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

Filing 217

MOTION to Strike and Memorandum of Law of Defendants Hotfile Corporation and Anton Titov to Strike Plaintiffs' Putative "Rebuttal" Report of Dr. Richard Waterman Before the Close of Expert Discovery on January 17, 2012 and Motion for Expedited Briefing and Hearing at the Upcoming Status Conference on January 13, 2012 by Hotfile Corp., Anton Titov. Responses due by 1/26/2012 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Munn, Janet)

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EXHIBIT ā€œCā€ Waterman, Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DISNEY ENTERPRISES, INC., Plaintiffs, ET AL., vs. HOTFILE CORP., ANTON TITOV, ET AL., Defendants. : CIVIL ACTION : NO. 11-20427 Tuesday, November 29, 2011 Videotaped deposition of RICHARD WATERMAN, a Ph.D., taken at the Law Offices of STRADLEY, RONON, STEVENS & YOUNG, LLP, 2005 Market Street, Suite 2600, Philadelphia, Pennsylvania, on the above date, beginning at 9:33 a.m., before Theresa Kepler, CCR, RPR-Notary Public, there being present. LOVE COURT REPORTING, INC. 1500 Market Street 12th Floor, East Tower Philadelphia, Pennsylvania 19102 (215) 568-5599 Love Court Reporting, Inc. Waterman, Page 8 1 A. There is no reason whatsoever. 2 Q. Okay. Dr. Waterman, I'm handing you 3 now what's been marked as Exhibit 18. 4 5 Dr. Waterman, do you recall receiving the subpoena for documents in this case? 6 A. I do recall that, yes. 7 Q. Is Exhibit 18 that subpoena? 8 A. It does appear to be that subpoena, Q. I see you've turned or you've 9 10 yes. 11 previously turned to the second to last page, if you 12 could do so again and look at Request Number 1. Do 13 you see -- 14 A. Excuse me. 15 Q. Do you see that? 16 A. Yes, I do. 17 Q. This request asks for all documents 18 considered in formulating your opinion in the 19 present litigation. Professor, or Dr. Waterman, 20 have you now produced in this case every document 21 that you considered in formulating your opinion? 22 A. Yes, I have done that. 23 Q. There is no document that you've 24 excluded? re...1J111UWA Love Court Reporting, Inc. Waterman, Page 1 A. There are no exclusions. 2 Q. Dr. Waterman, I note that you did not 3 produce or identify in your report any language or 4 web page appearing at the Hotfile website. Did you 5 rely in any way on the Hotfile website as it appears 6 on the Internet in forming your opinion today? 7 A. I have been on the Hotfile website so 8 I understand what it looks like and the nature of 9 what a link looks like, what it appears on the 10 Hotfile website, but in terms of the analyses that I 11 have done and which is the information behind my 12 opinion that information was not directly obtained 13 by myself but from records that Hotfile kept and 14 then were passed on to counsel. 15 16 17 Q. Did any of the statements on Hotfile's website influence your opinion in any way? A. No, in that I did not review the 18 entire Hotfile website in order to, you know, 19 determine the nature of the finds. 20 Q. So your analysis or your review of 21 the Hotfile website consisted of familiarizing 22 yourself with the website generally? 23 24 A. I think that's a great word for it, "familiarization," that's what I was really doing on lbaN1 LAN Love Court Reporting, Inc. Waterman, Page 10 1 2 the Hotfile website. And as you sit here today you can't Q. 3 think of any specific web page or web language that 4 you considered in formulating your opinion? 5 6 A. No, there is nothing specific that finds its way into my report in any way. 7 Q. Or that you relied on. 8 A. Or that I relied on. 9 Q. Have you ever uploaded a file 10 11 12 13 14 15 16 17 18 19 20 21 yourself to Hotfile? A. No, I have not, sir, gone through that process. Q. Have you ever downloaded a file from Hotfile? A. To my recollection no, though I have seen what a page of links looks like on Hotfile. How long in aggregate would you say Q. spent on Hotfile's website? A. I would imagine something order of 30 minutes to an hour. There is no other documents you'd Q. 22 like to produce now that you've considered or relied 23 on in forming your opinion? 24 16.EMV A. 111.1681.adhldid. No, there are no additional ir...11,11011 Love Court Reporting, Inc. Waterman, Page 11 1 documents. 