Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 320

NOTICE by Hotfile Corp. re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION (Attachments: # 1 Exhibit A, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Errata, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Munn, Janet)

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EXHIBIT 4 Page 1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF FLORIDA 3 CASE NO. 11-20427-WILLIAMS 4 5 6 7 8 DISNEY ENTERPRISES, INC., TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP, COLUMBIA PICTURES INDUSTRIES, INC., and WARNER BROS. ENTERTAINMENT INC., 9 10 Plaintiffs, 11 v. 12 13 HOTFILE CORP., ANTON TITOV and DOES 1-10, 14 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 15 16 17 Deposition of JAMES BOYLE 18 (Taken by the Plaintiffs) 19 Raleigh, North Carolina 20 December 21, 2011 21 22 23 Reported by: 24 Marisa Munoz-Vourakis RMR, CRR and Notary Public TSg Job # 44315 25 TSG Reporting - Worldwide 877-702-9580 Page 2 1 APPEARANCE OF COUNSEL: 2 For the Plaintiffs: 3 DUANE POZZA, ESQ. 4 Jenner & Block 5 1099 New York Avenue, NW, Suite 900 6 Washington, DC 20001 7 8 9 10 For the Defendants: 11 DEEPAK GUPTA, ESQ. 12 Farella Braun & Martel 13 Russ Building 14 235 Montgomery Street 15 San Francisco, CA 94104 16 17 18 19 Deposition of JAMES BOYLE, taken by the 20 Plaintiffs, at Office Suites Plus, 3737 Glenwood 21 Avenue, Suite 100, Raleigh, North Carolina, on the 21st 22 day of December, 2011 at 11:04 a.m., before Marisa 23 Munoz-Vourakis, Registered Merit Reporter, Certified 24 Realtime Reporter and Notary Public. 25 TSG Reporting - Worldwide 877-702-9580 Page 38 1 2 3 BY MR. POZZA: Q. Are you aware of whether all documents in response to topic number eight have been produced? 4 5 MR. GUPTA: Objection, that's vague and ambiguous and it lacks foundation. 6 A. Yes, I believe they have. 7 Q. Are you aware of whether all documents in 8 response to topic number nine have been produced? 9 MR. GUPTA: Objection. Same 10 objection, once again it lacks foundation 11 and it's vague and ambiguous, to the extent 12 it's being formulated specifically in the 13 passive voice. 14 15 A. disclosed. 16 17 Yes, I believe those documents have been MR. POZZA: I'd like to mark Exhibit 3. 18 (The document referred to was marked 19 Plaintiff's Boyle Exhibit Number 3 20 for identification.) 21 Q. Are you familiar with this document? 22 A. Assuming that this is an unmodified version 23 24 25 of my expert report, yes, I am. Q. I'll represent that it is. What is this document? TSG Reporting - Worldwide 877-702-9580 Page 39 1 A. This is my expert report in this case. 2 Q. It describes a study you performed on 3 behalf of the defendants in this case? 4 MR. GUPTA: Objection, leading. 5 A. Yes, it does. 6 Q. What was the methodology of your study? 7 8 9 MR. GUPTA: Objection, that's vague and ambiguous. A. Can you be a little more precise? Would 10 you like me -- I'm happy to talk about the methodology 11 of the study. 12 in the report, and we can go through it, which would be 13 my preference, carefully, but I want to know which 14 aspect of the methodology you want me to answer? 15 Q. 16 17 20 We'll go through it carefully. What was the hypothesis, if any, that you were testing in your study? 18 19 I just -- which I lay out in some detail MR. GUPTA: Objection, that's vague and ambiguous. A. There were at least two hypotheses that I 21 was testing; the first was that Hotfile was being used 22 for the distribution of content that was either clearly 23 noninfringing or highly likely noninfringing. 24 25 The second related hypothesis was that some of those who were distributing content on Hotfile that TSG Reporting - Worldwide 877-702-9580 Page 44 1 not in evidence and it's vague and 2 ambiguous. 3 A. The list of noninfringing uses that I 4 considered in this report were free and open source 5 software, cultural material made available under 6 licenses, such as creative commons licenses and public 7 domain material. 8 9 Q. And did you explore the distribution of those three different kinds of materials? 10 11 MR. GUPTA: Objection, that's vague and ambiguous. 12 A. Could you clarify the question, please? 13 Q. The original question was to list examples 14 of the uses of the Hotfile system you studied. 15 question is, did you explore the distribution of those 16 three different kinds of materials as opposed to say 17 the storage? 