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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 2 of 19
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` UNITED STATES DISTRICT COURT
` NORTHERN DISTRICT OF CALIFORNIA
` ---oOo---
`
`Page 1
`
`MARIA SCHNEIDER, UNIGLOBE
`ENTERTAINMENT, LLC, and
`AST PUBLISHING LTD.,
`individually and on behalf
`of all others similarly
`situated;
`
` Plaintiffs,
`vs. Case No. 3:20-cv-04423-JD
`YOUTUBE, LLC; and GOOGLE
`LLC;
`
` Defendants.
`__________________________/
`
` C O N F I D E N T I A L
` DEPOSITION OF CHRIS TING
` SAN FRANCISCO, CALIFORNIA
` WEDNESDAY, JUNE 29, 2022
`
`STENOGRAPHICALLY REPORTED BY:
`ANDREA M. IGNACIO, CSR, RPR, CRR, CCRR, CLR
`CSR LICENSE NO. 9830
`JOB NO. 846000
`
`
`
`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 3 of 19
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`Page 38
`the claimant who has not provided a full copy of the
`work, we may still find that there is a strong
`likelihood of copyright exception.
` MS. O'KEEFE: Okay.
` Q Have you ever found a DMCA takedown notice to
`be insufficient where you did not have -- strike that.
` Have you ever found a DMCA takedown notice to
`be insufficient on the basis of an exception for fair
`use where you did not have a complete copy of the
`copyrighted work?
` MR. WILLEN: Objection to the form.
` THE WITNESS: I'm sorry. There -- there are
`multiple parts to that -- that question. Could you
`repeat it one more time, please.
` MS. O'KEEFE: Q. Have you ever found a DMCA
`takedown notice to be insufficient on the basis of an
`exception for fair use where you did not have a
`complete copy of the copyrighted work?
` MR. WILLEN: Same objection.
` THE WITNESS: So in the case where we have
`received a DMCA takedown request, it may be incomplete
`for varieties of reasons. It may have failed the
`statutory requirements.
` In the case that it is a -- it meets the
`statutory requirements, but we feel that there is a --
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`Page 39
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`after reviewing for -- under our -- our review
`protocol for checking for copyright exceptions, we --
`we may find that the takedown request -- we -- we may
`ask the claimants to consider some copyright exception
`and ask them to consider things like whether the --
`the work is transformed.
` MS. O'KEEFE: Q. So you engage in back and
`forth with the claimant over the contours of the fair
`use exception?
` MR. WILLEN: Objection to the form.
` THE WITNESS: We -- we merely ask -- after
`we've done our own analysis on potential copyright
`exception or the likelihood of potential copyright
`exception existing in a -- yes, the likelihood of
`potential copyright exception existing, we merely ask
`the claimant to consider whether they thought about
`things like the four factors.
` MS. O'KEEFE: Okay.
` Q And do you identify those four factors for
`the claimant when you ask that question?
` A We -- we have a response where we ask them to
`consider things like whether the work has -- the new
`work has a different meaning than the original work,
`and ask them to consider how much of their work has
`been used in the -- in the new work.
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 5 of 19
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`Page 40
` Q Okay. Do you have canned responses that bear
`on fair use?
` A This response to them describing is a canned
`response.
` Q How many canned responses do you have that
`bear on fair use?
` MR. WILLEN: Objection to the form.
` THE WITNESS: I -- I don't recall at this
`point.
` MS. O'KEEFE: Q. Is it more than one?
` A I -- I believe it's more than one.
` Q Is it more than five?
` A I -- I'm not sure about that.
` Q In your canned response that bears on fair
`use, do you advise the DMCA claimant that they could
`face civil penalties if they make an unjustified DMCA
`takedown claim?
` A I -- I don't recall the exact text of the
`canned response. So if -- if -- if you're asking
`what's in the canned response, I'm not sure if that --
`that is in there.
` Q You had stated that the second factor was how
`much of the work was used.
` Please describe for me the physical steps
`that you take in interacting with your user interface
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`Page 43
`
` A Myself personally?
` Q Yourself personally.
` A I -- I would, I guess, remind -- remind you
`that I -- I -- I'm a people manager, so I am not
`participating in individual work as frequently as --
`as some other people on the team. So I may not be
`myself processing many takedown requests at any given
`time.
