YouTube wants to depose Stephen Colbert, Jon Stewart

Let's see how funny Jon Stewart and Stephen Colbert are on the witness stand.

The two comedians are apparently being dragged into the copyright fight between their employer and Google. Entertainment conglomerate Viacom, the company behind Stewart's The Daily Show and The Colbert Report filed a $1 billion lawsuit against Google earlier in the year, alleging that Google and YouTube encourage users to pirate copyright material.

The two companies entered the names of people they each wish to depose in court, according to documents filed in U.S. District Court for the Southern District of New York last week. Google, which acquired YouTube last October, wants to depose at least 30 people in addition to Colbert and Stewart. Among them are Viacom Chairman Sumner Redstone and CEO Philippe Dauman.

Viacom wants to question YouTube founders Steve Chen and Chad Hurley in addition to Google CEO Eric Schmidt and founders Larry Page and Sergey Brin.

Viacom could argue that interviewing Stewart and Colbert is irrelevant to the case and will try to convince the judge that deposing them is unnecessary. It's customary for corporations to jockey over the depositions of high-level executives or representatives, as Microsoft did with Bill Gates' deposition during its government antitrust trial in Washington, D.C. a decade ago.

"The rules for discovery are very broad," said Mark Litvack, an intellectual property attorney for Manatt, Phelps & Phillips. "But courts don't let you go on fishing expeditions. If people are added for tactical reasons rather than for legal reasons it's almost always scorned."

Google attorneys could argue that the comedians and the producers of their shows have made public statements that are very relevant.

For example, a year ago Colbert urged fans to make him a viral-video star. The comedian stood before a green screen on his show and played with a light saber. He encouraged fans to fill in the background in their own videos and submit them to his show.

"This could go to determining non-infringing uses," Litvack said. "If Viacom used the clips for marketing or promotional purposes Google could argue that Colbert needs to be deposed."

One question Google could ask is whether anyone at Viacom uploaded clips of Colbert or Stewart's shows to YouTube.

Before Viacom began demanding that YouTube remove them, snippets from The Colbert Report and The Daily Show were among YouTube's most popular.

According to court documents, lawyers expect the pre-trial to conclude in December 2008. This would mean that the case may not get to a jury until sometime in the spring of 2009, Litvack said.