18 MR. GUPTA: So my Objection, once again, 19 that assumes facts not in evidence, calls 20 for speculation and it's vague. 21 A. I would say that with some of the examples 22 that I was looking at, particularly open source 23 software, it appeared that competitors were uploading 24 the material or people were uploading the material, 25 which were open source licenses, and then it was being TSG Reporting - Worldwide 877-702-9580 Page 45 1 downloaded by many, many others. 2 an example of distribution. 3 That would seem to be Some of the other kinds of uses, for 4 example, some of the public domain material consistent 5 either with distribution or with storage, and it's 6 conceivable, of course, that while the person who 7 uploaded the material to Hotfile did not mind other 8 people downloading it, that they also used it as their 9 own source of storage. 10 So, for example, were I an open source 11 developer who wished to make my software available to 12 the world, I could use Hotfile for that purpose, and I 13 had evidence that people did use it for that purpose, 14 but I might also use Hotfile as a way of storing the 15 material myself. 16 Q. So the next sentence in the report says, 17 defendant's counsel asked me to study the use of the 18 Hotfile service to store or distribute or download the 19 types of material described above, and it goes on. 20 Do you see that? 21 A. I do. 22 Q. So you did study the use of the Hotfile 23 service to both store and to distribute these three 24 different types of material? 25 MR. GUPTA: Objection, TSG Reporting - Worldwide 877-702-9580 Page 52 1 Q. Turning to paragraph six, the last sentence 2 there, how did you determine whether Hotfile's 3 affiliate program compensated the open source software 4 developers for the software they write and freely 5 distribute? 6 MR. GUPTA: 7 not in evidence. 8 9 A. Objection, assumes facts I looked at two of the specific authors of open source software identified in the study, that is 10 to say, JDownloader on one case and iREB and sn0wbreeze 11 on the other. 12 that material from a variety of pieces of evidence, 13 including statements on the web site from which the 14 material originated, links directly to Hotfile and so 15 on. 16 I identified those who were uploading I then asked Elysium Digital to find out 17 whether someone who appeared to be this person or to be 18 affiliated with this person was actually a member of 19 the affiliate program. 20 cases that they did appear to be. 21 I discovered in both of those In addition, I determined that the 22 affiliate program compensates people for files that are 23 downloaded. 24 that A, some open source developers were using Hotfile 25 to distribute their material. From those pieces of evidence, I concluded B, it appears that they TSG Reporting - Worldwide 877-702-9580 Page 53 1 were members of the affiliate program. C, it appeared 2 that members of the affiliate program who were using 3 Hotfile to distribute their service would be 4 compensated. 5 Q. Did you examine other ways in which those 6 developers were being compensated? 7 MR. GUPTA: Objection, that's vague 8 and ambiguous and would call for 9 speculation. 10 A. When you say those, do you mean the 11 specific ones to which I just referred? 12 all open source software distributors? 13 Q. Do you mean I mean, the specific ones to which you 14 referred, specifically the developer of sn0wbreeze and 15 iREB. 16 17 18 MR. GUPTA: I'd like to lodge the same objection and also add foundation. A. I am not aware of other methods through 19 which the developer of iREB and sn0wbreeze is 20 compensated, but I simply don't know. 21 the affiliate program. 22 23 24 25 Q. I was looking at Did you consider doing a representative statistical sample of the uses of Hotfile as a whole? MR. GUPTA: Objection, it's vague and ambiguous. TSG Reporting - Worldwide 877-702-9580 Page 109 1 Q. Are you aware of -- do you believe that 2 there is data that would show the uses of the site by 3 those premium users? 4 MR. GUPTA: Objection, it's vague and 5 calls for speculation. 6 A. I am not aware of that data. 7 Q. So sub-iii, 9 sub-iii, let's start in the 8 middle of the sentence, I'm going to ask about this 9 language: Services, such as Hotfile, fill a gap in 10 internet's architecture by providing a convenient and 11 generic method of distributing or storing files that 12 are too large for e-mail. 13 Do you see that? 14 A. I do. 15 Q. What is the gap in the internet's 16 17 architecture to which you are referring? A. The internet, the general internet, meaning 18 the whole packet switched system, allows, obviously, 19 certain forms of communication very easily. 