?

1701:14 MR. INGBER: Object to form.

1801:14 THE WITNESS: When I provided some lists, there

1901:14 was some initial responsiveness to my request to do some

2001:14 reviews and removals. There was a general feeling that

2101:14 was, as I mentioned, inconsistent, a band-aid, if you

2201:14 like, as opposed to a solution, that was consistent and

2301:14 scaleable.

2401:14 There was a general rule that, and Top Gear was

25 part of this discussion, we should rely on the rights

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201:14 holders to inform us through the formal process if they

301:14 rejected -- if they thought content was unauthorized on

401:14 the system. The debate was about how proactive we

501:14 should be and how easy it was and consistent we could be

601:14 in having human beings review and make proactive

701:15 removals of that.

801:15 BY MR. SHAFTEL:

901:15 Q. Okay.

1001:15 You say "debate." Wasn't it the case that a

1101:15 decision was made not to proactively review Top Gear in

1201:15 the regular course when the thumbnail reviewers would

1301:15 see Top Gear content?

1401:15 MR. INGBER: Object to form.

1501:15 THE WITNESS: All I know is that I made a

1601:15 request to Dublin. They had identified some clips, and

1701:15 what ultimately occurred with regard to removal or not,

1801:15 I don't know. That was a decision back in Mountain

1901:15 View.

2001:15 But the BBC did continue to work with us,

2101:15 collaborate with us. They continued to send takedown

2201:15 notifications, and, you know, we maintained a positive

2301:15 relationship throughout. In fact, they were the first

2401:15 major broadcaster in the world to sign a deal with

25 YouTube once we acquired the company.

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201:16 BY MR. SHAFTEL:

301:16 Q. You say there was a general view that taking

401:16 down infringing materials as part of the thumbnail

501:16 review process was not effective.

601:16 Is that a fair summary of your testimony?

701:16 MR. INGBER: Object to form, vague, ambiguous,

801:16 calls for legal conclusion with respect to "infringing."

901:16 THE WITNESS: I'll speak on behalf of myself.

1001:16 BY MR. SHAFTEL:

1101:16 Q. Well, you said a general view, Mr. Walker, and

1201:16 that's what I want to press you on.

1301:16 You said that there was a general review --

1401:16 sorry -- a general view that it was not Google Video's

1501:17 policy to take down content, including Top Gear content,

1601:17 as part of the thumbnail review process on copyright

1701:17 grounds.

1801:17 MR. INGBER: Objection; mischaracterizes --

1901:17 THE WITNESS: What a complicated question.

2001:17 MR. INGBER: -- the testimony.

2101:17 BY MR. SHAFTEL:

2201:17 Q. Let me ask it this way: Did Google Video

2301:17 decide not to take down Top Gear content as part of the

2401:17 thumbnail review process?

25 MR. INGBER: Objection; asked and answered.

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201:17 THE WITNESS: There was a debate about how

301:18 proactive we should be in identifying removing things

401:18 prior to DMC notification.

501:18 Whether or not they were ultimately removed, I

601:18 don't know.

701:18 BY MR. SHAFTEL:

801:18 Q. You never asked?

901:18 You never asked how that debate came out?

1001:18 A. There was an ongoing discussion about it with

1101:18 different views. What I recall is that I became a

1201:18 greater proponent of the consistency afforded by

1301:18 providing rights holders with the information they

1401:18 needed to provide the takedowns themselves.

1501:18 The problem that we had was that, actually,

1601:18 unlike YouTube, we didn't have an MB5 hash system,

1701:18 meaning that once something was removed from a DMC

1801:18 notification, that same file could be resubmitted and a

1901:18 similar takedown request would need to be submitted.

2001:18 YouTube actually had a system in place whereby,

2101:18 once a video was removed on DMC notification, that same

2201:19 file was blocked from resubmission. Google Video didn't

2301:19 have that technology in place, which created more work

2401:19 on the part of the rights holders to review and then

25 resubmit takedown notifications.

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201:19 Q. You referred to this debate about how proactive

301:19 to be in removing contact on copyright grounds from the

401:19 thumbnail process.

501:19 Did any content owner ever tell you or, to the

601:19 best of your knowledge, anyone at Google Video, that

701:19 they didn't want copyright issues being the basis for

801:19 removing content during the thumbnail review process?

901:19 MR. INGBER: Objection.

1001:19 THE WITNESS: I don't understand.

1101:19 MR. INGBER: Vague.

1201:19 BY MR. SHAFTEL:

1301:19 Q. You said there was a debate what to do during a

1401:19 thumbnail process with copyright issues.

1501:19 A. Yes.

1601:19 MR. INGBER: Objection to the extent it

1701:20 mischaracterizes Mr. Walker's testimony.

1801:20 BY MR. SHAFTEL:

1901:20 Q. Did any content owner ever tell you that they

2001:20 didn't want the thumbnail review process to review for

2101:20 copyright as related to their content?

2201:20 MR. INGBER: Object to form.

2301:20 THE WITNESS: No. The content providers also

2401:20 were not necessarily familiar with the details of the

25 process of whether -- you know, the process of review.

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203:23 Q. Now, in mid 2006, were you following

303:23 developments at YouTube?

403:23 A. I had taken interest in YouTube as a service

503:23 from a professional and personal perspective.

603:23 Q. By mid 2006, did you know that YouTube was

703:24 gaining traffic relative to Google Video's traffic?

803:24 MR. INGBER: Objection; lacks foundation, facts

903:24 not in evidence.

1003:24 BY MR. SHAFTEL:

1103:24 Q. If you recognize that.

1203:24 In mid 2006, did you know that YouTube was

1303:24 getting more viewers than Google Video was getting?

1403:24 A. I don't recall what the views were relatively,

1503:24 but I do recall YouTube was growing very quickly.

1603:24 Q. And did you view YouTube as a competitor to

1703:24 Google Video?

1803:24 A. YouTube had some characteristics that were

1903:25 similar to Google Video.

2003:25 Google Video was different in many respects,

2103:25 particularly with regard to our work on a

2203:25 partner-specific program in a download store.

2303:25 MR. SHAFTEL: Let me just have the last line

2403:25 read back, please.

25 (Record read.)

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203:25 (Document marked Exhibit No. 12

303:25 for identification.)

403:25 BY MR. SHAFTEL:

503:25 Q. Let me hand you Exhibit 12, Mr. Walker, which

603:25 starts at 562962.

703:25 A. Thank you.

803:25 Q. It's a series of e-mails in which your name

903:25 appears as an author and recipient.

1003:25 A. Uh-huh. Okay.

1103:27 Q. Do you recall these e-mails?

1203:27 A. I recall this conversation with Hunter.

1303:27 Q. On March 4th, 2006, you're e-mailing with

1403:27 Mr. Walk, and this would be on the second page, and you

1503:27 say, BTW, By the way, shouldn't you be in bed?

1603:27 A. Yes.

1703:27 Q. And then he writes back to you, or e-mails back

1803:27 to you, I'll sleep when we're the best video property on

1903:27 the internet.

2003:27 A. Yes.

2103:27 Q. To which you then respond, Well, what would you

2203:27 say is the best property now?

2303:27 A. Uh-huh.

2403:28 Q. And then in his response -- this is now on the

25 first page -- March 3 of '06, Mr. Walk says, Right now

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203:28 we're chasing a variety of different startups and

303:28 established companies.

403:28 Did you understand YouTube was one of the

503:28 entities that he's referencing by saying different

603:28 startups and established companies?

703:28 A. I don't know what he was referring to

803:28 specifically, but YouTube was one of the startups in

903:28 that space at the time.

1003:28 Q. Because you then e-mail him back, and you're

1103:28 referring -- in your e-mail back, you refer to YouTube.

1203:28 A. Uh-huh.

1303:28 Q. And among other things you write that

1403:28 traffic/uploads on the unprofitable YouTube, paren,

1503:28 which is doing little to stem its traffic growth on the

1603:29 back of pirated content -- and then in the e-mail there

1703:29 is an equal sign -- unsustainable and irresponsible.

1803:29 Do you see that?

1903:29 A. Yes.

2003:29 Q. Now, when you wrote, in referring to YouTube's

2103:29 traffic growth, quote, "on the back of pirated content,"

2203:29 what are you referring there to?

2303:29 A. I think I, like many people, made an assumption

2403:29 that some of the content on there was unauthorized on

25 YouTube. In fact, I had no way of knowing, as I was not

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203:29 the rights holder, whether or not the content on YouTube

303:29 was unauthorized.

403:29 My feeling at the time, and this is still quite

503:29 early in my employment, was I thought it was actually

603:30 quite inconceivable to me that content providers would

703:30 do anything other than submit content in a way that was

803:30 very clear and in a way where they felt completely

903:30 comfortable with the branding.

1003:30 And my assumption was, which turned out to be

1103:30 incorrect, was that content that was on the site that

1203:30 was not clearly provided by the rights holder was

1303:30 unauthorized. I think many people had that assumption.

1403:30 I learned over time that, in fact, many rights

1503:30 holders were utilizing these services, and particularly

1603:30 YouTube, as I learned when I became responsible for the

1703:30 partnerships there, in a way that I would describe as

1803:30 sort of stealth marketing; that a lot of content on

1903:30 there was provided in a knowing manner, but in a way

2003:30 that looked as if it was provided by the user. So in

2103:30 fact, I had no way of knowing at this particular time, I

2203:31 had no clue as to whether this content was actually

2303:31 authorized or unauthorized, but my feeling at the time

2403:31 was that it might have been pirated material.

25 Q. And by "pirated content," you mean unauthorized

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203:31 copyrighted content; is that right?

303:31 MR. INGBER: Objection; asked and answered.

403:31 THE WITNESS: My feeling was that this might

503:31 have been -- might have been unauthorized content.

603:31 And I use the term -- I use the term here in

703:31 this e-mail loosely, but that would be my understanding

803:31 of -- as I said, my assumption was that it was not

903:31 authorized.

1003:31 THE VIDEOGRAPHER: I need to change the tape.

1103:31 This marks the end of videotape No. 2, we're

1203:31 off the record. The time is 3:31.

1303:39 (Recess taken.)

1403:39 THE VIDEOGRAPHER: On the record. This marks

1503:40 the beginning of videotape No. 3 in the deposition of

1603:40 Patrick Walker on July 22nd, 2008. The time is

1703:40 3:40 p.m.

1803:40 Please continue.

1903:40 BY MR. SHAFTEL:

2003:40 Q. Mr. Walker, we were looking at Exhibit 12 in

2103:40 your reference to the traffic growth on the back of

2203:40 pirated content unsustainable and irresponsible. You

2303:40 said that was based on an assumption on your part at

2403:40 that point.

25 What was the assumption based on?

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203:49 for identification.)

303:49 BY MR. SHAFTEL:

403:49 Q. Exhibit 13 is 482516, and I focus your

503:49 attention on Mr. Anderson's e-mail to you of May 10,

603:49 2006, and then your response to him back.

703:49 Mr. Anderson here writes that YouTube is -- he

803:49 writes, 80 percent illegal pirated content; do you see

903:50 that?

1003:50 A. Yes.

1103:50 Let me read the e-mail, please.

1203:50 Okay.

1303:50 Q. Let me start with your e-mail to Mr. Anderson,

1403:50 May 10th.

1503:50 Referring to YouTube, you say that, I think

1603:50 it's time to seriously think of buying them.

1703:50 A. Uh-huh.

1803:50 Q. Do you know whether at this point in time there

1903:50 had been any discussions beyond you and Mr. Anderson

2003:50 about the acquisition of YouTube by Google?

2103:50 A. I don't know.

2203:51 Q. Mr. Anderson writes back, I can't believe

2303:51 you're recommending buying YouTube. Besides the

2403:51 ridiculous valuation they think they're entitled to,

25 they're 80 percent illegal pirated content.

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203:51 Do you see that?

303:51 A. Yes.

403:51 Q. Do you recall ever disputing the 80 percent

503:51 number with him?

603:51 A. I don't know.

703:51 Q. You're certainly --

803:51 MR. INGBER: Wait a second. Are you done with

903:51 your answer?

1003:51 THE WITNESS: No, I'm not finished with my

1103:51 answer.

1203:51 MR. INGBER: Let him finish his answer, please.

1303:51 THE WITNESS: I don't recall disputing it. I

1403:51 know that Ethan's rather innocent assertion was based on

1503:51 an article that was published quoting an executive from

1603:51 I believe it was Fox, who somehow generated this number,

1703:51 completely unfounded as far as I know, had no basis in

1803:51 fact. Ethan, from my understanding, was simply quoting

1903:52 from an article that was published on the internet in a

2003:52 quote from an executive from Fox.

2103:52 BY MR. SHAFTEL:

2203:52 Q. Now, he doesn't have that citation in this

2303:52 e-mail. What's your basis for believing that is his

2403:52 reference point?

25 A. I remember that that number was bandied about

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203:52 after this article came about.

303:52 People tend to, even those involved in this

403:52 business, believe what's on the internet sometimes.

503:52 I just remember that article coming out and

603:52 thinking, okay, well, I wonder how he came up with that?

703:52 And also, you know, he is -- that executive did

803:52 represent a major rights holder, so it was not

903:52 necessarily a number that could be believed, in my

1003:52 opinion.

1103:52 Q. But you don't dispute it in the e-mail you

1203:52 write back to him?

1303:52 A. No.

1403:52 Q. And do you know if the 80 percent number is

1503:52 wrong?

1603:52 MR. INGBER: Objection.

1703:52 THE WITNESS: I don't know -- I have no way of

1803:53 knowing the accuracy of that number.

1903:53 BY MR. SHAFTEL:

2003:53 Q. So it may be correct; you don't know one way or

2103:53 the other?

2203:53 MR. INGBER: Objection; asked and answered.

2303:53 THE WITNESS: I don't know. All I know is that

2403:53 it was based on a quote from an executive in the media

25 business in an article that was published on a website.

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203:53 So I had no opinion as to whether or not it was correct

303:53 or incorrect. It was simply a quote from an individual,

403:53 and if you read the article, I believe there was no

503:53 basis in actual fact in him stating that.

603:53 BY MR. SHAFTEL:

703:53 Q. But you're not familiar with any other data on

803:53 it?