` So with that in mind, the question was, how
`many times per month?
` Q How many times in the last month have you
`consulted with legal counsel on a fair use question?
` A I -- I don't have an exact number.
` Q What's your best estimate?
` A I would say likely less than ten.
` Q Less than five?
` A I'm not sure about less than five.
` Q And how many DMCA takedown notices have you
`processed this month?
` MR. WILLEN: Objection to the form.
` THE WITNESS: I think similarly to my
`previous response, again, I'm a people manager, so
`I -- I don't participate very much these days in
`actioning DMCA requests myself. So I -- I do not
`remember how many I've processed in the last month.
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`Page 44
` MS. O'KEEFE: Q. Can -- can you give me your
`best estimate?
` A I would also say less -- less than ten.
` Q Less than ten?
` A (Witness nods head.)
` Q You've -- you've -- you've examined less than
`ten DMCA takedown notices in the last month?
` A Myself personally?
` Q Yourself personally, yeah.
` A Yes.
` Q What is the policy -- strike that.
` How does a member of the copyright operations
`team determine whether to review a particular takedown
`notice for fair use?
` MR. WILLEN: Objection to the form.
` THE WITNESS: So I think we would -- a member
`of the copyright operations team would review a DMCA
`takedown notice by going through certain steps.
` Number one is to determine whether the
`takedown meets the statutory requirements, whether
`the -- as required by the DMCA, there are some
`elements there that need to be present.
` And after that, the copyright operations team
`would look to see whether the -- there's any abuse of
`the process. For instance, if the claimant does
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 8 of 19
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`Page 45
`not -- is submitting a DMCA takedown request for
`content that they are not -- they do not own or are
`falsifying information on the legal form.
` And then the last step would be to
`determine -- to -- to evaluate potential copyright
`exceptions, such as fair use.
` MS. O'KEEFE: Okay.
` Q Do you evaluate every single takedown notice
`for copyright exceptions?
` A We -- there are a portion of -- so we have --
`we have some degree of automation.
` So a -- a classifier will evaluate a certain
`subset of DMCA takedown requests. And per the logic
`of the classifier, if there are signals in -- that it
`detects which potentially would flag it for manual
`review, for human review, then it would send it over
`to human review. And as part of human review,
`reviewers will evaluate for copyright exceptions.
` Q What is your best understanding of the
`classifiers that will send a takedown notice for
`manual review?
` A My best understanding of the classifiers?
` Unfortunately, that is -- it's kind of the
`domain of the product team. Like, I -- I myself
`and -- and my team, we -- we don't -- we don't set the
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 9 of 19
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`Page 46
`logic of -- of how the classifiers work. So that --
`it's a bit outside my expertise.
` Q Okay. I understand that you don't set the
`logic.
` Do you have an understanding of the logic of
`how the classifiers work?
` A Broadly.
` Q Can you please provide me with your broad
`understanding of the logic of how those classifiers
`work.
` A So similar to how I've described the overall
`review process where, you know, our -- any given DMCA
`takedown request is evaluated for completeness on the
`basis of the DMCA statutory requirements, as well as,
`you know, ruling out potential abuse, and then taking
`into consideration copyright exceptions such as
`fair -- fair use, a -- the classifier will similar --
`similarly try to take some of these into account.
` So if the classifier is uncertain -- this is
`to my best knowledge. Again, I -- I'm not an expert
`in this on the product side. But to my best
`knowledge, if the classifier is uncertain that one of
`these requirements has been met, then it will route it
`for a human to take a look at.
` Q Okay. Does YouTube ever find a DMCA notice
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 10 of 19
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`Page 47
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`to be insufficient without a manual review?
` A If the classifier finds that it is uncertain,
`again, to the best of my knowledge, as I am not a
`product specialist or have expertise in -- in the
`product or the classifier itself, my understanding is
`that if the classifier is uncertain, and there is the
`possibility that a DMCA notice is incomplete in some
`way, it will route to human review. And the human
`will there -- will complete the task and review all
`the -- all the elements as I've described.
` Q To the best of your knowledge, does the
`classifier consider the number of views on the video?
` A I -- I do not know the answer to that.
` Q Do you know whether the classifier considers
`the number of subscribers to the channel on which the
`video is posted?
` A I -- I don't know. These are --
` Q Who --
` A -- questions for the product team.