20 For example, e-mail communication can 21 travel over the internet, as it used to over 22 proprietary systems, as a set of packets. 23 However, while e-mail is very easy to use 24 and people can easily log on to it and use it, and many 25 other things, such as web browsing are very easy to do, TSG Reporting - Worldwide 877-702-9580 Page 110 1 one thing which is relatively hard to do over the 2 internet, without using a service such as Hotfile, is 3 to transfer a large file, and in fact, this has been 4 the subject of, you know, much commentary, much 5 internet humor, to the extent that that isn't an 6 oxymoron. 7 This is a difficult thing to do. In my personal experience, it is hard to 8 collaborate with colleagues around the world if one 9 needs to transfer large files, files that are too large 10 for e-mail, which is something that I sometimes need to 11 do, and so I personally have used services like 12 YouSendIt to transfer such files. 13 When I spoke of the gap in the internet's 14 architecture, I meant that without a service of the 15 kind that Hotfile appears to provide, it would be 16 difficult, if not impossible, for those that did not 17 own their own domain name or did not have the 18 capability to upload to a web page to share those large 19 files across the internet. 20 Q. 21 22 23 What about using an FTP? MR. GUPTA: Objection, lacks foundation, calls for speculation. A. FTP is certainly a method which experienced 24 users can use. First of all, I think many people 25 nowadays won't even know what FTP stands for. TSG Reporting - Worldwide It 877-702-9580 Page 111 1 stands for file transfer protocol. 2 longer have it as a standard feature. 3 evidence along that fact. 4 difficult method to do it. 5 Many browsers no There's actually I think people find it a In order to transfer it, ideally, it's 6 actually much easier if you have your own server onto 7 which the files were loaded, in which case people can 8 download it using the conventional HTTP, the 9 conventional method over the web. 10 So FTP is certainly a method, but I don't 11 think it's a method that is either convenient or offers 12 all the features of services such as YouSendIt or 13 Hotfile. 14 Q. You testified earlier, correct me if I'm 15 wrong, that you're not familiar with how Bittorrent 16 technology works? 17 A. That is correct. I know in the abstract. 18 I believe Bittorrent to be appear to be a file sharing 19 system, but beyond that, I know very little. 20 21 Q. useful for distributing large files? 22 23 24 25 So do you know whether or not Bittorrent is MR. GUPTA: Objection, calls for speculation. A. I do not. I do not believe that Bittorrent provides a stable URL from which authorized versions of TSG Reporting - Worldwide 877-702-9580 Page 157 1 on Hotfile was one of the searches? 2 A. Yes. 3 Q. For public domain materials, would you 4 describe this as a large number of downloads of public 5 domain content from Hotfile? 6 7 MR. GUPTA: A. Objection, it's vague. Certainly not as high as the 1.7 million 8 download figure for the open source programs. 9 included this because, as I understand the test in 10 Sony, the court in Sony and subsequent courts are 11 interested both in magnitude, that is to say, the 12 number of uses, but also in types of uses, and this is 13 illustrative of a type of use. 14 I When we think about the uses of a system in 15 order to spread cultural material, we, at least I, in 16 interpreting the Sony and Napster test, are not looking 17 only at the number, although that is clearly something 18 that we do look at, but also at what this represents. 19 In some cases, it may represent intensity of 20 preference. 21 rather than many people who like JDownloader. 22 People who really like Hamlet or Othello And so, again, I was offering this to the 23 court for the court's assessment of this use of the 24 service to provide this kind of material. 25 I note that the Huck Finn, we had 45 hash TSG Reporting - Worldwide 877-702-9580 Page 158 1 verified downloads of that particular book, and I think 2 one could come to different opinions as to whether or 3 not that is an important and substantial noninfringing 4 use. 5 licit use of the service. For myself, that seems like a viable and benign, 6 Q. Would you describe it as substantial? 