2 3 Q. Did you meet with anyone to prepare for your deposition today, Dr. Waterman? 4 A. I met yesterday with Mr. Pozza. 5 Q. For how long? 6 A. I believe it was approximately three 8 Q. Anyone else? 9 A. Yeah, at the meeting yesterday Duane 7 10 11 12 13 hours. was the only person there. Q. Did you have any other preparation for your deposition today? A. There was a phone call, a brief phone 14 call Sunday morning I believe it was, and on that 15 call was Steve Fabrizio as well as Duane here. 16 Q. And how long was that phone call? 17 A. I think that was approximately 20 18 , minutes, it was a brief call. 19 Q. And that was two days ago? 20 A. That was two days ago, yeah. 21 Q. Dr. Waterman, what did you do to 22 23 24 prepare for rendering your opinion in this case? MR. POZZA: I'd object that that is vague and ambiguous. Love Court Reporting, Inc. Waterman, Page 53 1 Hotfile would fit into the definitions of cyb -- of 2 what people understand are cyberlockers. 3 Q. 4 5 What is a cyberlocker? MR. POZZA: Objection. This calls for testimony on technical matters. 6 THE WITNESS: A cyberlocker as in the 7 instance of Hotfile is a site in which a user can upload content, be presented with a link 9 to that content and then in some form may 10 share that link. That's typically the modus 11 operandi of a cyberlocker. 12 BY MR. LEIBNITZ: 13 Q. Are you an expert in law? 14 MR. POZZA: Objection. Vague. 15 THE WITNESS: I am clearly not 16 trained as a lawyer. I'm trained as a 17 statistician. 18 BY MR. LEIBNITZ: 19 Q. Are you trained as a technologist? 20 A. I -- I find the word "technologist" 21 very, very vague, but certainly in terms of -- of 22 computing a lot of my training would have involved, 23 because statistics, my discipline is a very broad 24 discipline, but the part that I have been involved ArMeli,m10A111111.111, U114 Love Court Reporting, Inc. Waterman, Page 83 1 seeing in this particular time or, you know, area 2 for which the population was drawn would have no 3 particular reason for believing that it was 4 different from some other one. And that, you know, 5 wouldn't be a statistical statement that was driving 6 that because you need data to make a statistical 7 statement but one I would say of general expertise. 8 9 Q. case? MR. POZZA: Objection. The question 10 11 Did you do that here in the Hotfile is vague. THE WITNESS: My statements in the 12 13 Hotfile case refer to what was hap -- in 14 terms of the analysis that I did refer to 15 January 2011. 16 BY MR. LEIBNITZ: 17 Q. Do you purport to opine in this case, 18 Dr. Waterman, about any behavior outside 19 January 2011? 20 21 22 MR. POZZA: Object as to the meaning of behavior. THE WITNESS: My numbers that I 23 present in the report are definitely 24 statements specifically about January, and Love Court Reporting, Inc. Waterman, 1 then I would say to the extent that the world 2 was similar before January, for example, 3 December, that if in -- if I had no reason to 4 believe that the world had changed 5 dramatically, you know, that there was no 6 event of interest that would change behavior, 7 then that the results that I provided would 8 give one a sense of what was likely happening 9 prior to that point. 10 BY MR. LEIBNITZ: 11 Q. Let's be very clear, sir. Do you 12 purport in this case to opine about behavior outside 13 January 2011? 14 15 16 MR. POZZA: Object -- same objection, and asked and answered. THE WITNESS: I would just reiterate 17 that the statements that I make are 18 absolutely related to January 2011, I mean, 19 because that was the population from which 20 the log file -- you know, we drew samples 21 from the January log file, so this is a 22 statement about January 2011. And the extent 23 to which a month of December of 2010 or 24 November 2010 would be expected to be similar YI1S1110 sLIg Love Court Reporting, Inc. Waterman, 1 or, as I would say, I have no reason to 2 believe that the world changed in some 3 dramatic fashion, there was no massive event 4 of interest, then my sense would be that this 5 would give me good understanding of what was 6 -- what was likely to have happened 7 beforehand. But I wouldn't say that that 8 statement -- I wouldn't put that statement in 9 the same category as I would the one about 10 the population for which I drew the sample. 