903:53 A. No.

1003:53 Q. Do you know where he got his data, the Fox

1103:53 executive?

1203:53 A. No idea.

1303:53 Q. Now, in your e-mail back, you don't dispute the

1403:53 80 percent number, but you do say some other things.

1503:53 MR. INGBER: Objection.

1603:53 BY MR. SHAFTEL:

1703:53 Q. You refer to the daily obsession with comparing

1803:54 ourselves to them.

1903:54 The "them" is YouTube?

2003:54 A. Yes.

2103:54 Q. What is the daily obsession that you're

2203:54 referring to?

2303:54 A. YouTube was becoming a phenomenon, and it was

2403:54 often discussed. It was a topic of discussion, look at

25 that feature they've just launched; look at that thing

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206:03 we would have an opportunity to potentially participate,

306:03 our position had been consistently one where we would

406:04 work with whoever the end rights holder was, and then

506:04 once those rights were established, we would work with

606:04 those parties to assist them in their exploitation of

706:04 their rights in those geographies. And in fact, as soon

806:04 as those rights were distributed, we were contacted by a

906:04 number of licensees who were very interested in working

1006:04 with us on the revenue generation via YouTube.

1106:04 Q. And have you entered into agreements with any

1206:04 of those licensees?

1306:04 A. We have not. The Premier League disallowed

1406:04 them from working with us.

1506:04 Q. Who told you that the Premier League disallowed

1606:04 them from working with you?

1706:04 A. They did.

1806:04 Q. And who is the "they"?

1906:04 A. Two organizations in particular, one Virgin

2006:04 Media, who acquired those rights for the UK, who were

2106:04 actually quite frustrated that they weren't allowed to

2206:05 distribute that content in their geography via YouTube,

2306:05 in addition to their own video platform. Another one

2406:05 was Sport EV, S-p-o-r-t, big E, big V.

25 William Head is the CEO of that company, and he

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206:05 also was making efforts to find a way to work with us.

306:05 He, I believe, acquired the rights in Asia and other

406:05 markets, and he wanted to use YouTube as a means of

506:05 distributing in those markets according to the rights

606:05 that he was given, which actually allowed him to work

706:05 with third parties to distribute those rights. He told

806:05 me he was informed that they wouldn't be allowed to work

906:05 with us.

1006:05 Q. Did you speak with anyone at Premier League

1106:05 concerning these two sublicensees?

1206:05 A. I didn't.

1306:05 The lawsuit had been filed, and I was not in a

1406:06 position to have direct conversation with the Premier

1506:06 League, although I did reach out to them and to Phil to

1606:06 say, I'd like to still discuss the digital rights for

1706:06 archive. And also I do contact Phil on a regular -- you

1806:06 know, a number of times -- every time we had an upgrade

1906:06 in the technology, such as video ID, but I did not speak

2006:06 specifically to him about those objections.

2106:06 Q. Do you have any understanding either from the

2206:06 sublicensees or anyone at Premier League about the

2306:06 reason or basis for their objections with respect to

2406:06 those sublicensees entering YouTube agreements?

25 A. I don't know exactly what their reasons were.

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206:06 The Premier League made efforts to speak to a

306:06 number of parties trying to encourage them to join in

406:07 the class action suit. This was reported to me by a

506:07 large number of rights holders, sports leagues, football

606:07 clubs, some of whom -- actually all of whom made their

706:07 own decisions and many of whom are actually working with

806:07 us today.

906:07 Q. Working with you, meaning those entities have

1006:07 agreements with YouTube?

1106:07 A. Some of them have formal contractual

1206:07 relationships with YouTube.

1306:07 Q. So for the period of time that those entities

1406:07 have formal contracts -- or strike that.

1506:07 Are you familiar with any entity that you've

1606:07 dealt with or otherwise are you familiar with any

1706:07 entity, other than Viacom, which has its own litigation

1806:07 against YouTube, who have said they want to exclude

1906:08 themselves from any participation in the case?

2006:08 MR. INGBER: Object to form.

2106:08 THE WITNESS: I've had a number of

2206:08 conversations with rights holders who said that they

2306:08 didn't feel it was necessary to participate.

2406:08 BY MR. SHAFTEL:

25 Q. Who said that?

DAVID FELDMAN WORLDWIDE, INC. 805 Third Avenue, New York, New York 10022 (212)705-8585

ae177175-74c3-4b94-b31f-060f4be407eb Schapiro Exhibit 204 1 UNITEDSTATESDISTRICTCOURT

SOUTHERNDISTRICTOFNEWYORK

------X

VIACOMINTERNATIONAL,INC.,COMEDY PARTNERS,COUNTRYMUSIC TELEVISION,INC.,PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENTTELEVISION,LLC,

Plaintiffs, vs. No.07-CV-2103

YOUTUBE,INC.,YOUTUBE,LLC, and GOOGLE, INC.,

Defendants.

------X THEFOOTBALLASSOCIATIONPREMIER LEAGUE LIMITED, BOURNE CO., et al., on behalf of themselves and all others similarly situated,

Plaintiffs, vs. No.07-CV-3582

YOUTUBE,INC.,YOUTUBE,LLC, and GOOGLE, INC.,

Defendants.

------X HIGHLYCONFIDENTIAL VIDEOTAPEDDEPOSITIONOFPETERCHANE PALOALTO,CALIFORNIA WEDNESDAY, DECEMBER 2, 2009 JOB NO. 18308 PETER CHANE - HIGHLY CONFIDENTIAL

2 1 PALO ALTO, CA PETER CHANE DECEMBER 2, 2009

2 DECEMBER 2, 2009

3 10:00 A.M.

4

5 HIGHLYCONFIDENTIALVIDEOTAPEDDEPOSITIONOFPETER

6 CHANE, at WILSON SONSINI GOODRICH & ROSATI, 601

7 California Avenue, Palo Alto, California, pursuant to

8 notice, before me, KATHERINE E. LAUSTER, CLR, CRR, RPR,

9 CSR License No. 1894.

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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

3 1 PALO ALTO, CA PETER CHANE DECEMBER 2, 2009

2 APPEARANCES:

3 FORTHEPLAINTIFFS,VIACOMINTERNATIONAL,INC.:

4 SHEARMAN&STERLING,LLP By: STUART J. BASKIN, Esq. 5 599 Lexington Avenue New York, New York 10022-6069 6 T.212.848.4974 F.646.848.4974 7 [email protected]

8 and

9 By: SEAN T. STRAUSS, Esq. 525 Market Street 10 San Francisco, California 94105-2723 T.415.616.1100 11 F.415.616.1407 [email protected] 12

13 FOR THE DEFENDANTS YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE,INC.: 14 MAYERBROWN,LLP 15 By: MATTHEW D. INGBER, Esq. 1675 Broadway 16 New York, New York 10019-5820 T.212.506.2373 17 F.212.849.5973 [email protected] 18

19 FORDEFENDANTGOOGLE,INC.:

20 GOOGLE,INC. By: ADAM L. BAREA, Esq. 21 1600 Amphitheatre Parkway Mountain View, California 94043 22 T.650.214.4879 F.650.618.1806 23 [email protected]

24

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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

4 1 PALO ALTO, CA PETER CHANE DECEMBER 2, 2009

2 A P P E A R A N C E S: (Continued)

3 FORTHELEADPLAINTIFFSANDPROSPECTIVECLASS: 4 GIRARDGIBBS,LLP 5 By: DENA CONNOLLY SHARP, Esq. 601 California Street, 14th Floor 6 San Francisco, California 94108-2819 T.415.981.4800 7 F.415.981.4846 [email protected] 8

9

10 Also Present: KEN REESER, Videographer

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9 1 PALO ALTO, CA PETER CHANE DECEMBER 2, 2009

2 10:08:58 THE WITNESS: I was involved. I don't

3 10:09:01 know exactly when YouTube started.

4 10:09:04 BYMR.BASKIN:

5 10:09:05 Q. In 2005 and 2006, were you employed by

6 10:09:09 Google Video?

7 10:09:10 A. I was employed by Google, Incorporated, at

8 10:09:14 that time.

9 10:09:15 Q. And were you assigned to the business unit

10 10:09:17 known as Google Video?

11 10:09:19 A. I worked on a project known as Google

12 10:09:21 Video.

13 10:09:22 Q. And were you senior management of that

14 10:09:25 project?

15 10:09:25 MR. INGBER: Object to form. Vague.

16 10:09:28 THE WITNESS: No, I was not.

17 10:09:29 BYMR.BASKIN:

18 10:09:29 Q. Who was the senior manager?

19 10:09:31 A. Susan Wojcicki was the senior manager of

20 10:09:35 Google Video.

21 10:09:36 Q. And how many people worked on this project

22 10:09:40 known as Google Video in and around 2005 and 2006?

23 10:09:44 A. I don't recall.

24 10:09:45 Q. And was your direct report Miss Wojcicki?

25 10:09:50 A. No, she was not.

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2 10:09:51 Q. Was she -- strike that.

3 10:09:52 Were you her direct report?

4 10:09:54 A. Yes, I was.

5 10:09:55 Q. So, basically, you were the second person

6 10:09:57 responsible for this project known as Google Video?

7 10:10:01 MR. INGBER: Objection. Form.

8 10:10:02 THE WITNESS: I was a member of the Google

9 10:10:04 Video team.

10 10:10:05 BYMR.BASKIN:

11 10:10:05 Q. And do you recall officially what your

12 10:10:07 title was?

13 10:10:08 A. My title was business product manager.

14 10:10:10 Q. And how many people did you manage as

15 10:10:14 business product manager?

16 10:10:17 A. Zero.

17 10:10:18 Q. So it was just you? You were the sole

18 10:10:20 business project manager?

19 10:10:21 A. Yes.

20 10:10:22 Q. And what was business project manager?

21 10:10:25 What did you do?

22 10:10:26 A. The term is business product manager, and

23 10:10:28 I was responsible for the vision of the product and

24 10:10:34 responsible to work with engineering to build the

25 10:10:41 product.

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2 10:10:42 Q. And in and around 2005, 2006, would it be

3 10:10:47 fair to say that Google Video was a direct

4 10:10:49 competitor of YouTube?

5 10:10:51 MR. INGBER: Objection to form.

6 10:10:58 THE WITNESS: We did not view Google Video

7 10:11:00 as a direct competitor to YouTube.

8 10:11:02 BYMR.BASKIN:

9 10:11:03 Q. Were you both in the business of creating

10 10:11:06 a website on which parties could upload videos and

11 10:11:11 others could watch it?

12 10:11:13 MR. INGBER: Objection. Lacks foundation.

13 10:11:14 THE WITNESS: I'm sorry. Can you repeat

14 10:11:16 that question?

15 10:11:17 BYMR.BASKIN:

16 10:11:18 Q. Were both Google Video and YouTube in the

17 10:11:21 business of creating a website on which third

18 10:11:29 parties could upload videos and others could view

19 10:11:33 the videos?

20 10:11:34 MR. INGBER: Same objection.

21 10:11:35 THE WITNESS: Well, that was a -- a

22 10:11:37 feature of Google Video that was one of many

23 10:11:39 features of the Google Video product.

24 10:11:42 I can't speak for YouTube, because I was

25 10:11:44 unfamiliar with the YouTube product at that time.

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2 10:29:48 term.

3 10:29:49 BYMR.BASKIN:

4 10:29:49 Q. Well, was it the policy of Google Video,

5 10:29:58 as approved by the senior executives of Google, that

6 10:30:07 there should be zero tolerance for copyrighted

7 10:30:10 violations on the site in 2005 and early 2006?

8 10:30:14 MR. INGBER: Objection. Lacks foundation,

9 10:30:16 assumes facts not in evidence, it's vague.

10 10:30:19 THE WITNESS: I'm sorry. Can you restate

11 10:30:22 that question?

12 10:30:23 BYMR.BASKIN:

13 10:30:24 Q. Sure. Was it the policy of Google Video,

14 10:30:26 as approved by the senior executives of Google, that

15 10:30:30 there should be zero tolerance for copyright

16 10:30:34 violations on the Google Video site in 2005 and

17 10:30:39 early 2006?

18 10:30:40 MR. INGBER: The same objections.

19 10:30:42 THE WITNESS: It was our objective at

20 10:30:44 Google Video to have authorized content on our site.

21 10:30:50 We used the phrase "zero tolerance policy" as a

22 10:30:55 shorthand to describe that our goal was to have only

23 10:31:01 authorized content on our site.

24 10:31:04 BYMR.BASKIN:

25 10:31:04 Q. Was -- more than goal?

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2 10:31:06 A.I--

3 10:31:06 Q. -- would it be fair to say, sir, that you

4 10:31:08 didn't tolerate copyrighted content on your site --

5 10:31:11 MR. INGBER: Objection --

6 10:31:12 BYMR.BASKIN:

7 10:31:12 Q. -- in and around 2005?

8 10:31:14 MR. INGBER: Objection. Counsel is

9 10:31:15 testifying.

10 10:31:16 THE WITNESS: It was very, very difficult,

11 10:31:18 if not impossible, for us to detect copyrighted

12 10:31:24 content on our site. It was our objective to keep

13 10:31:28 unauthorized content off our site.

14 10:31:32 BYMR.BASKIN:

15 10:31:32 Q. Now, did you discuss this zero tolerance

16 10:31:37 policy with Mr. Schmidt, Eric Schmidt?

17 10:31:47 A. I don't recall.

18 10:31:48 Q. Do you recall having meetings with the

19 10:31:51 chief executive at Google where the zero tolerance

20 10:31:54 policy for Google Video was discussed?

21 10:31:56 A. I don't recall.

22 10:31:57 Q. Do you recall having discussions of the

23 10:32:00 zero tolerance policy with Larry Page?

24 10:32:03 A. I don't recall specific instances of that.

25 10:32:08 Q. And how about Mr. Brin?

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2 10:32:10 A. I don't recall.

3 10:32:11 Q. How about other senior executives who made

4 10:32:14 up the operating committee or executive management

5 10:32:19 committee of Google?

6 10:32:22 MR. INGBER: Objection. Form.

7 10:32:23 THE WITNESS: I don't recall who were the

8 10:32:24 members of those committees.