7 A. I think that's a complex inquiry. In -- 8 the Sony court refers to many different types of 9 material. It refers to a single film, My Man Godfrey, 10 which was in the public domain; refers to a single 11 television program, Mr. Rogers' Neighborhood, which he 12 allowed to be there; refers to a single national public 13 radio station which allowed, and it lists those in its 14 discussion of substantial noninfringing uses. 15 that suggests strongly that the court in Sony cared 16 about what we might think of as a diversity of uses, as 17 well as about -- and did not believe that the important 18 thing to focus on was what the court of appeals in Sony 19 had focused on, which was predominant use. 20 To me, So to me, that suggests that this kind of 21 information would be relevant to the court, but the 22 court, of course, will make the final determination on 23 whether that's true or not. 24 25 Q. So this is -- of these four works, there are 49 verified downloads, correct? TSG Reporting - Worldwide 877-702-9580 Page 166 1 open source development, a kind of creativity, and the 2 fact that the developers of that open source software 3 are actively choosing to use Hotfile licitly to spread 4 it and appear to be gaining some compensation, I 5 believe that a court would see that as significant in 6 the determination of substantial noninfringing uses. 7 Q. And in the sentence when you talk about the 8 most common uses, are you referring to those particular 9 downloaded files that iREB and sn0wbreeze? 10 A. IREB, sn0wbreeze, JDownloader, but also I 11 was talking about other open source programs which 12 weren't downloaded as many times but which were also 13 being downloaded. 14 In the next sentence, I very carefully add 15 the qualification, which is part of this: 16 does not attempt to present a statistically 17 representative sample of the usage of Hotfile, and I 18 have no personal knowledge of what Hotfile's uploaded 19 content or of user downloads is noninfringing. 20 Nevertheless, within the limits suggested by the 21 sentence, my investigation provided some striking 22 facts, and then I list the factual information, which 23 we have discussed. 24 25 Q. This report Are there any other potential noninfringing uses of Hotfile, other than distributing those three TSG Reporting - Worldwide 877-702-9580 Page 167 1 kinds of files that we've been discussing throughout 2 this deposition? 3 MR. GUPTA: Objection, calls for 4 speculation, asked and answered, goes beyond 5 the scope of his report. 6 A. Absolutely there are. I mention at the 7 beginning of the report that I don't attempt to do an 8 exhaustive study. 9 So, for example, one could use Hotfile to 10 store or to share material one had generated one self; 11 large briefs, large documents. 12 share photographs. 13 access to federal government works which are in the 14 public domain for that reason. 15 for uses that would be fair use. One could use it to One could use it to store or get One could also use it 16 So material which was copyright but which 17 because of the particular manner of its use, could be 18 considered fair use. 19 So I think it is debatable. I would argue that there are cases where 20 people can use storage in order to have archival or 21 backup copies in order to space shift content that they 22 had licitly purchased, and I think a service such as 23 Hotfile could be used for that, and Hotfile clearly 24 could, as a matter of technical potential, be used for 25 that. TSG Reporting - Worldwide 877-702-9580 Page 178 1 2 3 MR. GUPTA: No, the covering e-mails are just covering e-mails. A. Most of my communication with Elysium was 4 by teleconference, by phone call, and then I would get 5 e-mails, which were basically the only purpose of the 6 e-mail was to include the attachment. 7 So to the best of my knowledge, you have 8 all of the information that I received from Elysium, 9 which were facts and data on which I rely for my 10 opinion, and I tried to be as scrupulous about that as 11 I was about the conservatism of the method here. 12 13 Q. This may provoke an objection. What do you know about the use of Hotfile storage? 