11 BY MR. LEIBNITZ: 12 Q. Dr. Waterman, in your opinion how 13 much infringement has happened by virtue of the 14 Hotfile website in the last 24 hours? 15 A. The last 24 hours I would not want to 16 provide an opinion on that because what I learned 17 about was January 2011, prior to the case being 18 brought. I think that once the case is brought, you 19 know, then behavior can change. That would be 20 exactly one of those instances, a kind of waterfall 21 or watershed type of event where I would anticipate 22 behavior to change, potentially change quite 23 dramatically once the case is brought. 24 And so I -- and I have no strong Love Court Reporting, Inc. Waterman, Page 86 1 basis to say one way or another what the result of 2 that would be, but typically when someone is told, 3 you know, that they are doing something illegal 4 their behavior changes, fundamentally changes. And 5 so we don't have -- I do not have information prior 6 to the case, so I don't want to say anything about 7 what happened. I think it was sometime in February 8 after that point in time. 9 Q. So you can't opine as you sit here 10 today that there was a non-zero level of 11 infringement in the last 24 hours on Hotfile? 12 MR. POZZA: Objection. Vague. 13 THE WITNESS: I have collected no 14 data on the last 24 hours. I, to be honest, 15 don't even know if the site exists in the 16 last 24 hours. 17 BY MR. LEIBNITZ: 18 Q. 19 Can you provide an opinion today about the level of infringement over the last week? A. 20 I would repeat the same answer as I 21 provided before that any time after the case was 22 brought and when defendants understood that this 23 litigation was going to happen that the behavior of 24 the site would have -- could have changed radically ithbinbraltai-4..11.411.mellE044 Love Court Reporting, Inc. Waterman, Page 87 1 as compared to before it was brought and since my 2 data is from the pre time period that is the time 3 period for which I'm most comfortable in making 4 statements. So I don't know whether the site exists 5 in all honesty so I don't know whether there's been 6 a download. 7 Q. So there may be a zero percent level 8 of infringement using Hotfile's technology in the 9 last week? 10 11 12 13 A. I agree that both are possibilities. Q. So you can't testify that it's not zero percent in the last week, right? MR. POZZA: Objection. Asked and 14 15 Likewise there could be 100 percent, answered. THE WITNESS: As I say, my -- my 16 17 study's absolutely clear as to the where the 18 log file was drawn from which was January of 19 2011 and my report pertains to that period in 20 terms of the conclusions that I draw. 21 BY MR. LEIBNITZ: 22 Q. Can you testify as you sit here today 23 that there was a non-zero level of infringement in 24 the last week on Hotfile? Love Court Reporting, Inc. Waterman, MR. POZZA: Objection. Asked and 1 2 answered. You're just asking the same 3 question. THE WITNESS: As I said, it may have 4 5 been a hundred percent, it may have been 6 99 percent, it may have been 0 percent. 7 BY MR. LEIBNITZ: 8 Q. MR. POZZA: Objection. Asked and 9 10 You can't tell one way or the other? answered. THE WITNESS: As I've said, my data 11 12 set, the one that I've analyzed is to do with 13 January and so in terms of the numerical 14 quantities that I present in my report they 15 will refer to January 2011. 16 BY MR. LEIBNITZ: 17 Q. You can't testify as you sit here 18 today that there was a non-zero level of copyright 19 infringement using Hotfile's technology in the last 20 six months, can you? 21 22 23 24 MR. POZZA: Objection. Misstates testimony. Vague. THE WITNESS: Six months takes us back to May of 2011. May of 2011 is after Love Court Reporting, Inc. Waterman, Page 89 1 the time period for which I have the log file 2 which is January. So as I noted in my 3 statements, the numerical statements that I 4 provided relate to January of 2011. The 5 amount of infringement that happened 6 subsequent to that event we have -- I have no 7 information on to make a determination as to 8 whether it's a hundred percent, 90 percent, 9 50 percent or your hypothetical of 10 zero percent. 11 I have not drawn a conclusion 12 about -- in my report didn't draw a 13 conclusion about what happened yesterday on 14 Hotfile. 