9 10:32:27 BYMR.BASKIN:

10 10:32:28 Q. Who do you recall discussing the zero

11 10:32:32 tolerance policy that Google Video had in the end of

12 10:32:37 2005 and 2006 for copyrighted works on its site?

13 10:32:41 A. I recall discussing it with members of the

14 10:32:44 Google Video team.

15 10:32:46 Q. Now, was there a particular member of the

16 10:32:51 Google Video team -- strike that.

17 10:32:53 MR. BASKIN: Let's just mark, if we can --

18 10:32:54 well, we will mark as Chane 1 for today (handing) --

19 10:33:21 MR. INGBER: Thank you.

20 10:33:21 MR. BASKIN: I don't know if we have

21 10:33:21 enough -- could you guys share? We'll do the best

22 10:33:22 we can.

23 10:33:30 (Deposition Exhibit Number 1 was marked

24 10:33:30 for identification.)

25 10:33:30 //

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2 11:03:47 But I was making the distinction between

3 11:03:50 the policy of Google Video, which we referred to in

4 11:03:53 shorthand as "zero tolerance policy," meaning we

5 11:03:55 were doing what we could to prevent unauthorized

6 11:03:58 content from appearing on the site, to my

7 11:04:00 understanding of YouTube's policy, which was

8 11:04:03 different.

9 11:04:04 BYMR.BASKIN:

10 11:04:05 Q. Well, Mr. Chane, can the jury conclude

11 11:04:15 that, if you learned -- if you report to

12 11:04:19 Mr. Rosenberg that:

13 11:04:26 "google video doesn't have this one

14 11:04:28 because we have a zero tolerance policy

15 11:04:31 for copyrighted content. Youtube is at an

16 11:04:36 advantage because they aren't the target

17 11:04:38 that we are with issues like this. They

18 11:04:42 are aware of this (I spoke with them on

19 11:04:45 friday) and they plan on exploiting this

20 11:04:48 in order to get more and more traffic,"

21 11:04:52 if you reported that to Jonathan Rosenberg, sir, in

22 11:04:57 and around January 15th, 2006, can the jury conclude

23 11:05:01 that that was an honest and truthful statement you

24 11:05:04 made to Mr. Rosenberg?

25 11:05:06 MR. INGBER: Objection. Asked and

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2 11:05:06 answered.

3 11:05:11 THE WITNESS: Mr. Rosenberg, as an

4 11:05:13 executive of Google, was sharing a video of YouTube

5 11:05:18 to other people inside of Google. I was -- appear

6 11:05:23 to be one of those people.

7 11:05:25 I was explaining to him why this piece of

8 11:05:29 content -- I don't know what this piece of content

9 11:05:32 is, because I'm unable to click on this link, nor is

10 11:05:36 the information about the video in this e-mail.

11 11:05:38 I was explaining to him why Google's own

12 11:05:42 product didn't have that piece of content. And the

13 11:05:45 reason we didn't have that piece of content is

14 11:05:47 because, again, with the goal of building a

15 11:05:51 comprehensive video service with all the world's

16 11:05:53 video, we had a policy we referred to as "zero

17 11:05:59 tolerance" where we didn't want potentially

18 11:06:01 unauthorized content on our site.

19 11:06:03 I was contrasting, with my -- best of my

20 11:06:07 understanding, YouTube's policy, and also stating

21 11:06:10 that YouTube, as a smaller company, may have had

22 11:06:14 some advantages vis-a-vis Google as a bigger

23 11:06:18 company.

24 11:06:21 I believe YouTube -- I -- I didn't have

25 11:06:26 any knowledge of YouTube. I wasn't a YouTube

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2 11:06:28 employee, nor did the -- nor did Mr. Hurley or

3 11:06:37 Mr. Maxcy say that they plan on, "exploiting this in

4 11:06:41 order to get more and more traffic."

5 11:06:44 Mr. Maxcy and Mr. Hurley, in that meeting,

6 11:06:48 did communicate with us that certain videos got

7 11:06:53 very, very popular, and generated a lot of traffic

8 11:06:57 on their site.

9 11:06:58 BYMR.BASKIN:

10 11:06:59 Q. Let me try one third time, and then I'll

11 11:07:02 move on, sir.

12 11:07:03 If you reported something to Jonathan

13 11:07:06 Rosenberg, in and around January 15th, 2006,

14 11:07:14 including a conversation that you had with YouTube

15 11:07:17 on Friday, can the ladies and gentlemen of the jury

16 11:07:21 conclude that you accurately and honestly reported

17 11:07:27 to him?

18 11:07:29 MR. INGBER: Objection. Asked and

19 11:07:30 answered twice.

20 11:07:33 THE WITNESS: As I previously stated, I

21 11:07:36 was reporting to Jonathan Rosenberg that -- this is

22 11:07:45 a video that he was sharing on the site, on

23 11:07:49 YouTube's site, with other people inside of Google.

24 11:07:52 And I was explaining to him why we didn't have that

25 11:07:56 product. And I believe my -- my previous answer

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2 11:07:58 goes into exactly why.

3 11:08:00 I was also stating to him my belief why I

4 11:08:05 thought YouTube was possibly at an advantage to have

5 11:08:09 more popular videos because, my belief, that their

6 11:08:13 policy was different from Google Video's.

7 11:08:16 BYMR.BASKIN:

8 11:08:17 Q. Now, it -- can you tell us, sir --

9 11:08:22 MR. INGBER: I see we're at about an hour,

10 11:08:23 and can we take a break now?

11 11:08:25 MR. BASKIN: No, let's go a little bit.

12 11:08:26 After -- don't -- this document, and then we'll take

13 11:08:29 a break.

14 11:08:29 MR. INGBER: Okay. Fine.

15 11:08:30 BYMR.BASKIN:

16 11:08:39 Q. Apart from Mr. Hurley and Mr. Maxcy, is

17 11:08:45 there any other human being at Google Video --

18 11:08:49 strike that.

19 11:08:50 Apart from Mr. Hurley and Mr. Maxcy, is

20 11:08:53 there any other person at YouTube with whom you had

21 11:08:57 a conversation that could have been the source of

22 11:09:02 that information that you communicated to

23 11:09:05 Mr. Rosenberg in and around January 15th, 2006?

24 11:09:11 MR. INGBER: Objection to form.

25 11:09:19 THE WITNESS: I didn't have any other

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2 11:31:37 the entirety of that paragraph.

3 11:31:39 BYMR.BASKIN:

4 11:31:39 Q. And then above it you said -- say:

5 11:31:43 "they don't want to clean themselves up.

6 11:31:47 They say they take things down with dmca

7 11:31:51 requests. But they dont want to work with

8 11:31:53 premium partners so they don't feel this

9 11:31:57 strong need to be more vigilant."

10 11:31:59 Do you see that, sir?

11 11:32:01 A. I see those words.

12 11:32:02 Q. And do you recall writing those words in

13 11:32:04 and around January 26, 2006, approximately 13 days

14 11:32:08 after you met with Mr. Hurley and Mr. Maxcy?

15 11:32:10 A. I don't recall, but this document

16 11:32:15 partially refreshes my memory.

17 11:32:17 Q. You're saying it does refresh your memory?

18 11:32:20 A. To the extent I'm reading this particular

19 11:32:22 document, it does.

20 11:32:24 Q. Now, do you recall Mr. Hurley and

21 11:32:26 Mr. Maxcy saying to you that "they don't want to

22 11:32:28 clean themselves up"?

23 11:32:29 A. No, that wasn't said at the meeting. I

24 11:32:31 think in this e-mail "they don't want to clean

25 11:32:34 themselves up" is a reference -- Mr. Walk makes the

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2 11:32:37 point that YouTube is able to have R-rated content

3 11:32:41 on their site.

4 11:32:43 Again, just to set some context, Mr. Walk,

5 11:32:46 Mr. Doig, and myself were -- didn't know anything

6 11:32:50 about YouTube's policies. We were users of the

7 11:32:53 site, and we looked at it, and that's how we learned

8 11:32:57 about YouTube. We made guesses and we were

9 11:33:00 speculating.

10 11:33:02 Mr. Walk was making the point that YouTube

11 11:33:06 has R-rated content on the site. Now, Google Video

12 11:33:12 had a policy where we didn't allow R-rated content

13 11:33:16 on our site. We tried, by pre-screening, to

14 11:33:20 eliminate that.

15 11:33:22 So, you know, I -- I was simply making the

16 11:33:26 statement here that, you know, "they don't want to

17 11:33:29 clean themselves up." It didn't appear that they

18 11:33:31 wanted to -- that they shared this sentiment that we

19 11:33:35 had, which was R-rated content was inappropriate for

20 11:33:38 the website.

21 11:33:39 Q. So just so the ladies and gentlemen of the

22 11:33:40 jury will understand your testimony under oath,

23 11:33:44 Mr. Chane, what you're saying to them is that when

24 11:33:47 you wrote:

25 11:33:49 "they don't want to clean themselves up.

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2 11:33:51 They say they take things down with dmca

3 11:33:56 requests. But they don't want to work

4 11:33:58 with premium partners so they don't feel

5 11:34:01 the strong need to be vigilant,"

6 11:34:05 it's your testimony to the jury that you were

7 11:34:07 referencing R-rated content and not copyright

8 11:34:10 comment -- content by that --

9 11:34:12 MR. INGBER: Objection. Asked and

10 11:34:12 answered.

11 11:34:13 BYMR.BASKIN:

12 11:34:13 Q. -- by that comment, sir?

13 11:34:15 A. I think I'm making a few points here. One

14 11:34:17 of which, I'm making the point that YouTube has

15 11:34:20 R-rated and other similar types of content, and it

16 11:34:25 was our understanding from using the site that that

17 11:34:29 content didn't come down. It stayed up. So we

18 11:34:32 assumed that YouTube didn't have a policy against

19 11:34:35 that content.

20 11:34:36 I also say, in terms of -- YouTube

21 11:34:40 appeared, from our perspective, to take things down

22 11:34:44 with DMCA requests. I wasn't aware of YouTube's

23 11:34:48 processes, and I believe I found this out because it

24 11:34:52 was somewhere on the YouTube site, stating that if

25 11:34:55 you have a problem you send a DMCA request.

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2 11:54:26 for the corporate development group at Google.

3 11:54:29 Q. Now, do you recall, sir, any discussion

4 11:54:32 with any of these individuals regarding the topic

5 11:54:38 set forth in your e-mail to them?

6 11:54:42 A. I'm sorry. I don't understand your

7 11:54:44 question.

8 11:54:45 Q. Do you remember discussing your e-mail --

9 11:54:46 you obviously -- you have an e-mail here where you

10 11:54:49 don't --

11 11:54:50 A. Don't -- I don't remember any discussion.

12 11:54:53 Q. No talk at all with them?

13 11:54:54 A. Not that I recall.

14 11:54:56 MR. INGBER: Objection. Asked and

15 11:54:56 answered.

16 11:54:57 BYMR.BASKIN:

17 11:54:57 Q. At any point in time?

18 11:55:01 MR. INGBER: Objection. Asked and

19 11:55:01 answered.

20 11:55:01 BYMR.BASKIN:

21 11:55:02 Q. Is that correct? At no point in time do

22 11:55:04 you remember discussing these concepts with them?

23 11:55:14 A. I don't recall any discussions.

24 11:55:17 Q. Now, let me ask you, based on your

25 11:55:30 communications with Mr. Maxcy and Mr. Hurley on

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2 11:55:36 January 13th, 2006 -- strike that.

3 11:55:40 Based on your meeting with them, and your

4 11:55:44 review of business operations at Google Video and

5 11:55:49 YouTube, did there come a time when you yourself

6 11:55:54 came to the conclusion that Google Video should

7 11:55:58 change its zero tolerance policy and start to permit

8 11:56:04 uploads onto the site without prior review?

9 11:56:10 A. So our zero tolerance policy, again, was

10 11:56:13 our -- our goal. And we had a number of -- of

11 11:56:16 methods to achieve that, one of which was screening

12 11:56:21 videos before they went live.

13 11:56:24 That process, I found, over time, to be

14 11:56:30 poor. And it was poor because first it didn't

15 11:56:35 scale. And what I mean by that is that people had

16 11:56:40 to manually look at thumbnails of each video. And

17 11:56:44 that took time.

18 11:56:46 So if a video -- if 5,000 videos went

19 11:56:51 live, we had to have people look at every one. And

20 11:56:54 let's say the next day 10,000 videos went live.

21 11:56:57 People had to look at every one, and we had the same

22 11:57:01 number of people. So it didn't scale. You know,

23 11:57:04 imagine if you got 100,000 videos the next day. It

24 11:57:07 -- it would -- it just wouldn't work.

25 11:57:10 Second, it wasn't accurate. We were

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2 11:57:13 unable to successfully identify all types of

3 11:57:19 unauthorized content. Let me give you one example

4 11:57:24 of that I recall.

5 11:57:25 I recall a video that was -- we removed

6 11:57:28 from our site via our screening, and the video was

7 11:57:31 of a Little League team, of children. And it was a

8 11:57:36 Little League game held at Dodger Stadium. And the

9 11:57:43 children were in Dodgers' uniforms.

10 11:57:48 We removed it because, from our

11 11:57:50 perspective, we thought it was a piece of -- of

12 11:57:52 content from a commercial content provider that was

13 11:57:56 not authorized to be on our site, but it clearly

14 11:58:00 wasn't.

15 11:58:01 So we were poor judges of this. We were

16 11:58:06 making mistakes. The result of that was a poor user

17 11:58:11 experience. And what I mean by that is that the

18 11:58:14 user of the kids' baseball video would get a message

19 11:58:20 back to us that says that their video was rejected.

20 11:58:23 And they would say, "What's going on? This video

21 11:58:28 was mine. It was of my kids. I took it. Why are

22 11:58:32 you rejecting it?"

23 11:58:35 At the same time, some commercial sources

24 11:58:40 of video were uploading video to Google Video. An

25 11:58:44 example of that is there is an advertising agency

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2 11:58:48 who decided to put their television commercials

3 11:58:51 online to see if they could get more people to look

4 11:58:55 at them. We looked at that video and said, well,

5 11:58:59 this looks like television, because it was, and took

6 11:59:02 it offline, thinking it was unauthorized, but, in

7 11:59:05 fact, it was authorized.