14 MR. GUPTA: I'll ask the witness not 15 to answer as to work product, and also 16 object that it's vague, ambiguous, calls for 17 speculation and lacks foundation. 18 MR. POZZA: Are you instructing the 19 witness not to answer? 20 MR. GUPTA: I'll give him limited room 21 to answer it. 22 opening report, I think he can answer. 23 A. To the extent relevant to his Based on the material in my opening report, 24 information there, I saw a design, which is consistent 25 with the use of Hotfile for storage. TSG Reporting - Worldwide 877-702-9580 Page 179 1 I saw a few examples in my attempts to 2 think about and search to find examples of this. I 3 would come upon other material, such as PowerPoints, 4 for example, which suggested the possibility of 5 storage. 6 I saw in the course of my inquiry a fair 7 amount of zero download material that seemed to meet 8 written fact, which would be consistent with basically 9 personal backup, the file would be stored and you would 10 only download it if you lost it or garbled it so that 11 it's consistent with that, it certainly doesn't prove 12 it. 13 are relevant to this report which, as I note, focuses 14 mainly on the three subjects we have been discussing; 15 namely, open source materials, public domain and 16 creative commons license material. 17 18 And those are all the pieces of information that Q. Does Hotfile encourage the storage of materials? 19 MR. GUPTA: Objection, vague and 20 ambiguous, calls for speculation as to 21 Hotfile's intent and goes beyond the expert 22 report. 23 A. In my opinion, that is something about 24 which a court would have to look at a number of 25 factors. TSG Reporting - Worldwide 877-702-9580 Page 196 1 Hepatitis C? 2 A. It was found because I was trying to look 3 for different types of material on line. It 4 occurred -- on Hotfile. 5 might be creative commons licensed content stored that 6 was scientific in nature. 7 search that I did, but it included PowerPoint and some 8 science terms, and it turned up this file. 9 that didn't have enough information on the file to say It occurred to me that there I can't remember the exact As I noted, 10 it was infringing. I thought it was very unlikely that 11 it was infringing. It's not the kind of content that I 12 would imagine would be, but since I couldn't determine 13 that and since it didn't fall into the category, which 14 I was considering here, I excluded it from my 15 consideration. 16 17 Q. Do you know whether or not that link is publicly available? 18 A. I believe it is. 19 Q. I guess did you find it by searching on 20 Google as opposed to searching by Hotfile's own data? 21 A. Yes, I found it by searching on Google. 22 Q. So that's an example of personal storage 23 but with a publicly available link that would allow 24 other people to download that? 25 MR. GUPTA: Objection, TSG Reporting - Worldwide 877-702-9580 Page 197 1 mischaracterizes his testimony and seeks 2 speculation. 3 A. As I said, I ended up excluding this, 4 because it wasn't the type of material in there, and, 5 again, because I applied this extremely conservative 6 squeaky clean analysis, I couldn't tell that that was 7 personal -- the facts were consistent with that, and 8 yes, the link was publicly available. 9 Q. Now, in the scope of this report, have you 10 considered any data about the number of files that are 11 never -- that are uploaded but not ever downloaded from 12 Hotfile? 13 14 15 A. In the scope of this report, I have not considered that. Q. In the scope of this report, have you 16 considered the extent to which Hotfile is used to 17 upload files only for personal retrieval by the 18 uploader? 19 A. No, in the scope of this report, I did not 20 specifically consider it as an example of files which I 21 would identify those numbers. 22 report as a potential, noninfringing use. 23 is offering the court facts about potential, 24 noninfringing uses. 25 with that. I did list it in the The report I say the system is consistent That is in my report, that is to say, it TSG Reporting - Worldwide 877-702-9580 Page 201 1 SIGNATURE PAGE 2 3 4 5 Digitally signed by James Boyle DN: cn=James Boyle, o, ou, email=boyle@law.duke.edu, c=US Date: 2012.01.23 13:24:53 -05'00' 6 7 ___________________________ 8 JAMES BOYLE 9 10 11 SUBSCRIBED AND SWORN to before me this ______ 12 day of _____________________________, 20__. 