15 BY MR. LEIBNITZ: 16 Q. Or in the last week, or in the last 17 month, or in the last six months, or indeed since 18 the Complaint was filed in this case. 19 MR. POZZA: Objection. 20 21 Argumentative. THE WITNESS: That it correct, I -- 22 I -- as I keep stating the data, the log file 23 that was used in this analysis was the log 24 file for January 2011. The sample was drawn .7.11.16,4nu Marn,AWM Love Court Reporting, Inc. NLL Waterman, Page 90 1 from file downloads in January of 2011 and 2 therefore the quantitative inferences pertain 3 to January 2011. 4 BY MR. LEIBNITZ: 5 Q. To be clear, you state no opinion as 6 to the level of infringement using Hotfile's 7 technology since the filing of the Complaint in this 8 case in February 2011, right? 9 A. By virtue of the data that I have 10 collected or the log file that I have had access to, 11 the January log file, the statements that I made 12 pertain up to the end of January. And as I said, in 13 general if there is a watershed type event, and the 14 bringing of the case would be such a type of 15 watershed type event, then I would acknowledge that 16 human behavior can change. Exactly in which way it 17 would change, I mean I wouldn't speculate, but I'm 18 confident that people do change their behavior. 19 And if I felt that behavior, that I 20 had no reason to believe that fa -- the ultimate 21 behavior had not changed, then I feel that.my study 22 did give some sense of what was likely to be 23 happening. And so I would be more comfortable going 24 retrospectively behind January 2010 in just, you 1111,611D ,M. Love Court Reporting, Inc. Waterman, Page 91 1 know, saying that the -- what I learned in January 2 of 2011, sorry, 2011, is very likely to be more 3 representative of what happened in December 2010 or 4 November, points proximate in time, because I have 5 no reason to believe the world changed dramatically. 6 But given the case being brought in 7 February I think that, I don't know, but it's 8 possible the world changed quite dramatically in 9 terms of the Hotfile site, and if the world changed 10 dramatically in terms of the Hotfile site, then what 11 we learned in January might not be informative of 12 what happened in February, March, April and so on. 13 Q. Indeed you offer no numerical level 14 of infringement postulated to occur on the website 15 after January of 2011 in your report. 16 17 18 A. That is correct. My report does not make statements post January 2011. Q. All right. So, Dr. Waterman, what 19 countermeasures against copyright infringement has 20 Hotfile taken since its inception? 21 22 23 24 MR. POZZA: Objection. Calls for speculation and vague. THE WITNESS: I'm not intricately aware of the intricacies of the steps that Love Court Reporting, Inc. Waterman, Page 92 1 Hotfile specifically may have taken. I 2 understand some of the steps because, as I 3 alluded to before, I'm aware of the ecosystem 4 and through the other cases that I've worked 5 on. And so one of the measures, and 6 7 whether or not Hotfile took it I simply don't 8 know, is the concept of the takedown notice, 9 where a rights holder notes that their 10 material is being shared in an unauthorized 11 fashion and sends a notice. What happened at 12 that point, I do not know. 13 BY MR. LEIBNITZ: 14 Q. 15 16 takedown procedure? A. I do not know. MR. POZZA: Objection. It calls for 17 18 When did Hotfile implement its speculation and is vague. THE WITNESS: I do not know. 19 20 BY MR. LEIBNITZ: 21 Q. 22 What other measures against copyright infringement did Hotfile take since its inception? 23 MR. POZZA: Same objection. 24 THE WITNESS: I am simply not aware Love Court Reporting, Inc. A Waterman, Page 93 1 whether there were or not measures taken. 2 BY MR. LEIBNITZ: 3 Q. As you sit here today you are unaware 4 of any measures that Hotfile has taken to fight 5 copyright infringement. 6 MR. POZZA: Objection. This is vague 7 and it calls for speculation and is outside 8 the scope of expert testimony. 9 10 MR. LEIBNITZ: Correct. THE WITNESS: There are many aspects 11 of the Hotfile site that I am not aware of or 12 the Hotfile business because that's not my 13 role within this case. My role within this 14 case is to provide an opinion as to, in the 15 month of January of 2011, the extent of or 16 the proportion of files that were associated 17 with infringing content. 