8 11:59:07 So our process was -- was error prone. It

9 11:59:12 didn't scale. It resulted in a poor user

10 11:59:14 experience. And over time, as we learned this, I

11 11:59:18 came to the belief that we needed to keep our zero

12 11:59:22 tolerance policy, because our goal at Google Video

13 11:59:25 didn't change. We still wanted to work with -- with

14 11:59:28 commercial providers of content. We still had that

15 11:59:34 same belief that -- that that was key to our

16 11:59:38 strategy, but the way we were going about that

17 11:59:42 wasn't working.

18 11:59:44 So then we started to think about, well,

19 11:59:46 how can we design new processes to fix the problems

20 11:59:50 that I mentioned, in order to produce a more

21 11:59:54 scalable service, a more accurate service, and a

22 11:59:57 better user experience for everyone involved.

23 12:00:03 Q. When did you reach the conclusion or the

24 12:00:05 opinion that Google Video should change its policy

25 12:00:12 and stop pre-screening uploads?

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2 12:00:16 MR. INGBER: Objection to the extent it

3 12:00:18 mischaracterizes the witness's testimony.

4 12:00:22 THE WITNESS: I don't recall an exact day

5 12:00:23 or -- or period. It was a -- an understanding that

6 12:00:27 I gained over time, based on experience with Google

7 12:00:29 Video. Some of that experience came from anecdotes,

8 12:00:32 like the ones I just mentioned, where users would

9 12:00:36 write to us and say, "Hey, this is not helping us,"

10 12:00:39 and then content providers would also say, "Hey, my

11 12:00:43 content's not going live."

12 12:00:46 We would also -- you know, so it was -- it

13 12:00:51 was something that, over time, we just realized

14 12:00:55 wasn't working. As our service got more popular and

15 12:00:58 we got more videos, we knew it was -- and we thought

16 12:01:02 about going worldwide with our service, we knew it

17 12:01:05 was just a position and a process that we couldn't

18 12:01:08 hold on for much longer, and still operate a -- a

19 12:01:11 successful commercial venture.

20 12:01:13 BYMR.BASKIN:

21 12:01:13 Q. Now, did you reach the -- again, I -- I

22 12:01:16 asked you a when question. Did you reach the

23 12:01:20 conclusion -- the opinion that Google Video should

24 12:01:25 stop screening uploads before or after your meeting

25 12:01:33 on January 13th, with Mr. Hurley and Mr. Maxcy?

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2 12:01:38 A. I don't recall. I -- I -- you know, this

3 12:01:41 was not an epiphany moment. This was a -- something

4 12:01:46 that you come to the belief, over time, via a number

5 12:01:49 of factors that feed into that.

6 12:01:52 I mean, I told you in the -- in the -- in

7 12:01:54 the previous -- my previous comment, the -- the

8 12:01:57 factors that I was receiving. I was receiving input

9 12:01:59 from our users.

10 12:02:00 I was receiving e-mails like the one from

11 12:02:04 Mr. Page's relative that said, "Hey, my video isn't

12 12:02:10 live," that you showed me.

13 12:02:12 I was receiving input from other people at

14 12:02:16 Google who were trying to use our service and says,

15 12:02:19 "Hey, it's not working for me."

16 12:02:21 I was receiving input from our advertisers

17 12:02:25 who were trying to use the service to their

18 12:02:28 commercial benefit and were unable to.

19 12:02:31 So, over time, I came to that belief,

20 12:02:33 based on operational experience running Google

21 12:02:37 Video.

22 12:02:37 Q. So the answer -- the ladies and gentlemen

23 12:02:39 of the jury to understand your testimony, it sounds

24 12:02:43 like you are incapable or -- or don't have a

25 12:02:46 recollection as to whether you came to the

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2 12:02:48 conclusion that the screening policies should be

3 12:02:52 changed before or after your meeting with

4 12:02:54 Mr. Hurley?

5 12:02:55 MR. INGBER: Objection. Mischaracterizes

6 12:02:57 the witness's testimony, asked and answered.

7 12:03:01 THE WITNESS: There are some beliefs that

8 12:03:04 gel over time and this was one of them. I -- I

9 12:03:07 don't know the -- the -- the date that this belief

10 12:03:11 became cemented in my mind.

11 12:03:12 BYMR.BASKIN:

12 12:03:13 Q. Now, was it a factor, in your opinion,

13 12:03:20 that Google Video should change its policy and cease

14 12:03:25 pre-screening; that Google Video was at a

15 12:03:32 competitive disadvantage, as against YouTube in

16 12:03:38 generating a user base, with its pre-existing zero

17 12:03:47 tolerance policy?

18 12:03:48 MR. INGBER: Objection to form.

19 12:03:50 THE WITNESS: Google Video was at a

20 12:03:51 disadvantage to YouTube for a number of reasons.

21 12:03:54 Google Video, relative to YouTube, had a -- had a

22 12:04:02 smaller number of features, and which resulted in a

23 12:04:09 overall worse user experience than YouTube.

24 12:04:13 An example of that is YouTube's experience

25 12:04:15 to find a video was -- was easier and better.

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2 12:04:18 YouTube's experience to search for an individual was

3 12:04:22 easier and better. YouTube's experience to upload a

4 12:04:25 video was -- was better. YouTube changed their site

5 12:04:29 more frequently than Google Video did. YouTube --

6 12:04:33 playing a video happened more quickly on -- on

7 12:04:36 YouTube.

8 12:04:37 So there were a lot of product reasons why

9 12:04:40 YouTube was deficient to Google Video. One of those

10 12:04:45 reasons was that on YouTube a video went live faster

11 12:04:49 than Google Video. And it was our -- my belief,

12 12:04:54 based on feedback from our users, as well as

13 12:04:58 knowledge of the Internet, that faster is better,

14 12:05:02 and therefore YouTube had a better overall

15 12:05:04 experience than Google Video.

16 12:05:09 BYMR.BASKIN:

17 12:05:09 Q. And was it -- were you of the view,

18 12:05:22 Mr. Chane, in mid 2006, that in order to compete

19 12:05:28 with YouTube, Google Video had to relax its

20 12:05:33 copyright compliance standards?

21 12:05:35 A. My view was that Google Video needed a

22 12:05:38 wide variety of changes in order to be competitive

23 12:05:41 in the marketplace. Those changes involved changes

24 12:05:46 to our user interface, changes to our search

25 12:05:50 results, changes to the overall product, and I also

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2 12:05:53 believed that we need -- needed to make videos go

3 12:05:58 live faster than what we were doing.

4 12:06:00 But I still held the belief that our --

5 12:06:05 our mission of providing a comprehensive service was

6 12:06:09 right, and that our goal of keeping unauthorized

7 12:06:14 content off our site was right.

8 12:06:18 Q. So, if I understand your answer, sir --

9 12:06:21 let me read -- let me recite the question a second

10 12:06:24 time, and tell me if your answer is no.

11 12:06:29 Was it your view that Google Video --

12 12:06:38 strike that.

13 12:06:39 Was it your view, Mr. Chane, in mid 2006,

14 12:06:42 that in order to compete with YouTube, Google Video

15 12:06:46 had to relax its copyright compliance standards?

16 12:06:51 Can you answer that for the jury "yes" or

17 12:06:53 "no," sir?

18 12:06:54 MR. INGBER: Hold it. First of all, I

19 12:06:56 object to the instruction about what the answer

20 12:06:58 should be. Give the answer that you're comfortable

21 12:07:00 giving.

22 12:07:01 And secondly, the question has been asked

23 12:07:03 and answered already.

24 12:07:06 THE WITNESS: My view at the time was that

25 12:07:09 Google Video was a deficient product in the

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2 12:07:11 marketplace for a number of reasons. The product

3 12:07:17 was deficient in some pretty core reasons. It

4 12:07:22 didn't play video especially well. You couldn't

5 12:07:25 search for videos especially well. You couldn't

6 12:07:28 browse and find videos especially well. Videos were

7 12:07:32 not presented on the site in as good a quality as

8 12:07:34 they -- they should have been. The technology we

9 12:07:37 used around video was -- was worse than the

10 12:07:40 technology that -- that YouTube was using, and other

11 12:07:44 video sites.

12 12:07:46 Our videos were taking too long to go

13 12:07:49 live. All of those things were the reasons that I

14 12:07:52 believe why You- -- why Google Video was not winning

15 12:07:57 in the marketplace.

16 12:07:58 BYMR.BASKIN:

17 12:07:58 Q. Let me ask it one more time, and then

18 12:08:00 we'll break.

19 12:08:01 Mr. Chane, for the ladies and gentlemen of

20 12:08:03 the jury, can you tell them, was it your view in mid

21 12:08:06 2006 that in order to compete with YouTube, Google

22 12:08:12 Video had to relax its copyright compliance

23 12:08:15 standards?

24 12:08:16 MR. INGBER: Objection to form. Asked and

25 12:08:17 answered.

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2 12:08:22 THE WITNESS: In order to compete in the

3 12:08:25 marketplace, Google Video had a number of product

4 12:08:27 deficiencies. Those included our poor search for

5 12:08:31 videos, the inability to quickly browse for videos,

6 12:08:34 the technology we used to play videos was not state

7 12:08:38 of the art, it took too long to make a video live

8 12:08:42 after it was uploaded. And the combination of all

9 12:08:44 those things was the reason why Google Video was

10 12:08:47 failing in the marketplace.

11 12:08:48 BYMR.BASKIN:

12 12:08:48 Q. And was one such factor as well, in your

13 12:08:51 mind, that Google Video was being too aggressive in

14 12:08:56 its zero tolerance copyright policy?

15 12:09:00 MR. INGBER: Objection. Vague and

16 12:09:02 ambiguous.

17 12:09:03 THE WITNESS: As I stated, our policy --

18 12:09:05 we wanted to keep unauthorized content off our site.

19 12:09:09 And our policy of screening content before it went

20 12:09:12 on, which was one such way we were trying to achieve

21 12:09:15 that goal, was failing.

22 12:09:17 It was failing because it didn't scale, it

23 12:09:20 was error prone, it was inaccurate, it was

24 12:09:23 inefficient, it resulted in a poor user experience

25 12:09:27 for everyone involved.

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2 12:09:28 BYMR.BASKIN:

3 12:09:29 Q. And therefore should the jury's take-away

4 12:09:34 from that be that you believed that a factor for

5 12:09:44 Google Video's failures in it's -- in it -- in

6 12:09:49 generating a user base vis-a-vis YouTube, one such

7 12:09:53 factor was Google Video's zero tolerance policy on

8 12:09:59 copyrights was not effective?

9 12:10:01 MR. INGBER: Objection. Misstates --

10 12:10:03 BYMR.BASKIN:

11 12:10:04 Q. And should --

12 12:10:04 MR. INGBER: The witness's testimony.

13 12:10:05 BYMR.BASKIN:

14 12:10:05 Q. -- and should be changed?

15 12:10:07 A. Can you restate your question?

16 12:10:09 Q. Sure. Should the jury's take-away be that

17 12:10:32 you believed that a factor for Google Video in its

18 12:10:40 failure to generate a user base as quickly as

19 12:10:45 YouTube -- that one such factor was that Google

20 12:10:48 Video's zero tolerance policy on copyrights was not

21 12:10:53 effective and should be changed?

22 12:10:55 MR. INGBER: Misstates the witness's

23 12:10:57 testimony. Objection.

24 12:10:59 THE WITNESS: As I said before, there's a

25 12:11:00 variety of factors why Google Video was not a

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2 12:11:04 successful product. We did a -- we had a poor user

3 12:11:08 interface. We had lack of -- we didn't use state of

4 12:11:12 the art video technology to provide a high quality

5 12:11:16 play-back experience. Our search was poor.

6 12:11:19 And it took too long for videos to go live

7 12:11:24 on our site. And on the Internet, which is a medium

8 12:11:28 that really thrives on instantaneous information,

9 12:11:32 that provided a sub par user experience, and

10 12:11:37 therefore caused our market position to not be what

11 12:11:40 I had hoped it would be.

12 12:11:41 All those factors together, caused Google

13 12:11:45 Video not to be as successful as we had hoped.

14 12:11:50 THE VIDEOGRAPHER: I do need to interrupt.

15 12:11:52 MR. BASKIN: Okay. Let's -- good. Let's

16 12:11:53 just change tapes, keep going.

17 12:11:56 THE VIDEOGRAPHER: This is the end of

18 12:11:57 videotape number 1 of Volume 1 of the deposition of

19 12:12:01 Peter Chane on December 2nd, 2009. The time is

20 12:12:05 12:11 p.m. We're off the record.

21 12:12:10 (Short break.)

22 12:23:10 THE VIDEOGRAPHER: This is the beginning

23 12:23:11 of videotape number 2 of Volume 1 of the deposition

24 12:23:15 of Peter Chane on December 2nd, 2009. The time is

25 12:23:22 12:22 p.m. We are back on the record.

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2 12:23:26 BYMR.BASKIN:

3 12:23:27 Q. Now, Mr. Chane, in internal discussions

4 12:23:31 at -- at Google, were you expressing the opinion

5 12:23:38 that, to beat YouTube, Google Video had to call it

6 12:23:44 quits on its copyright compliance standards?

7 12:23:52 A. You know, I don't recall those exact

8 12:23:55 words.

9 12:23:55 I -- I can say that we were having an

10 12:23:59 active internal debate -- Google -- on how to make

11 12:24:06 Google Video more competitive in the marketplace

12 12:24:09 vis-a-vis YouTube and other video sites, and one

13 12:24:15 topic we may have discussed is our topic -- is -- is

14 12:24:18 our approach vis-a-vis how we're going to work with

15 12:24:23 content providers.

16 12:24:26 Q. Well --

17 12:24:26 A. I assume that's what you meant by

18 12:24:30 "copyright" --

19 12:24:31 MR. INGBER: Don't make any -- don't make

20 12:24:32 any assumptions about --

21 12:24:33 MR. BASKIN: Well, let me ask --

22 12:24:33 MR. INGBER: -- what he asks --

23 12:24:33 MR. BASKIN: Let me -- let me ask it again

24 12:24:33 and --

25 12:24:33 MR. INGBER: Just let him ask the

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2 12:24:33 question.