13 14 15 16 17 ___________________________ NOTARY PUBLIC 18 19 My Commission expires:__________________________ 20 21 22 23 24 25 TSG Reporting - Worldwide 877-702-9580 Page 202 1 TRANSCRIPTION 2 3 MMV CASE NAME: Disney vs. Hotfile 4 5 6 WITNESS NAME: JAMES BOYLE 7 DATE: December 21, 2011 PAGE LINE 8 9 READS SHOULD READ 10 18 17 No, I have not. I have downloaded one file. ____________________________________________________ 11 6 59 signature signal ____________________________________________________ 12 illicitly licitly 8 64 ____________________________________________________ 13 65 17 that in fact file in fact that file ____________________________________________________ 14 67 21 is has ____________________________________________________ 15 76 13 infringing noninfringing ____________________________________________________ 16 83 10 indecent inducement ____________________________________________________ 17 102 12 mutual neutral ____________________________________________________ 18 111 4 do it use ____________________________________________________ 19 and in addition 120 14-15 and telling ____________________________________________________ told 20 141 15 hope file Hotfile ____________________________________________________ 21 155 10 license material licensed ____________________________________________________ 22 165 8 less lesser ____________________________________________________ 23 copyrighted 167 16 copyright ____________________________________________________ 24 ____________________________________________________ 25 ____________________________________________________ TSG Reporting - Worldwide 877-702-9580 Page 203 1 2 C E R T I F I C A T E I, Marisa Munoz-Vourakis, RMR, CRR and Notary Public, 3 the officer before whom the foregoing proceeding was 4 conducted, do hereby certify that the witness(es) whose 5 testimony appears in the foregoing proceeding were duly 6 sworn by me; that the testimony of said witness(es) were 7 taken by me to the best of my ability and thereafter 8 transcribed under my supervision; and that the foregoing 9 pages, inclusive, constitute a true and accurate 10 11 transcription of the testimony of the witness(es). I do further certify that I am neither counsel for, 12 related to, nor employed by any of the parties to this 13 action in which this proceeding was conducted, and 14 further, that I am not a relative or employee of any 15 attorney or counsel employed by the parties thereof, nor 16 financially or otherwise interested in the outcome of the 17 action. 18 IN WITNESS WHEREOF, I have hereunto subscribed my name 19 this 27th of December, 2011. _______________________ MARISA MUNOZ-VOURAKIS 20 21 Notary #20032900127 22 23 24 25 TSG Reporting - Worldwide 877-702-9580 Page 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-20427-WILLIAMS DISNEY ENTERPRISES, INC., TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP, COLUMBIA PICTURES INDUSTRIES, INC., and WARNER BROS. ENTERTAINMENT INC., Plaintiffs, v. HOTFILE CORP., ANTON TITOV and DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Continued Deposition of JAMES BOYLE Volume II (Taken by the Plaintiffs) Raleigh, North Carolina January 19, 2012 Reported by: Marisa Munoz-Vourakis RMR, CRR and Notary Public TSG Job # 45588 TSG Reporting - Worldwide 877-702-9580 Page 205 1 APPEARANCE OF COUNSEL: 2 For the Plaintiffs: 3 DUANE POZZA, ESQ. 4 Jenner & Block 5 1099 New York Avenue, NW, Suite 900 6 Washington, DC 20001 7 8 9 10 For the Defendants: 11 DEEPAK GUPTA, ESQ. 12 Farella Braun & Martel 13 Russ Building 14 235 Montgomery Street, 17th Floor 15 San Francisco, CA 94104 16 17 18 o0o 19 20 Continued Deposition of JAMES BOYLE, 21 taken by the Plaintiffs, at Office Suites Plus, 3737 22 Glenwood Avenue, Suite 100, Raleigh, North Carolina, on 23 the 19th day of January, 2012 at 9:38 a.m., before 24 Marisa Munoz-Vourakis, Registered Merit Reporter, 25 Certified Realtime Reporter and Notary Public. TSG Reporting - Worldwide 877-702-9580 Page 209 1 Q. What is Exhibit 2? 2 A. Exhibit 2 appears to be my rebuttal report. 3 Q. This is your rebuttal report submitted in 4 5 this Hotfile litigation, correct? A. That appears to be the case. I haven't 6 read all of it, but assuming it's as I submitted it, 7 then that would be true. 8 9 MR. POZZA: And just for the record, I'll note the text of the report itself, 10 there were some attached exhibits that were 11 also sent, but those are not included in 12 this exhibit, although some of them we'll 13 look at later. 