` Q Yeah.
` Who is on the product team that would deal
`with the classifier, if you know?
` A I -- I believe Kevin Zhu is -- would -- would
`be -- he -- he's familiar with the product side.
` Q Okay. I believe Mr. Zhu has moved to
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 11 of 19
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`Page 48
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`content ID.
` So who would be -- who else would be on
`the --
` A I believe that is --
` Q -- the team?
` A -- that's the same team.
` Q That's the same team?
` A (Witness nods head.)
` Q Okay. Who else is on that team besides Kevin
`Zhu?
` A I -- I believe Julian Bill is on that team.
` Q And who else is on that team?
` A I believe he reports to David Rosenstein.
` Q Okay. Going back to the factors for fair
`use, when the DMCA takedown notice does not include a
`copy of the original work, how do you determine how
`much of the original work has been used?
` A It's a case-by-case basis. In certain cases,
`the claimants may provide a link to a work on a
`different site -- their -- their work on a different
`site which we may be able to access and -- and view.
` In cases where the claimant provides a
`description of the work, it may be so well known that
`we understand to some degree what -- what is the --
`the extent of that work; for instance, if it's a
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 12 of 19
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`Page 61
` THE WITNESS: So we will -- as one part of
`our analysis of the DMCA takedown removal request, we
`will look at exceptions in the -- in the U.S., such as
`fair use, which may allow work to be lawfully used
`without being infringing, and we may consider similar
`international equivalence of fair use.
` MS. O'KEEFE: Q. Are there any other
`exceptions that you consider?
` A So I -- I think that fair use and -- and
`similar copyright exceptions that use a similar
`framework as the fair use -- as fair use does in the
`United States, we do consider those.
` Q Okay. Other than copyright exceptions or
`similar provisions applicable in other countries, what
`exceptions -- I'm sorry. Strike that.
` Other than fair use or similar provisions
`that are applicable in other countries, what
`exceptions to copyright do you consider?
` A I think as described, fair use and similar
`international exceptions, those would be the
`exceptions that -- that we evaluate.
` Obviously, if something is not subject to
`copyright, if it's a completely different legal issue
`such as trademark or privacy, that is outside the
`scope of copyright. I wouldn't describe it as an
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 13 of 19
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`Page 62
`exception, but it would be something we would not
`process if we receive a DMCA request for it.
` Q Okay. One more follow-up question on the
`numbers. Please provide me with your best estimate of
`the number of DMCA takedown notices that your team has
`disallowed in the past month on the basis of fair use.
` MR. WILLEN: Objection to the form.
` THE WITNESS: I -- I don't have the number
`off the top of my head of how many takedown requests
`we have asked the claimants to consider fair use for.
` MS. O'KEEFE: Okay.
` Q Do -- does your team ever find a DMCA
`takedown notice to be deficient on the basis of fair
`use?
` MR. WILLEN: Objection to the form.
` THE WITNESS: I'm not sure about -- sure
`about the word "deficient."
` But we have -- as we go through the process
`of reviewing a DMCA takedown, once we've gotten to the
`step of evaluating potential copyright exceptions such
`as fair use, we will ask the claimants to consider
`fair use and respond back to us with more detail about
`why they believe the content that they are targeting
`for removal does not qualify under a copyright
`exception such as fair use.
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`Page 63
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` MS. O'KEEFE: Okay.
` Q And after the claimant has responded, what is
`the next step for your team?
` A After the claimant has responded, we will
`typically consult with product counsel.
` Q And after you have consulted with product
`counsel, what is the next step for your team?
` MR. WILLEN: Objection to the form.
` THE WITNESS: Relating to the ticket that is
`at issue or the DMCA takedown request that is at
`issue, product counsel may advise whether we comply
`with the removal request based on the information that
`we've been provided by the claimants, or product
`counsel may advise that we do not remove the content
`if the likelihood of there being a copyright exception
`is -- is strong.
` MS. O'KEEFE: Okay.
` Q Does product counsel always contribute to the
`determination not to remove the content under the fair
`use exception?
` A There are situations where we -- so
`typically, over time we work with product counsel on a
`variety of cases which allows us to set some internal
`precedent on how to handle similar fact patterns.