3 12:24:34 BYMR.BASKIN:

4 12:24:34 Q. I had a very specific question. Did you,

5 12:24:38 in internal discussions at YouTube -- at Google, did

6 12:24:43 you yourself propose that, in order to beat YouTube,

7 12:24:48 Google Video should call it quits on its copyright

8 12:24:51 compliance standards?

9 12:24:55 MR. INGBER: Objection to form.

10 12:24:57 THE WITNESS: I don't recall those exact

11 12:24:59 words. However, I was involved in an active debate

12 12:25:05 inside of Google on how we can make Google Video

13 12:25:08 more competitive in the marketplace.

14 12:25:10 And one of those areas in that debate was

15 12:25:12 around what is our position relative to commercial

16 12:25:22 content providers? How do we work with them in a

17 12:25:25 productive way, such that their content they desire

18 12:25:32 gets on our service. And that was a debate that we

19 12:25:35 were having internally at Google that I was a part

20 12:25:38 of.

21 12:25:38 BYMR.BASKIN:

22 12:25:38 Q. Well, that wasn't my question though. My

23 12:25:40 question was: Did you express the view -- listen to

24 12:25:43 my question, and if the answer is "yes," or "no," or

25 12:25:46 if you want to -- if you want to explain it, that's

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2 12:25:49 fine, but listen to my question.

3 12:25:51 In internal debates at Google in mid 2006,

4 12:25:56 were you expressing the position that, in order to

5 12:26:02 beat YouTube, Google Video had to call it quits on

6 12:26:07 its copyright compliance standards?

7 12:26:10 MR. INGBER: Objection to form. Asked and

8 12:26:10 answered.

9 12:26:11 THE WITNESS: I don't recall a specific

10 12:26:13 document or a specific conversation where those

11 12:26:17 words were used. You seem to be reading from one

12 12:26:21 where maybe those words were used.

13 12:26:23 I was involved in -- in a general

14 12:26:25 discussion around what is the position of Google

15 12:26:27 Video; what approach should we take vis-a-vis

16 12:26:29 commercial content.

17 12:26:31 BYMR.BASKIN:

18 12:26:31 Q. And were you espousing the view that --

19 12:26:34 the approach that you think Google Video should take

20 12:26:37 in order to compete with YouTube was to call it

21 12:26:40 quits on copyright compliance standards?

22 12:26:43 MR. INGBER: He's answered that question

23 12:26:45 three times. Asked and answered.

24 12:26:53 THE WITNESS: (No audible response.)

25 12:26:53 //

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2 12:26:53 BYMR.BASKIN:

3 12:26:54 Q. I don't care about the exact words: Call

4 12:26:57 it quits, cease; stop its content -- use whatever

5 12:27:02 words you want.

6 12:27:03 But in the -- in the course of the

7 12:27:04 internal debate that you reference, were you of the

8 12:27:07 view that, in order to beat YouTube, Google Video

9 12:27:10 should stop, water down, quit -- whatever phrase you

10 12:27:14 want to use -- its copyright compliance standards?

11 12:27:17 MR. INGBER: Objection. Vague and

12 12:27:18 ambiguous, asked and answered.

13 12:27:19 THE WITNESS: In order to achieve the

14 12:27:20 mission we set out for Google Video, I came to the

15 12:27:23 belief, over time, that our approach around

16 12:27:27 screening content before it went live was not

17 12:27:33 resulting in a -- in a successful product or a good

18 12:27:38 user experience for anyone involved -- commercial

19 12:27:42 content providers and end users.

20 12:27:45 At no time did we think we should ignore

21 12:27:50 commercial content providers and not provide tools

22 12:27:53 or processes to control that content on our site.

23 12:27:59 BYMR.BASKIN:

24 12:28:00 Q. And by -- by the way, by "commercial

25 12:28:02 content providers," what you're talking about are

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2 12:28:06 movie studios, TV networks, and the like, similar to

3 12:28:10 Viacom; correct?

4 12:28:12 MR. INGBER: Objection to form.

5 12:28:13 THE WITNESS: In my language a commercial

6 12:28:15 content provider is a -- an entity that hopes to

7 12:28:18 make money by producing video content. There are

8 12:28:21 small ones -- one person, as well as large companies

9 12:28:24 that engage in that behavior.

10 12:28:27 BYMR.BASKIN:

11 12:28:27 Q. Now, you told us before, I think, but

12 12:28:30 maybe you didn't, so who is David Eun?

13 12:28:35 A. David Eun was responsible for content

14 12:28:37 partnerships at Google.

15 12:28:38 Q. And was he also a direct report up to

16 12:28:40 Susan Wojcicki?

17 12:28:42 A. I don't recall David's manager, who

18 12:28:45 David's manager was.

19 12:28:47 Q. Do you recall saying to David Eun that you

20 12:28:53 had the idea that to beat YouTube we had to call it

21 12:28:57 quits on our copyright compliance standards?

22 12:29:01 MR. INGBER: Objection to form. Asked and

23 12:29:02 answered.

24 12:29:04 THE WITNESS: I don't recall making that

25 12:29:05 exact statement to Mr. Eun. Mr. Eun was a part of

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2 12:29:08 the group of people who were engaged in the debate

3 12:29:11 on how to make Google Video more successful.

4 12:29:15 MR. BASKIN: So let me hand you what we'll

5 12:29:17 mark as Exhibit 9.

6 12:29:18 (Deposition Exhibit Number 9 was marked

7 12:29:18 for identification.)

8 12:29:35 BYMR.BASKIN:

9 12:29:35 Q. And you're welcome to look at the whole

10 12:29:37 document, but the only part of the document, since

11 12:29:40 it's not a document that you appear to be a party

12 12:29:43 to -- the only part of the document I wanted to call

13 12:29:47 to your attention is Mr. Eun wrote:

14 12:29:53 "I also ran into Peter and he had this

15 12:29:59 idea to 'beat YouTube' by calling quits on

16 12:30:02 our copyright compliance standards."

17 12:30:06 Did Mr. Eun communicate your idea

18 12:30:09 properly, Mr. Chane?

19 12:30:11 A. I think Mr. Eun is -- is hyper summarizing

20 12:30:15 an idea that my -- I was espousing inside of Google,

21 12:30:19 which was that our practice around screening content

22 12:30:27 was not working, and it wasn't working because it

23 12:30:32 was inaccurate, it was inefficient, it didn't scale.

24 12:30:37 It didn't provide a good user experience for any

25 12:30:40 party who wanted to get content on Google Video.

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2 12:30:44 So in this e-mail there's a number of

3 12:30:52 things suggested on how Google Video could be more

4 12:30:55 competitive in the marketplace. A lot of

5 12:30:57 functionality we could add to our site to make it

6 12:31:00 better at searching, and browsing, and -- and so

7 12:31:04 forth.

8 12:31:06 Another aspect to that is changing our

9 12:31:09 review policy to make it more scalable and more

10 12:31:12 efficient and more accurate.

11 12:31:14 At no time were we discussing the idea

12 12:31:17 of -- of actively soliciting unauthorized content on

13 12:31:24 our site, and at no time -- and I was -- I was

14 12:31:27 unable to operate outside of -- of our understanding

15 12:31:30 of the law in this area.

16 12:31:34 Q. So -- and then we'll move on -- are you

17 12:31:40 saying that Mr. Eun accurately or inaccurately -- by

18 12:31:43 the way, you are, I take it, are the "Peter"

19 12:31:46 referenced in that e-mail, are you not?

20 12:31:48 MR. INGBER: Objection. Calls for

21 12:31:49 speculation.

22 12:31:49 THE WITNESS: I assume so.

23 12:31:50 BYMR.BASKIN:

24 12:31:51 Q. And so the question is, for the jury: Did

25 12:31:57 Mr. Eun accurately or inaccurately characterize your

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2 12:32:02 idea to your superior that you wanted "to 'beat

3 12:32:05 YouTube' by calling quits on our copyright

4 12:32:09 compliance standards"?

5 12:32:10 MR. INGBER: Asked and answered.

6 12:32:10 Objection.

7 12:32:11 THE WITNESS: I think Mr. Eun took an idea

8 12:32:14 around how I -- my idea, which is around how I

9 12:32:20 thought we should change the way that we were

10 12:32:25 preventing unauthorized content from getting on our

11 12:32:28 site to a more scalable and more accurate model -- I

12 12:32:33 think he's hyper summarizing that by saying "calling

13 12:32:37 it quits on our copyright compliance standards."

14 12:32:40 Or perhaps Mr. Eun didn't understand the

15 12:32:44 idea. Mr. Eun was an executive with many

16 12:32:47 responsibilities. Maybe he wasn't active in the

17 12:32:49 discussion, such that he understood all the details

18 12:32:53 of it, so he was summarizing something that he

19 12:32:55 didn't quite understand.

20 12:32:56 BYMR.BASKIN:

21 12:32:56 Q. Now, during this debate I think you

22 12:32:59 refer- -- you called it internal debate, was a

23 12:33:02 participant in the internal debate on what to do

24 12:33:07 about copyright practices at Google Video Larry

25 12:33:09 Page?

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2 12:33:13 A. I wouldn't classify Larry Page as a

3 12:33:16 participant in the debate.

4 12:33:18 Q. Do you recall if Mr. Page was expressly

5 12:33:22 talking to you about how to beat YouTube -- on

6 12:33:31 March 2nd, 2006, precisely contemporaneous with

7 12:33:36 Mr. Eun's statement to Mr. -- to Ms. Wojcicki?

8 12:33:41 MR. INGBER: March or May, Stu?

9 12:33:43 MR. BASKIN: May, I'm sorry. May --

10 12:33:45 strike that.

11 12:33:46 BYMR.BASKIN:

12 12:33:46 Q. On precisely the date when Mr. Eun

13 12:33:49 characterized your idea, were you holding

14 12:33:57 discussions with Larry Page about what to do about

15 12:34:01 YouTube?

16 12:34:02 A. Today I don't recall a specific

17 12:34:03 discussion. However, Mr. Page obviously was an

18 12:34:07 active participant in a lot of things related to

19 12:34:11 Google, and when I -- it wasn't out of bounds for me

20 12:34:13 to talk to him about how to make Google Video

21 12:34:17 better.

22 12:34:17 One of those things was changing how we

23 12:34:19 were dealing with uploaded content to make the

24 12:34:25 process more scalable, and faster, and more

25 12:34:28 accurate.

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2 12:51:24 May of 2006 -- do you recall attending a GPS meeting

3 12:51:29 on Google Video where the CEO of Google, Eric

4 12:51:36 Schmidt was in attendance?

5 12:51:39 A. I recall attending GPS the meetings. I

6 12:51:43 don't recall the one you're referring to. And I

7 12:51:45 don't recall who was in attendance at -- at the

8 12:51:49 meetings.

9 12:51:50 Q. Do you recall attending a GPS meeting on

10 12:51:54 Google Video in mid 2006 where Mr. Brin, Sergey Brin

11 12:51:59 was in attendance?

12 12:52:01 A. I don't recall the meeting.

13 12:52:03 Q. Now, let me hand you what we will mark

14 12:52:06 as --

15 12:52:07 MR. INGBER: Stu, do you want to break for

16 12:52:09 lunch before you --

17 12:52:11 MR. BASKIN: Oh, sure. That's a good

18 12:52:12 idea. Let's -- because we're going to be a while on

19 12:52:15 this, why don't we break, do that.

20 12:52:17 THE VIDEOGRAPHER: The time is 12:51 p.m.

21 12:52:21 We're off the record.

22 12:52:23 (Lunch break.)

23

24

25

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

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2 AFTERNOONSESSION

3 DECEMBER 2, 2009; 1:27 P.M.

4

5 13:27:45 THE VIDEOGRAPHER: The time is 1:27 p.m.

6 13:27:49 We are back on the record.

7 13:27:50 EXAMINATIONRESUMED

8 13:27:52 MR. BASKIN: Okay. Let me hand you what

9 13:27:57 we will mark as Exhibit 13.

10 13:27:59 (Deposition Exhibit Number 13 was marked

11 13:27:59 for identification.)

12 13:28:38 BYMR.BASKIN:

13 13:28:39 Q. Sir, I may direct your attention to some

14 13:28:41 pages, but I may not. So let's just start with the

15 13:28:45 beginning.

16 13:28:45 Can you identify Exhibit 13 as an e-mail

17 13:28:49 and accompanying attachment that was c -- sent to

18 13:28:54 you by way of cc on or around May 4th, 2006?

19 13:29:04 A. Correct.

20 13:29:04 Q. Sorry?

21 13:29:05 A. Yes.

22 13:29:07 Q. Now, you'll see that the e-mail is

23 13:29:10 denominated "deck draft," and then the first full

24 13:29:15 page after that sets this forth as a presentation to

25 13:29:19 be made by you. And the page after that sets forth

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

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2 13:29:27 topics discussed at this GPS.

3 13:29:31 Do you -- does -- does this remind you

4 13:29:33 that you made a presentation at a GPS meeting

5 13:29:39 regarding Google Video in and around May of 2006?

6 13:29:44 A. Yes.

7 13:29:45 Q. Now, taking a look for a second at the

8 13:29:48 presentation, do you recall presenting the -- this

9 13:29:56 presentation at the GPS?

10 13:29:58 A. I don't recall presenting the

11 13:30:00 presentation.

12 13:30:01 Q. Do you recall, when you made a

13 13:30:04 presentation at the GPS, did you work off of slides

14 13:30:08 or -- or hand out a book such as this?

15 13:30:16 A. At a GPS meeting, it was out of practice

16 13:30:21 to hand out a printed copy. I don't recall whether

17 13:30:23 this meeting we worked from slides or -- or worked

18 13:30:28 from a verbal dialogue.

19 13:30:30 Q. But do you remember anything at all that

20 13:30:31 happened at a GPS meeting in May of 2006 regarding

21 13:30:36 the topic of Google Video?

22 13:30:37 A. I don't recall the -- the meeting.

23 13:30:39 Q. And you don't recall what you said, I take

24 13:30:42 it?

25 13:30:42 A. I don't recall what I said at the meeting.

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2 13:30:44 Q. You don't recall who was in attendance?

3 13:30:46 A. I don't recall the attendees.