18 So it is -- I will acknowledge there 19 is probably a million things about Hotfile as 20 a business that I don't know, but I don't 21 know them because I felt that for the point 22 or the purposes of me being retained in this 23 case those weren't relevant to the decisions 24 that I came up with. LIT Love Court Reporting, Inc. Waterman, Page 94 1 BY MR. LEIBNITZ: 2 Q. So you didn't find it useful to know 3 in forming your opinion in this case what 4 countermeasures Hotfile has taken against copyright 5 infringement. MR. POZZA: Objection. Vague and 6 7 misstates the testimony. 8 THE WITNESS: I would agree that it 9 is unnecessary for me to know what business 10 rules, we might call them business rules, 11 Hotfile implements because my goal was to 12 understand the activity that actually 13 happened on the site and hence a log file 14 which records the activity on the site is the 15 appropriate source of information for me to 16 make my decision. 17 As I say, there are many other 18 features of any business that are happening 19 that I would not be aware of, and typically I 20 don't need to be aware of them because they 21 don't pertain to the particular, in this 22 case, study or quantification that I'm trying 23 to make. 24 BY MR. LEIBNITZ: 2 Love Court Reporting, Inc. Waterman, Page 95 1 Q. Have you now exhaustively stated your 2 awareness of all the countermeasures Hotfile has 3 taken against copyright infringement? 4 MR. POZZA: Objection. Vague. 5 THE WITNESS: As I say, I'm not 6 familiar with what I've term the business 7 rules that Hotfile has implemented, I'm just 8 simply not familiar with them. 9 BY MR. LEIBNITZ: 10 Q. When did Hotfile first begin 11 permitting content owners to seek the takedown of 12 allegedly infringing material? 13 MR. POZZA: Objection. Calls for 14 speculation, outside of the scope of the 15 testimony and is vague. 16 THE WITNESS: As I've said, these 17 sorts of facts weren't necessary for the 18 study, to implement the study that I was 19 ā€¢ asked to do and so I never -- I would not ask 20 that question because I did not feel that it 21 would be relevant to inform my study. 22 BY MR. LEIBNITZ: 23 Q. 24 And you don't know as you sit here today? Love Court Reporting, Inc. Waterman, Page 96 1 MR. POZZA: Same objections. 2 THE WITNESS: As I said, I think it's 3 unnecessary for the validity of my study to 4 know that. 5 BY MR. LEIBNITZ: 6 Q. 7 as you sit here today, Doctor? 8 9 Do you know it one way or the other MR. POZZA: Objection. Vague. I'm not sure what "it" is. 10 BY MR. LEIBNITZ: 11 Q. Dr. Waterman, do you know as you sit 12 here today when Hotfile first began permitting 13 content owners to seek the takedown of allegedly 14 infringing material? MR. POZZA: Same objection. It's 15 16 been asked and answered. THE WITNESS: I'm -- I am not aware 17 18 of the date on which -- if such a -- you 19 know, how if such a rule is formulated or 20 followed. 21 BY MR. LEIBNITZ: 22 Q. When did Hotfile first start 23 preventing users terminated for alleged infringement 24 from signing back up to Hotfile using the same 1.1a4MTNOWas1111,16 ubealdt. Love Court Reporting, Inc. I Waterman, Page 97 1 e-mail address? 2 MR. POZZA: Objection. Calls for 3 speculation, lacks foundation, outside of 4 expert testimony and vague. THE WITNESS: To my understanding 5 6 this is a very similar question to the 7 previous one that you've asked and so my 8 answer is going to be similar. There are 9 many, many aspects of the Hotfile site, its 10 business rule, its methodologies that I am 11 not aware of, and I'm not aware of them 12 because I didn't feel I needed to know them 13 in order to perform the study that I was 14 asked to provide. 15 BY MR. LEIBNITZ: 16 Q. As you sit here today you do not know 17 when Hotfile first started preventing users 18 terminated for alleged infringement from signing 19 back up to Hotfile using the same e-mail address, 20 correct? 21 22 23 24 MR. POZZA: Same objection. Asked and answered. THE WITNESS: Again, any question about specific business rules that Hotfile Nat Love Court Reporting, Inc. Waterman, Page 98 1 might have implemented I am not aware of 2 the -- of how they implement or what the 3 business rules were or how they implemented 4 them because I was asked to analyze the log 5 file and those business rules don't pertain 6 to the activity that I was asked to analyze. 