` And if a fact pattern has been -- we've
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`Case 3:20-cv-04423-JD Document 208-7 Filed 12/08/22 Page 15 of 19
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`Page 64
`consulted with -- with product counsel, we understand
`the fact pattern, and the close -- and the new one
`closely mirrors that, and we have a decision -- we --
`we understand what was previously done in a similar
`situation, we may adopt the same decision for the new
`case without consulting product counsel.
` Q Please provide me with your best estimate for
`the number of times in the last month that your team
`has determined not to remove content on the grounds of
`a fair use exception.
` A Unfortunately, I -- I do not know the -- the
`number there.
` Q Do you think it's more or less than 100 times
`in the last month?
` A Unfortunately, I -- I don't have a good
`reference as -- in terms of the volume. So I -- I
`have no -- I can't even provide an estimate here --
` Q Okay.
` A -- unfortunately.
` Q Does your team provide the content owner with
`the reason for the refusal to remove the content?
` A Our team has canned responses which will,
`depending on the situation, explain to the claimant
`who is ask -- who is requesting to remove the video,
`we'll either provide them -- provide the claimants
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`Page 107
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` Q Any other metrics?
` A Those are the main two.
` Q Can you think of any others?
` A There are subsets of metrics underneath the
`timeliness metric. So we -- as an example, average
`response -- excuse me -- average time to response
`would be one metric. And then a different dimension
`of the metric would be average percents within target
`handling time.
` Q And what is your target handling time?
`
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` Q And for a counter-notice?
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` Q And when was that change made?
` A January 2022.
` Q Are there any other sub-metrics within the
`timeliness category?
` A No.
` Q And what is your target handling time for
`responding to a takedown notice?
`
`
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` I just want to make sure.
` A I'm not sure if there is a distinction there.
` Q Okay.
` A I think they -- as I'm understanding it, it's
`the same -- same thing.
` Q Okay. How do you measure the accuracy of a
`DMCA takedown response?
` A We have a quality assurance process by which
`samples of handled tickets or previously answered DMCA
`takedown requests are pulled and reviewed by a quality
`team.
` Those -- those quality reviewers will
`evaluate the initial decision by determining whether
`the correct canned response was sent, determining
`whether the video was properly removed or properly
`left live.
` There are some other factors involved in
`quality; for instance, whether -- there is an abuse
`check as well. So one consideration in the quality is
`whether the reviewer considered -- correctly
`considered abuse as a factor. And if the complaint
`wasn't seemingly abusive, pushed back against the
`
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`Page 109
`claimant to request more information to validate
`whether there is -- is or is not abuse.
` Q Does the quality assurance review result in
`reports?
` A By "reports," you mean, like, a summary of
`the results of the -- the findings?
` Q (Counsel nods head.)
` A We -- we track metrics on week over --
`week-over-week quality. So in terms of reporting,
`it -- it would be available in our dashboards.
` Q And what dashboards would it be available on?
` A Our metrics dashboard.
` Q And do you assess the accuracy of your
`handling of counter-notices in the same way that you
`assess the accuracy of handling takedown notices?
` A We do perform quality review on
`counter-notification handling by reviewers. The
`approach is a little different, because the
`counter-notification workflow has different steps to
`it than a takedown workflow. But in terms of the
`broad categories, they are similar.
` So for counter-notification quality, we are
`looking at whether the DMCA requirements are -- are
`present in the counter-notification, which is similar
`to the process in the takedown.
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`Page 110
`
` Those are different requirements for a
`counter-notification versus a -- a takedown, so that
`will be different in the quality review of that -- of
`that process.
` Also, similarly, we will check for abuse
`in -- in the submission of a counter-notification; for
`instance, if the uploader who is submitting a
`counter-notification has provided correct and
`non-abusive contact information or non-fraudulent
`contact information.
` And in addition, we look at the
`counter-state -- statement which is provided by the
`uploader. And -- and the quality -- the reviewer will
`assess whether the initial reviewer correctly --
`correctly analyzed the counter-statement from the
`uploader.
` Q Okay. And are any counter-notifications
`accepted without manual review?
` MR. WILLEN: Objection to the form.
` THE WITNESS: All of our counter-notifica- --
`all counter-notifications -- excuse me.
` There -- there is no automation run on
`counter-notifications.
` MS. O'KEEFE: Okay.
` THE WITNESS: So any counter-notification
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