This post is part of Revisiting Litigation Alleging Google Discovery Violations.
Viacom International, Inc. v. YouTube, Inc. – docket. 1:07-CV-02103-LLS (S.D.N.Y.).
Filed March 13, 2007. First filing as to discovery violations: March 18, 2010.
Case allegation: “YouTube’s website purports to be a forum for users to share their own original ‘user generated’ video content. In reality, however, a vast amount of that content consists of infringing copies of Plaintiffs’ copyrighted works.” Complaint.
Case disposition: Summary judgment granted for defendant based on the safe-harbor provisions of the Digital Millenium Copyright Act. Viacom appealed. The parties announced a settlement in March 2014 and announced that no money changed hands.
Viacom’s Motion for Summary Judgment at heading “Defendants Cannot Walk Away from Their Contemporaneous Internal Documents.”
As to YouTube’s knowledge of copyright infringement: “The internal emails and memoranda of YouTube’s founders and Google’s senior executives discussed above make a compelling and indisputable record of Defendants’ intent to use infringing videos clips to build the YouTube business.” Viacom’s Motion, pages 5 to through 21, offer a dozen quotes supporting this contention, such as “we’re hosting copyrighted content” and “we need views, [but] I’m a little concerned with the recent Supreme Court ruling on copyright content.” “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”
As to YouTube founder documents: “Defendants fail[ed] to preserve and produce many key documents.” “Almost none of … the internal emails and memoranda of YouTube’s founders … were produced by Google or YouTube, which claims they were all lost.” “Chad Hurley, a founder and YouTube’s Chief Executive from its inception to today, revealed for the first time [at] his deposition that he ‘lost all’ of his YouTube emails for the key time period of this case.”
As to documents from Google CEO Eric Schmidt: He “claims to use and email from ‘probably 30’ different computers … [y]et [his] search for responsive materials [pertaining to YouTube’s policies and practices and Google’s acquisition] ‘yielded 19 documents.’ Schmidt explained: ‘[i]t has been my practice for 30 years to not retain my emails unless asked specifically. … ‘It was my practice to delete or otherwise cause the emails that I had read to go away as quickly as possible’.”
On witness memories: Viacom remarks on “the ostensible memory failures of their key executives when deposed.” YouTube founder Chad Hurley “developed serial amnesia” in his deposition. Google go-founder Larry Page “essentially disclaimed memory on any topic relevant to this litigation, even including, for example, whether he was in favor of Google’s acquisition of YouTube, even though it was Google’s largest corporate transaction to date and viewed as transformative to its business.” (See excerpted deposition transcript.) “This Court can decide whether these key executives and witnesses behaved with the level of candor and respect for the legal process that this Court has a right to expect from senior executives of important public companies.”
Viacom never filed a motion for sanctions for spoliation.
***
Deposition of Google then-CEO Eric Schmidt including his explanation why he had just 19 emails pertaining to YouTube (“[i]t has been my practice to not keep my e-mails”) as well as claiming not to remember numerous facts about YouTube and Google’s strategy in video.
Deposition of Google co-founder Larry Page with analysis of his recollection. By my count, Page said he did remember when asked about 132 aspects of Google and YouTube practices.
Deposition of YouTube co-founder Chad Hurley (parts 1, 2, 3). Hurley had no difficulty recalling most aspects of product strategy, negotiation strategy, distribution strategy, and other topics. However he was unable to recall multiple subjects that were sensitive in light of the litigation: the basis of Google’s valuation of YouTube (part 1 pages 29-32), instances of entire movies uploaded to YouTube (part 2 pages 12-16), copyright enforcement policies (part 2 pages 19-20 and 26-30), and why YouTube removed ads from Watch Pages (part 2 pages 23-24).
Google’s Opposition to Plaintiffs’ Motions for Partial Summary Judgment. Makes no mention of Viacom’s allegations of documents inexplicably lost, of emails deleted, or witness’ memories.
Order of June 23, 2010 granted Google’s motion for summary judgment without ruling on any of the discovery issues raised in Viacom’s motion.