4 13:30:48 Q. You don't recall whether Eric Schmidt was

5 13:30:51 in attendance?

6 13:30:51 A. I don't recall if Eric --

7 13:30:52 MR. INGBER: Asked and answered.

8 13:30:53 THE WITNESS: I don't recall whether Eric

9 13:30:55 Schmidt was in attendance.

10 13:30:57 BYMR.BASKIN:

11 13:30:57 Q. And you don't recall whether Sergey Brin

12 13:31:02 was in attendance?

13 13:31:03 MR. INGBER: Same objections.

14 13:31:03 THE WITNESS: I don't.

15 13:31:04 BYMR.BASKIN:

16 13:31:04 Q. And you don't recall which other members

17 13:31:04 of the senior management of Google were in

18 13:31:09 attendance at the meeting?

19 13:31:11 MR. INGBER: Objection. Asked and

20 13:31:11 answered, vague.

21 13:31:12 THE WITNESS: I don't recall.

22 13:31:13 BYMR.BASKIN:

23 13:31:14 Q. Do you recall, at the GPS, whether there

24 13:31:16 was an explicit discussion whether Google Video

25 13:31:19 should reduce its copyright compliance standards as

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2 13:31:25 a way of competing better with YouTube?

3 13:31:28 MR. INGBER: Objection. Form, vague and

4 13:31:28 ambiguous.

5 13:31:35 A. I don't recall. In this slide deck there

6 13:31:38 are talks -- there is discussion about our practices

7 13:31:41 to make sure unauthorized content is not on our

8 13:31:44 service.

9 13:31:45 BYMR.BASKIN:

10 13:31:45 Q. But -- and do you recall actually

11 13:31:47 discussing at the meeting, at the GPS, whether

12 13:31:51 Google Video should adopt a more liberal copyright

13 13:31:56 compliance standard in order to compete with

14 13:31:58 YouTube?

15 13:32:00 MR. INGBER: Objection. Form.

16 13:32:01 THE WITNESS: I don't recall that.

17 13:32:02 MR. BASKIN: Now, let me show you next

18 13:32:04 what we'll mark as Exhibit 14.

19 13:32:05 (Deposition Exhibit Number 14 was marked

20 13:32:05 for identification.)

21 13:32:44 BYMR.BASKIN:

22 13:32:44 Q. Can you, first of all, sir, identify

23 13:32:47 Exhibit 14 as consisting of an e-mail and

24 13:32:49 accompanying attachments sent to you by Ethan

25 13:32:54 Anderson on or about May 7th, 2006?

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2 13:32:58 A. That appears to be correct.

3 13:33:00 Q. And who was -- who was Ethan Anderson?

4 13:33:03 A. Ethan Anderson was a junior member -- a

5 13:33:05 junior product manager working on how to adapt

6 13:33:10 Google Video to be appropriate to international

7 13:33:13 markets.

8 13:33:14 Q. And reviewing Exhibit 14, the attachments,

9 13:33:20 do you remember whether these slides or attachments

10 13:33:26 prepared by Mr. Anderson were, in fact, presented to

11 13:33:29 the GPS in May of 2006?

12 13:33:32 A. I don't recall.

13 13:33:33 Q. Do you recall whether the slides prepared

14 13:33:35 by Mr. Anderson were, in fact, presented -- whether

15 13:33:41 topics in the slides presented by Mr. Anderson were

16 13:33:44 presented at the meeting in May of 2006?

17 13:33:47 A. I don't recall.

18 13:33:48 Q. Now, you'll notice, for example, if you go

19 13:33:52 to the page marked -- Bates stamped -5032, there is

20 13:34:02 a page entitled: "How is GV doing overall?"

21 13:34:08 A. I see that page.

22 13:34:09 Q. And it says:

23 13:34:10 "YouTube is getting more traffic and

24 13:34:13 engagement than Google Video today,"

25 13:34:15 providing statistics for March, and then below it

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2 13:35:57 was presented or discussed at the meeting. The

3 13:36:00 presentation reminds me of the issues that we were,

4 13:36:02 as a team, discussing in those times -- during that

5 13:36:05 period.

6 13:36:06 MR. BASKIN: Now, let's turn next to what

7 13:36:10 we'll mark as Exhibit -- 15?

8 13:36:15 THE REPORTER: Yes.

9 13:36:16 (Deposition Exhibit Number 15 was marked

10 13:36:16 for identification.)

11 13:37:06 BYMR.BASKIN:

12 13:37:07 Q. First of all, sir, can you identify

13 13:37:09 Exhibit 15 as an e-mail received by you in around

14 13:37:14 May 8th, 2006, with accompanying attachments?

15 13:37:18 A. Yes.

16 13:37:20 Q. Now, was Mr. Eun -- strike that.

17 13:37:35 This e-mail is -- is -- is subject matter:

18 13:37:37 "Updated slides for Dave." I take that as David

19 13:37:42 Eun?

20 13:37:43 MR. INGBER: Objection. Lacks foundation,

21 13:37:46 calls for speculation.

22 13:37:49 THE WITNESS: The e-mail is from David

23 13:37:51 Eun. He signs it "Dave." So I assume that Dav- --

24 13:37:55 MR. INGBER: Don't assume. Don't assume.

25 13:37:58 THE WITNESS: I'm reading the word "Dave."

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2 13:37:59 BYMR.BASKIN:

3 13:37:59 Q. Do you know any other David Eun who was in

4 13:38:03 senior management at Google Video who might

5 13:38:07 addressed the GPS?

6 13:38:09 A. No.

7 13:38:09 Q. Now, do you recall whether Mr. Eun

8 13:38:12 presented at the GPS meeting on behalf of the

9 13:38:14 content team at Google Video?

10 13:38:16 A. I don't recall.

11 13:38:17 Q. Again, you have no recollection of

12 13:38:18 Mr. Eun's presentation at the -- at the GPS meeting;

13 13:38:25 is that correct?

14 13:38:28 MR. INGBER: Objection. Assumes facts.

15 13:38:29 THE WITNESS: I don't recall.

16 13:38:31 MR. INGBER: Asked and answered.

17 13:38:32 MR. BASKIN: Let me show you one more

18 13:38:33 document, Exhibit 16.

19 13:38:35 (Deposition Exhibit Number 16 was marked

20 13:38:35 for identification.)

21 13:39:39 BYMR.BASKIN:

22 13:39:39 Q. Now, can you identify Exhibit 16 as an

23 13:39:42 e-mail and attachments received by you on May 11th,

24 13:39:47 2006?

25 13:39:48 A. Yes.

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2 13:39:50 Q. Now, you'll see that this says: "Final

3 13:39:53 Content team pages for Video GPS." And the line

4 13:40:00 says:

5 13:40:00 "Please find attached final version for

6 13:40:04 integration with product deck."

7 13:40:05 Is the product deck you, sir?

8 13:40:08 MR. INGBER: Objection.

9 13:40:08 MR. BASKIN: Strike it.

10 13:40:09 BYMR.BASKIN:

11 13:40:10 Q. Is a product deck your responsibility as

12 13:40:12 part of GPS?

13 13:40:14 A. The product deck, I believe, there refers

14 13:40:18 to the set of slides from the product managers. I

15 13:40:21 was one of the product managers working on the --

16 13:40:24 the project.

17 13:40:25 BYMR.BASKIN:

18 13:40:25 Q. And the content team pages, the content of

19 13:40:28 slides, was whose responsibility?

20 13:40:30 A. I don't recall exactly whose

21 13:40:33 responsibility. The content team was, you know, led

22 13:40:37 by Jennifer Feikin and David Eun.

23 13:40:42 Q. Now, do you have a recollection whether --

24 13:40:44 strike that.

25 13:40:45 If you turn to the page Bates stamped at

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

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2 13:40:47 -- Bates stamped -616, it makes reference to:

3 13:40:53 "Peter's how we're going to win page goes

4 13:40:57 here."

5 13:40:57 Do you see that?

6 13:40:58 A. I see that.

7 13:40:58 Q. Do you recall inserting a

8 13:41:01 how-we-are-going-to-win page to the GPS material?

9 13:41:04 A. I don't -- I don't recall that.

10 13:41:08 Q. And then a few pages later, in a page

11 13:41:10 ending -618, it says, "Peter's roadmap pages go

12 13:41:15 here."

13 13:41:16 Do you see that?

14 13:41:17 A. I do see that.

15 13:41:18 Q. Do you remember submitting pages regarding

16 13:41:19 your roadmap of how to proceed?

17 13:41:21 A. I don't recall. I think, you know, what

18 13:41:23 was happening here was -- you know, the -- the --

19 13:41:27 the -- the goal was to produce a set of slides that,

20 13:41:30 you know, communicated what we wanted to

21 13:41:32 communicate, and there's a number of groups who

22 13:41:34 wanted to contribute to that, the content team being

23 13:41:37 one of them.

24 13:41:38 I think in this case the -- the content

25 13:41:40 team is trying to sort of, you know, frame the

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2 13:41:43 discussion from their perspective. I think there

3 13:41:46 are other people who are contributing slides that

4 13:41:50 wanted to frame the discussion in a different

5 13:41:52 perspective, and this is -- you're getting a glimpse

6 13:41:55 of that process.

7 13:41:56 Q. And so let's turn to what the -- what the

8 13:41:57 content team said in their final content pages for

9 13:42:01 video GPS.

10 13:42:03 Directing your attention to the page Bates

11 13:42:06 stamped -620, do you see there's a slide called

12 13:42:14 "Premium Content Owners -- Lessons Learned"?

13 13:42:21 A. Yes, I'm looking at that.

14 13:42:23 Q. Could you look at the slide for a second,

15 13:42:25 sir?

16 13:42:41 Do you recall, sir, page Bates stamped

17 13:42:44 -620 being presented at the GPS in the spring of

18 13:42:47 2006?

19 13:42:48 A. I don't recall.

20 13:42:49 Q. Do you recall at the GPS, in front of

21 13:42:52 Mr. Schmidt and Mr. Brin and others, whether there

22 13:42:56 was a discussion that premium content owners:

23 13:43:00 ". . . acknowledge YouTube can provide

24 13:43:01 some level of promotion, but (mainly)

25 13:43:04 perceive YouTube as trafficking mostly

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2 13:43:07 illegal content -- 'it's a video

3 13:43:10 Grokster.'"

4 13:43:12 MR. INGBER: Objection. Assumes facts not

5 13:43:13 in evidence.

6 13:43:15 BYMR.BASKIN:

7 13:43:15 Q. Do you recall that being discussed in

8 13:43:17 front of the senior management of Google, sir?

9 13:43:19 A. I don't recall.

10 13:43:20 Q. Now, if you turn a few pages later to a

11 13:43:23 page Bates stamped -27, -627, there's a phrase:

12 13:43:33 "How do we win?"

13 13:43:34 Do you see that?

14 13:43:36 A. I see that.

15 13:43:36 Q. I mean, a document entitled "How do we

16 13:43:39 win."

17 13:43:40 Is that the how do -- how we're going to

18 13:43:42 win page that they referenced earlier that you were

19 13:43:45 going to provide, or is this something different?

20 13:43:48 MR. INGBER: Objection. Calls for

21 13:43:48 speculation, lacks foundation.

22 13:43:51 THE WITNESS: I don't know what this is.

23 13:43:52 It's a -- I -- I don't -- I don't know what this is.

24 13:43:55 BYMR.BASKIN:

25 13:43:56 Q. Do you recall this page being discussed at

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2 13:43:58 the GPS meeting?

3 13:44:00 A. I don't recall that.

4 13:44:01 Q. Do you recall, at the GPS meeting, the

5 13:44:03 content team at Google Video saying, either in

6 13:44:07 writing or orally, that:

7 13:44:09 "We should beat YouTube by improving

8 13:44:11 features and user experience, not being a

9 13:44:14 'rogue enabler' of content theft"?

10 13:44:17 A. I don't recall that.

11 13:44:19 Q. Now, if you turn to page Bates stamped

12 13:44:22 -33, you will recall that we saw a page very

13 13:44:46 similar, if not identical, to this in Exhibit 14,

14 13:44:49 a -- an e-mail sent from Ethan Anderson to you a few

15 13:44:54 days before. Do you recall that, sir?

16 13:44:56 A. Yes.

17 13:44:57 Q. Do you remember this page, page Bates

18 13:45:00 stamped -6633 of Chane Exhibit 6- -- 16, being

19 13:45:09 displayed at the GPS meeting in the spring of 2006?

20 13:45:15 A. I don't recall.

21 13:45:16 Q. Do you recall, at this GPS meeting in

22 13:45:20 June -- in -- in May of 2006, a discussion of the

23 13:45:26 line that:

24 13:45:28 "Qualitative research in four countries

25 13:45:30 reveals YouTube's content is all free and

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2 13:45:34 much of it is highly sought after pirated

3 13:45:37 clips"?

4 13:45:38 Do you recall a discussion of that, sir?

5 13:45:40 A. I don't recall.

6 13:45:40 Q. Do you recall a discussion of the research

7 13:45:43 that was undertaken in those four countries?

8 13:45:46 MR. INGBER: Object to form.

9 13:45:46 THE WITNESS: I don't recall.

10 13:45:47 BYMR.BASKIN:

11 13:45:47 Q. Do you recall who paid for that research,

12 13:45:50 Mr. Chane?

13 13:45:50 MR. INGBER: Objection to form, assumes

14 13:45:52 facts, lacks foundation.

15 13:45:53 THE WITNESS: I don't recall.

16 13:45:54 BYMR.BASKIN:

17 13:45:54 Q. And finally, let me draw your attention to

18 13:45:56 one other page. If you turn to page 37, there's a

19 13:46:08 page and it says -- that I'll call "Important points

20 13:46:12 to make somewhere in the deck."

21 13:46:15 Do you -- would you look at this page for

22 13:46:17 a second, sir?

23 13:46:18 A. Okay.

24 13:46:32 Q. Do you recall the page Bates stamped -6637

25 13:46:35 being discussed at the GPS meeting in the spring of

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2 13:46:38 2006?

3 13:46:39 A. I don't recall.