14 15 16 Q. We went over this a bit last time, but what is your educational background? A. I have an LLB law degree from Glasgow 17 University and an LLM and an SJD from Harvard Law 18 School. 19 Q. 20 21 And what are you formally trained in? MR. GUPTA: Objection, vague and ambiguous. 22 A. I am trained as a lawyer and legal scholar. 23 Q. What bar are you a member? 24 A. I'm not a member of the bar. 25 Q. Have you ever been a member of the bar? TSG Reporting - Worldwide 877-702-9580 Page 444 1 (Off the record at 5:15 p.m.) 2 (On the record at 5:18 p.m.) 3 BY MR. POZZA: 4 5 6 Q. If you look at paragraph 53, is this a statistical analysis you present here? A. This is an analysis of the data in -- that 7 Hotfile keeps under the log heading paid for connected 8 to the Zebrak study, the Zebrak/Waterman study, and in 9 particular using Mr. Zebrak's categories in order to 10 indicate of the paid for files, that is to say, the 11 files that were the files that caused users to convert 12 to the premium service that caused them to actually -- 13 the files on which they chose to select premium, what 14 percentage of the daily download total of those files 15 were the ones which caused the user to convert to 16 premium. 17 18 Q. Do you know what queries were used to generate this table? 19 20 MR. GUPTA: Objection, vague as to queries. 21 BY MR. POZZA: 22 Q. Database queries? 23 A. So I'm not sure what you mean by database 24 queries. 25 was the arithmetic process that went through there. Basically what I was trying to describe there TSG Reporting - Worldwide 877-702-9580 So Page 446 1 2 material, yes. Q. Are you purporting to claim that this 3 allowed you to draw any opinions or conclusions about 4 Hotfile? 5 A. I would say that these numbers indicate 6 that the category that Mr. Zebrak identified as 7 noninfringing had a much higher conversion rate, that 8 is to say, a rate of converting people to premium than 9 the confirmed infringing. 10 I'd say in addition, that Mr. Zebrak's 11 confirmed infringing category was the lowest of all of 12 the types of content, lower even than unknowable, and 13 so I think I can from that draw the conclusion that 14 Hotfile was gaining economic success from noninfringing 15 material, number one, I can conclude that; and number 16 two, that they were actually gaining more economic 17 success proportionately from noninfringing material 18 than from confirmed infringing or highly likely 19 infringing material. 20 Q. Can you extrapolate these results from the 21 1750 files to the broader population of files on 22 Hotfile? 23 A. I believe it is the assertion of 24 Dr. Waterman and Mr. Zebrak that the study can be 25 extrapolated. I, for the reasons in this report, I TSG Reporting - Worldwide 877-702-9580 Page 462 1 2 3 4 5 SIGNATURE PAGE you. (Whereupon the deposition was concluded at 5:43 p.m.) (Signature reserved.) 6 Digitally signed by James Boyle DN: cn=James Boyle, o, ou, email=boyle@law.duke.edu, c=US Date: 2012.01.31 15:55:27 -05'00' 7 ___________________________ 8 JAMES BOYLE 9 10 11 SUBSCRIBED AND SWORN to before me this ______ 12 day of_____________________________, 2012 13 14 15 16 ___________________________ NOTARY PUBLIC 17 18 My Commission expires:__________________________ 19 20 21 22 23 24 25 TSG Reporting - Worldwide 877-702-9580 Page 464 1 2 C E R T I F I C A T E I, Marisa Munoz-Vourakis, RMR, CRR and Notary Public, 3 the officer before whom the foregoing proceeding was 4 conducted, do hereby certify that the witness(es) whose 5 testimony appears in the foregoing proceeding were duly 6 sworn by me; that the testimony of said witness(es) were 7 taken by me to the best of my ability and thereafter 8 transcribed under my supervision; and that the foregoing 9 pages, inclusive, constitute a true and accurate 10 11 transcription of the testimony of the witness(es). I do further certify that I am neither counsel for, 12 related to, nor employed by any of the parties to this 13 action in which this proceeding was conducted, and 14 further, that I am not a relative or employee of any 15 attorney or counsel employed by the parties thereof, nor 16 financially or otherwise interested in the outcome of the 17 action. 18 IN WITNESS WHEREOF, I have hereunto subscribed my name 19 this 23rd of January, 2012. 20 21 22 23 ___________________________ MARISA MUNOZ-VOURAKIS Notary #20032900127 24 25 TSG Reporting - Worldwide 877-702-9580