4 13:46:41 Q. Do you recall, in front of senior

5 13:46:43 management of Google, the point being made that

6 13:46:47 YouTube's business model is completely sustained by

7 13:46:50 pirated content, and they are at the mercy of

8 13:46:54 companies not responding with DMCA requests? Do you

9 13:46:57 recall that being discussed, sir?

10 13:47:00 MR. INGBER: Objection. Assumes facts.

11 13:47:02 THE WITNESS: I don't recall.

12 13:47:03 BYMR.BASKIN:

13 13:47:04 Q. I take it nothing in this document

14 13:47:07 refreshes your recollection of any of these points

15 13:47:10 being communicated to the senior management of

16 13:47:13 Google during the course of the GPS meeting in May

17 13:47:18 of 2006?

18 13:47:19 MR. INGBER: Objection to the extent it

19 13:47:20 assumes that senior management was at the meeting.

20 13:47:24 THE WITNESS: I don't recall the -- the --

21 13:47:26 exactly what was said at the meeting. I -- you

22 13:47:29 know, I recall that it was a review of Google Video

23 13:47:34 product, and where we were with it.

24 13:47:38 MR. BASKIN: Now, let me show you what

25 13:47:49 we'll next mark as Exhibit 17.

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2 13:47:52 (Deposition Exhibit Number 17 was marked

3 13:47:52 for identification.)

4 13:49:09 BYMR.BASKIN:

5 13:49:10 Q. Just to move this along, sir, I will

6 13:49:12 direct my comments just to the first page, although

7 13:49:16 you're welcome to look at the rest.

8 13:49:18 MR. INGBER: And look at the -- I'd ask

9 13:49:19 the witness to look at the whole document.

10 13:49:22 MR. BASKIN: Okay. As much as you want.

11 13:49:58 BYMR.BASKIN:

12 13:49:58 Q. Sir, Exhibit 17 consists of an e-mail

13 13:50:01 chain. If you turn to the first page, you will see

14 13:50:04 there is an e-mail that's -- begins original message

15 13:50:09 from David Eun to you, among other recipients. Do

16 13:50:13 you see that, sir?

17 13:50:14 A. Yeah, I see that.

18 13:50:16 Q. Can you identify this -- this e-mail as an

19 13:50:18 e-mail received by you from Mr. Eun on June 28th,

20 13:50:22 '07, after the GPS meeting?

21 13:50:28 A. I can identify it as an e-mail received --

22 13:50:30 or sent Wednesday, June 28th, '07.

23 13:50:34 Q. Now, paragraph 6 talks about some comment

24 13:50:36 made by a fellow named Sergey. Do you see that?

25 13:50:40 A. Yes, I do.

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2 13:50:41 Q. Do you know how many Sergey's there are --

3 13:50:44 strike that.

4 13:50:45 Would it be fair to conclude that "Sergey"

5 13:50:47 is Sergey Brin?

6 13:50:50 MR. INGBER: Objection to form.

7 13:50:51 THE WITNESS: I don't know. It's not my

8 13:50:53 e-mail.

9 13:50:53 BYMR.BASKIN:

10 13:50:54 Q. Do you know any other Sergey at the

11 13:50:57 company, other than Sergey Brin, who would attend a

12 13:51:02 GPS meeting?

13 13:51:02 A. You know, it's likely Sergey. It's not my

14 13:51:05 e-mail, so I don't know exactly who he's saying.

15 13:51:08 Q. Now, if you go above this e-mail you will

16 13:51:11 you'll see Mr. Eun is addressing:

17 13:51:14 . . . here are a few things to consider as

18 13:51:15 we continue to discuss our copyright

19 13:51:18 enforcement issue."

20 13:51:19 Do you see that?

21 13:51:20 A. I see that.

22 13:51:20 Q. And you see he says:

23 13:51:22 "Lastly," on paragraph 6, "as Sergey

24 13:51:24 pointed out at our last GPS, is changing a

25 13:51:27 policy to increase traffic knowing

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2 13:51:30 beforehand that we will profit from

3 13:51:32 illegal downloads how we want to conduct

4 13:51:36 our business? Is this Googley?"

5 13:51:40 Do you see that, sir?

6 13:51:43 A. I see it.

7 13:51:43 Q. Do you recall Mr. Brin, at the GPS meeting

8 13:51:48 in which you made a presentation in May of 2006,

9 13:51:50 expressing the view set forth in paragraph 6 of --

10 13:51:54 of -- of this e-mail?

11 13:51:58 A. I don't recall that.

12 13:52:00 Also, paragraph 6 is incorrect. The --

13 13:52:02 the service did not have downloads, and there was no

14 13:52:09 ways to make revenue from the service at the time.

15 13:52:12 So I don't -- also don't understand how we would

16 13:52:15 profit, but. . . .

17 13:52:16 Q. Do you recall Mr. Brin making the point

18 13:52:19 set forth in paragraph 6?

19 13:52:21 MR. INGBER: Asked and answered.

20 13:52:21 THE WITNESS: I don't recall.

21 13:52:22 BYMR.BASKIN:

22 13:52:22 Q. Do you recall any discussion involving

23 13:52:25 Mr. Brin at the GPS, on the topic of whether the

24 13:52:28 company should change its copyright enforcement

25 13:52:31 practices?

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2 13:52:31 A. I don't recall.

3 13:53:00 Q. Do you recall a debate at the GPS

4 13:53:03 surrounding the topic of whether the -- Google Video

5 13:53:06 ought to relax or alter its copyright enforcement

6 13:53:12 standards in order to compete with YouTube?

7 13:53:14 MR. INGBER: Objection to form.

8 13:53:15 THE WITNESS: I don't recall that specific

9 13:53:17 debate. At a -- the GPS we likely talked about all

10 13:53:22 the --

11 13:53:23 MR. INGBER: Don't -- don't guess about

12 13:53:23 what you talked about. If you have a specific

13 13:53:27 recollection, then testify about it, please.

14 13:53:29 THE WITNESS: Then I -- I -- I don't

15 13:53:30 recall discussing that.

16 13:53:33 BYMR.BASKIN:

17 13:54:15 Q. Have you ever seen the final deck of what

18 13:54:18 was -- what was presented at the GPS, including your

19 13:54:21 material?

20 13:54:22 MR. INGBER: Objection. Assumes facts.

21 13:54:23 THE WITNESS: I don't recall if I've seen

22 13:54:29 that.

23 13:54:29 BYMR.BASKIN:

24 13:54:29 Q. Do you -- the reference made in Exhibit 16

25 13:54:58 to pages that are going to be presented by you at

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2 13:55:01 the GPS, do you have any idea what happened to those

3 13:55:07 pages?

4 13:55:08 MR. INGBER: Objection. Mischaracterizes

5 13:55:09 the document. This says nothing about Mr. Chane

6 13:55:14 presenting anything.

7 13:55:14 BYMR.BASKIN:

8 13:55:15 Q. Do you know what happened to those pages,

9 13:55:18 Mr. Chane? For example, if you look at the page

10 13:55:21 Bates stamped -616:

11 13:55:24 "Peter's how we're going to win page goes

12 13:55:27 here,"

13 13:55:27 do you know what happened to that page?

14 13:55:29 A. I don't know where that page is. It's not

15 13:55:31 here.

16 13:55:32 Q. How about the page that says, two pages

17 13:55:35 later: "Peter's roadmap pages go here"? What

18 13:55:40 happened to those pages?

19 13:55:41 A. I don't know what happened to those pages.

20 13:55:43 They're not here.

21 13:55:44 Q. Do you keep -- when you keep your e-mails,

22 13:55:47 do you keep your presentations you made to the

23 13:55:50 senior management of the company? Do you retain

24 13:55:53 those pages?

25 13:55:53 A. I think, most likely, yeah, they're in my

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2 13:55:57 e-mail on my computer.

3 13:55:58 Q. And you don't recall ever seeing those

4 13:56:00 pages?

5 13:56:01 A. No, it -- it appears to me that the author

6 13:56:04 of this presentation wanted me to do some homework,

7 13:56:08 and I didn't supply it to them, and therefore

8 13:56:11 they're blank right now.

9 13:56:13 Q. Now -- and I take it, and then we'll move

10 13:56:39 on, that you have no memory of Mr. Schmidt at this

11 13:56:49 GPS meeting discussing the topics of piracy at

12 13:56:53 YouTube, its characterization as "a video Grokster,"

13 13:56:58 the suggestion that it is wholly dependent on

14 13:57:02 pirated content for its plan -- you don't recall any

15 13:57:05 of those discussions being made -- being held in the

16 13:57:05 presence of Mr. Schmidt?

17 13:57:10 MR. INGBER: Objection. Asked and

18 13:57:10 answered.

19 13:57:10 THE WITNESS: I don't recall who attended

20 13:57:14 the meeting.

21 13:57:15 BYMR.BASKIN:

22 13:57:15 Q. Now, by the way, this was the meeting for

23 13:57:18 your product group, was it not? Your product group

24 13:57:21 was responsible for this GPS, meaning it was -- it

25 13:57:24 was a Google Video GPS, was it not?

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2 13:57:28 MR. INGBER: Objection. Vague and

3 13:57:28 ambiguous which.

4 13:57:29 Go ahead.

5 13:57:31 THE WITNESS: We're looking at documents

6 13:57:35 that talk about a Google Video GPS, yes.

7 13:57:38 BYMR.BASKIN:

8 13:57:38 Q. And you basically have a blank mind as to

9 13:57:40 what happened there; is that correct?

10 13:57:43 MR. INGBER: Objection to form.

11 13:57:44 THE WITNESS: I don't recall exactly what

12 13:57:46 happened at that GPS.

13 13:57:48 BYMR.BASKIN:

14 13:57:48 Q. But do you recall anything that happened

15 13:57:50 at the GPS?

16 13:57:50 A. I recall that the -- I recall that there

17 13:57:59 was discussion around our product and how it was

18 13:58:08 deficient vis-a-vis YouTube in terms of the

19 13:58:11 functionality we were offering, and I recall there

20 13:58:15 was a discussion amongst engineering representatives

21 13:58:18 about why we can't do things faster.

22 13:58:22 Q. That's what you recall happening?

23 13:58:23 A. Yeah.

24 13:58:24 Q. And all the -- all the slides or pages of

25 13:58:27 Exhibit 16 that discusses copyright policies at

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2 13:58:32 YouTube, or the lack thereof, none of that do you

3 13:58:35 recall being discussed at G- -- you have a

4 13:58:37 recollection of none of that being discussed?

5 13:58:40 A. I don't rec- -- I don't have a

6 13:58:41 recollection of those topics coming up at a meeting.

7 13:58:43 Q. And you certainly have no recollection of

8 13:58:45 Mr. Brin saying that it would be inappropriate to

9 13:58:50 take advantage of copyright violations in order to

10 13:58:55 collect revenue; right, sir?

11 13:58:58 MR. INGBER: Asked and answered.

12 13:58:59 THE WITNESS: I don't have a recollection

13 13:59:00 who was at the meeting, but this was a meeting -- we

14 13:59:03 had, you know, a series of meetings where we

15 13:59:06 reviewed our products.

16 13:59:07 This was a review of Google Video, and I

17 13:59:11 specifically recall that the discussion was around

18 13:59:14 our functionality, and why -- you know, why we

19 13:59:21 didn't have a compelling set of functionality that

20 13:59:23 was resulting in market traction, and how we could

21 13:59:26 adjust that plan and move faster.

22 13:59:28 BYMR.BASKIN:

23 13:59:30 Q. And when you learned several months later

24 13:59:43 that Google was in the process of purchasing

25 13:59:46 YouTube, do you recall being in a discussion then in

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2 13:59:52 an internal -- any internal discussion at Google as

3 13:59:56 to the copyright compliance practices of YouTube?

4 14:00:00 MR. INGBER: Objection to form.

5 14:00:02 THE WITNESS: No. When the -- when any

6 14:00:04 discussion about acquiring YouTube came up, the

7 14:00:07 group, Google Video, was specifically excluded from

8 14:00:10 those discussions.

9 14:00:12 BYMR.BASKIN:

10 14:00:13 Q. So no one, for example, that you're aware

11 14:00:15 of, in -- in and around October 2006, discussed

12 14:00:22 whether Google was a -- purchasing a video Grokster?

13 14:00:27 MR. INGBER: Objection to form.

14 14:00:28 THE WITNESS: I don't recall that.

15 14:00:29 BYMR.BASKIN:

16 14:00:30 Q. And no one discussed, in your presence at

17 14:00:32 least, or with the Google Video people, whether

18 14:00:37 Google should go ahead and buy a company that is a

19 14:00:40 rogue enabler of content theft; is that correct?

20 14:00:44 MR. INGBER: Objection to form.

21 14:00:45 THE WITNESS: I don't recall that.

22 14:00:46 BYMR.BASKIN:

23 14:00:47 Q. And no one in your presence -- in

24 14:00:50 October 2006, when Google purchased YouTube, no one

25 14:00:54 in your presence discussed whether Google should go

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2 14:00:57 ahead and buy a company much of whose content is

3 14:01:01 highly sought-after pirated clips; right, sir?

4 14:01:06 MR. INGBER: Objection to form.

5 14:01:07 THE WITNESS: I don't recall that. I

6 14:01:08 think you're seeing, you know, a -- a lively debate

7 14:01:11 inside of Google about, you know, individuals'

8 14:01:14 perceptions of other websites. I -- I don't recall

9 14:01:18 what, you know, was presented.

10 14:01:21 BYMR.BASKIN:

11 14:01:21 Q. And finally, do you know, by the way,

12 14:01:25 whether your 80 percent slide concerning the News

13 14:01:29 America study that was done of -- of YouTube, when

14 14:01:37 Mr. Chernin reported they did a study and 80 percent

15 14:01:41 of YouTube was illegal content -- was that ever

16 14:01:44 discussed at GPS to your recollection?

17 14:01:47 MR. INGBER: Objection to the phrase "your

18 14:01:48 slide." Mischaracterizes testimony.

19 14:01:50 BYMR.BASKIN:

20 14:01:51 Q. Well, let me show you, sir, if you go to

21 14:01:59 Exhibit 13. You've previously discussed that. If

22 14:02:15 you turn to the page Bates stamped -6036.

23 14:02:25 A. I'm there.

24 14:02:26 MR. INGBER: Yeah, for one, you haven't

25 14:02:27 discussed it. You introduced it. There was no

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2 14:02:30 substantive discussion about it.

3 14:02:32 BYMR.BASKIN:

4 14:02:37 Q. The reference to the study by News Corp

5 14:02:43 discussed by Chernin that:

6 14:02:45 . . . we did a survey and more than

7 14:02:47 80 percent of video on (YouTube) is

8 14:02:49 copyrighted content,"

9 14:02:52 do you recall any discussion of that at the GPS

10 14:02:55 meeting?

11 14:02:56 A. I don't recall this slide or that

12 14:02:58 discussion. I think Mr. Chernin was wrong.

13 14:03:04 Q. You disagree with Mr. Chernin's

14 14:03:07 percentage?

15 14:03:08 A. I do.

16 14:03:09 Q. Based on what?

17 14:03:10 A. My own, as an outsider, you know, knowing

18 14:03:13 video and looking at YouTube. The -- the -- the

19 14:03:16 difficulty with, you know, figuring out copyrighted

20 14:03:21 content is, by looking at it, it's almost impossible

21 14:03:28 to figure out where it came from.

22 14:03:32 For instance, if I look at a piece of

23 14:03:34 content, I don't know who uploaded it. It could be

24 14:03:37 the owner of the content who uploaded it. It could

25 14:03:40 be an agent of the content, their advertising agency

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2 14:03:44 uploaded it. It could be someone working in an --

3 14:03:47 one division of a company where the other division

4 14:03:50 didn't know. It could be fair use. There -- it

5 14:03:52 could be a lot of things.

6 14:03:54 So I just don't think it's possible to do

7 14:03:56 a survey and arrive at this number. I think it's

8 14:04:01 just -- it -- it's too difficult to figure this

9 14:04:05 stuff out. And we know that because we tried

10 14:04:07 looking at it, and we made a lot of mistakes.

11 14:04:10 Q. And do you know what percentage -- strike

12 14:04:12 that.

13 14:04:13 Did Google ever perform a survey of its

14 14:04:16 own, as part of its due diligence effort, and come

15 14:04:19 up with a number?

16 14:04:20 MR. INGBER: Objection. Lacks foundation.

17 14:04:22 THE WITNESS: Not that I know of. I think

18 14:04:24 it's impossible to conduct such a survey, get an

19 14:04:28 accurate number.

20 14:04:29 BYMR.BASKIN:

21 14:04:29 Q. Well, who, by the way, is akaren of

22 14:04:37 Google? Do you know who that is?

23 14:04:39 A. I do know who that, yes. That's an alias

24 14:04:42 for Alana Karen.

25 14:04:45 Q. And who is that?

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2 14:04:46 A. Alana Karen worked in our advertising

3 14:04:49 group, and she was responsible for authoring

4 14:04:52 policies for advertising products and sometimes

5 14:04:55 other products as well.

6 14:04:56 MR. BASKIN: Let me show you --

7 14:05:15 MR. INGBER: When that's done, can we take

8 14:05:17 a quick bathroom break?

9 14:05:19 MR. BASKIN: Yeah.

10 14:05:20 (Deposition Exhibit Number 18 was marked

11 14:05:20 for identification.)

12 14:05:24 MR. BASKIN: Let me show you what we will

13 14:05:25 mark as -- Exhibit 17?

14 14:05:27 THE REPORTER: 18.

15 14:05:28 MR. BASKIN: 18.

16 14:05:49 BYMR.BASKIN:

17 14:05:50 Q. Can you identify, Mr. Chane, Exhibit 18 as

18 14:05:53 an e-mail chain that was cc'd to you?

19 14:05:56 A. Yes.

20 14:05:56 Q. Now, this is dated May 12th, 2006, and it

21 14:06:01 makes reference to Instant Live. What is Instant

22 14:06:04 Live?

23 14:06:05 A. Instant Live was an idea we had, where

24 14:06:09 videos uploaded to Google could go live instantly,

25 14:06:14 meaning you can play them -- someone could play them

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2 14:30:20 Q. By this point in time did Google Video

3 14:30:22 change its policy of doing pre-reviews of uploaded

4 14:30:27 videos?

5 14:30:28 MR. INGBER: Objection to the term

6 14:30:30 "policy."

7 14:30:30 THE WITNESS: I don't recall the exact

8 14:30:33 date when that change was made. I could -- I can

9 14:30:39 guess from --

10 14:30:41 MR. INGBER: Don't guess.

11 14:30:42 THE WITNESS: I don't know the exact date

12 14:30:44 when that change was made.

13 14:30:45 BYMR.BASKIN:

14 14:30:45 Q. Was the decision to cease pre-screening

15 14:30:48 videos for copyright violations done

16 14:30:51 contemporaneously with the decision to purchase

17 14:30:54 YouTube?

18 14:30:54 MR. INGBER: Objection to form. Lacks

19 14:30:56 foundation.

20 14:31:03 THE WITNESS: Those were independent

21 14:31:04 decisions.

22 14:31:05 BYMR.BASKIN:

23 14:31:06 Q. Well, it looks like this particular e-mail

24 14:31:08 referencing the change in policy occurred the same

25 14:31:13 day as the announcement -- or the day after the

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2 14:31:16 announcement that "Google is in Talks to Buy

3 14:31:19 YouTube." Were those events linked, Mr. Chane?

4 14:31:24 MR. INGBER: Objection to form.

5 14:31:25 THE WITNESS: No, they weren't linked.

6 14:31:27 BYMR.BASKIN:

7 14:31:28 Q. Who made the decision to stop

8 14:31:32 pre-screening of copyrighted violations at -- at --

9 14:31:37 at Google Video?

10 14:31:38 A. You know, I don't really -- I don't really

11 14:31:42 know who made the decision. I know the -- that it

12 14:31:45 was discussed amongst our team, and then it was

13 14:31:48 communicated to me that it was okay to put the

14 14:31:53 practice in place, to stop screening videos as --

15 14:31:57 just as long as we had the tools that we were

16 14:32:00 providing to content providers to help them manage

17 14:32:03 their content if their content -- if their content

18 14:32:06 was on our site in an unauthorized way.

19 14:32:10 Q. And who would -- who, in the ordinary

20 14:32:12 course, would have had the authority to order this

21 14:32:15 change in policy?

22 14:32:17 MR. INGBER: Calls for speculation.

23 14:32:23 THE WITNESS: I don't know. In the

24 14:32:25 ordinary course, decisions at Google tend to be

25 14:32:29 consensus -- it's a consensus driven culture. And,

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2 14:32:34 you know, most of the time those decisions are made

3 14:32:37 by a group of people, you know, jointly agreeing

4 14:32:40 that it was in the best interests of the product and

5 14:32:43 the end user.

6 14:32:44 BYMR.BASKIN:

7 14:32:44 Q. If -- strike that.

8 14:32:46 The decision to change Google's video

9 14:32:51 policy to no longer pre-screen for copyrighted

10 14:32:57 content, would that decision have to have been made

11 14:33:00 up at the executive committee or the operational

12 14:33:03 committee of Google?

13 14:33:04 MR. INGBER: Objection to form to the

14 14:33:05 extent it mischaracterizes the practice from the

15 14:33:07 Google side of the issue.

16 14:33:10 THE WITNESS: I don't know on that

17 14:33:11 decision. You know, decisions -- many decisions

18 14:33:14 were made by, you know, people like myself and

19 14:33:17 Mr. Doig, and -- and that was one that was, you

20 14:33:20 know, debated, such that we couldn't just make it.

21 14:33:24 BYMR.BASKIN:

22 14:33:25 Q. Well, you said, in fact, that that

23 14:33:26 decision was communicated to you. Someone else made

24 14:33:29 it; right, Mr. Chane?

25 14:33:31 MR. INGBER: Objection. Calls for

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2 14:33:32 speculation.

3 14:33:33 THE WITNESS: The decision to change --

4 14:33:34 the decision to agree with the recommendation was

5 14:33:37 communicated to me. That's right.

6 14:33:39 BYMR.BASKIN:

7 14:33:39 Q. To agree to which recommendation?

8 14:33:41 A. The recommendation to stop screening

9 14:33:43 content before it goes live and move to a policy --

10 14:33:46 a practice which we still consider a zero tolerance

11 14:33:51 policy -- the practice was to let videos go live

12 14:33:57 immediately, which we thought would benefit the end

13 14:33:59 user and the content provider better, and provide

14 14:34:02 tools to the content provider to allow them to

15 14:34:05 manage their content on Google Video and allow them

16 14:34:08 to make a decision whether their content should stay

17 14:34:12 on the service or be taken down from the service.

18 14:34:15 BYMR.BASKIN:

19 14:34:16 Q. Now, this change in practice or policy,

20 14:34:18 whatever you want to call it, would Mr. Rosenberg

21 14:34:20 have -- have had to have been involved in that

22 14:34:22 change?

23 14:34:23 MR. INGBER: Objection. Calls for

24 14:34:24 speculation.

25 14:34:25 THE WITNESS: Not necessarily, no.

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2 14:34:27 BYMR.BASKIN:

3 14:34:28 Q. Could Miss Wojcicki have made the change

4 14:34:35 by herself?

5 14:34:36 MR. INGBER: Same objection.

6 14:34:37 THE WITNESS: I don't know.

7 14:34:37 BYMR.BASKIN:

8 14:34:38 Q. Would Mr. Schmidt have had to have been

9 14:34:42 involved in that policy or practice?

10 14:34:45 MR. INGBER: Calls for speculation.

11 14:34:46 THE WITNESS: I don't know.

12 14:34:47 BYMR.BASKIN:

13 14:34:47 Q. In any event, you were advised that this

14 14:34:50 change occurred approximately when, sir?

15 14:34:52 A. I don't know the exact date. Yeah, I

16 14:35:03 don't know the exact date. It was, you know, fall

17 14:35:05 or winter, or something like that.

18 14:35:12 Q. Now, would it be correct to say that the

19 14:35:13 change in policy now involved at best limited

20 14:35:23 pre-screening for copyright violations before topics

21 14:35:26 go -- before videos went live?

22 14:35:31 MR. INGBER: Objection. Vague and

23 14:35:31 ambiguous.

24 14:35:32 THE WITNESS: Our change was really

25 14:35:32 designed to continue our zero tolerance policy. Our

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2 14:35:39 zero tolerance policy was we did not want

3 14:35:41 unauthorized content on our site.

4 14:35:44 MR. INGBER: Try to raise your voice a

5 14:35:46 bit.

6 14:35:47 THE WITNESS: I'm sorry.

7 14:35:48 We did not want unauthorized content on

8 14:35:51 our site. We -- when content went live on our site,

9 14:35:56 we frequently -- we screened it for pornography and

10 14:36:02 for violent content, because that was content that

11 14:36:04 we just didn't -- we decided was unacceptable on the

12 14:36:06 site.

13 14:36:07 We provided tools, one of which is called

14 14:36:10 the Auto DMCA tool where a content provider could

15 14:36:14 use Google Video and mark content they wanted to

16 14:36:17 take down, and it would generate a DMCA request, and

17 14:36:21 we would actually immediately take content down. We

18 14:36:25 wouldn't wait to process paperwork and so forth.

19 14:36:28 And that was the -- the nature of the

20 14:36:29 change.

21 14:36:29 BYMR.BASKIN:

22 14:36:30 Q. And did it involve any pre-screening at

23 14:36:32 all? Limited pre-screening? What did it involve,

24 14:36:37 Mr. Chane?

25 14:36:38 MR. INGBER: Objection. Form.

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2 14:36:39 THE WITNESS: I -- I -- when -- after we

3 14:36:40 made the change, our -- we decided to not pre-screen

4 14:36:49 content, and instead let content go live. We made

5 14:36:53 that change because that was in -- from our

6 14:36:55 perspective -- the best interests of the end user

7 14:36:57 who was uploading authorized content, as well as the

8 14:37:01 content provider, who was authorized -- who was

9 14:37:02 uploading authorized content.

10 14:37:04 Once content was live, we had a series --

11 14:37:09 we had a tool that we provided content providers,

12 14:37:11 and they could decide if they wanted to take their

13 14:37:15 content off the site or leave it on the site, and we

14 14:37:18 thought that the content provider was the best

15 14:37:21 decider of that.

16 14:37:22 And that change came because we realized,

17 14:37:23 in our course of business over -- from watching

18 14:37:28 Google Video, is that our process of pre-screening

19 14:37:31 was incredibly error prone, and we were unable to

20 14:37:34 identify content accurately.

21 14:37:35 And we were also unable to make a decision

22 14:37:37 on behalf of the content provider. In some cases

23 14:37:40 the content provider was simply okay with leaving

24 14:37:43 the content up.

25 14:37:44 //

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585 PETER CHANE - HIGHLY CONFIDENTIAL

161 1 PALO ALTO, CA PETER CHANE DECEMBER 2, 2009

2 14:37:45 BYMR.BASKIN:

3 14:37:46 Q. And did the tools or machinery deployed by

4 14:37:53 Google Video when you discontinued pre-screening

5 14:37:59 involve the use of any sort of filtering technology?

6 14:38:07 MR. INGBER: Objection. Vague.

7 14:38:11 THE WITNESS: Not that I can recall.

8 14:38:12 BYMR.BASKIN:

9 14:38:13 Q. Well, there was fingerprinting and

10 14:38:15 filtering technology on the marketplace, was there

11 14:38:18 not, at the time?

12 14:38:19 MR. INGBER: Objection. Lacks foundation.

13 14:38:20 THE WITNESS: I don't recall exactly what

14 14:38:22 was the state of the art in the marketplace at the

15 14:38:25 time.

16 14:38:25 BYMR.BASKIN:

17 14:38:26 Q. Well, did you hear of a company named --

18 14:38:37 do you recall hearing of a company named Audible

19 14:38:39 Magic?

20 14:38:41 A. I recall the name Audible Magic.

21 14:38:44 Q. Well, do you recall actually being in a

22 14:38:46 discussion -- strike that.

23 14:38:48 Were you aware that YouTube, upon its

24 14:38:54 purchase from Google Video -- by Google Video, had

25 14:38:58 in hand a license to use Audible Magic filtering

DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 2803, New York, NY 10123 (212)705-8585