7 BY MR. LEIBNITZ: 8 Q. So you don't know when Hotfile first 9 started preventing users from signing back up to 10 Hotfile using the same e-mail address after being 11 accused of alleged infringement. 12 MR. POZZA: Same objection, it's 13 assuming facts not in evidence and it's asked 14 and answered. 15 THE WITNESS: I agree I don't know 16 and I believe it's not a necessary fact to 17 inform my study. 18 BY MR. LEIBNITZ: 19 Q. 20 21 22 23 24 Could it have been a month before January 2011? MR. POZZA: Objection. Calls for speculation and vague. THE WITNESS: I am unaware of the date -- that if such a rule was put into - atrallglb.rnes, Love Court Reporting, Inc. 61,11.61.41 Waterman, Page 99 1 place and when it was put into place. 2 BY MR. LEIBNITZ: 3 Q. When did Hotfile implement hash 4 fingerprinting to prevent the file once taken down 5 for alleged infringement from being uploaded again? 6 MR. POZZA: Same set of objections. 7 This calls for speculation and lacks 8 foundation, assumes facts that are not in 9 evidence and is outside the scope of the 10 expert testimony and is vague. 11 THE WITNESS: Again, this is a 12 business rules type question. And as I've 13 answered before, I'm not aware of the 14 specific business rules that Hotfile 15 implemented, and therefore, in any particular 16 case I would be unaware of a date of starting 17 or stopping. 18 BY MR. LEIBNITZ: 19 Q. 20 21 22 When did Hotfile hire a DMCA agent? MR. POZZA: Same set of objections. Speculative. THE WITNESS: Again, this is another 23 question about their business operations, and 24 as a statistician who was asked to form an Love Court Reporting, Inc. Waterman, Page 100 1 opinion of the infringement level of activity 2 on a site, on the Hotfile site, knowing when 3 they hired such an agent would not be one of 4 the pieces of information that would be 5 required for me to formulate my study. 6 So I was not aware of such a hiring 7 and if I had been aware of such a hiring it 8 would not have changed the way that my study 9 would have been conducted. 10 BY MR. LEIBNITZ: 11 Q. 12 13 When did Hotfile announce its DMCA agent on its website? MR. POZZA: Same objections. Calls 14 for speculation, lacks foundation, assumes 15 facts not in evidence, and is outside the 16 scope of expert testimony. 17 THE WITNESS: I'm going to make the 18 same response to that, that is another 19 question about the business operations of 20 Hotfile. I am not familiar with those 21 business operations, I am not familiar with 22 the initiation dates of various of these 23 business operations or business rules, and so 24 whether the event happened I don't know one Mh4A1.111 Love Court Reporting, Inc. kka.11,10 Waterman, 1 way or another, and given that I would not 2 know the date if it did happen. 3 BY MR. LEIBNITZ: 4 Q. 5 When did Hotfile implement a strikes-based repeat infringer policy? 6 MR. POZZA: Same set of objections. 7 It calls for speculation, outside the scope 8 of expert testimony, and is also vague as to 9 what a strikes based repeat offender policy 10 11 is. THE WITNESS: I'm going to have to 12 provide the same answer as I provided before, 13 which was as I'm not aware of the operational 14 aspects in terms of those business 15 operations, business rules that Hotfile 16 initiated, I'm not aware of whether such a 17 program happened or the initiation or ending 18 date of such a program. 19 And the reason why these business 20 rules are not -- you know, I'm not overly 21 concerned with them from the point of view of 22 my study, was that my study confined itself 23 to what happened in January of 2011. And I 24 have a log file that actually provides a Love Court Reporting, Inc. Waterman, Page 102 1 complete record of, and we're talking the 2 recorded downloads, and my findings pertain 3 to the information that I have. 4 BY MR. LEIBNITZ: 5 Q. We only have one minute left, sir. 6 When did Hotfile implement vocal fingerprinting 7 endorsed by plaintiffs collectively here as ensuring 8 copyright compliance? MR. POZZA: Object to calls for 9 10 speculation, lacks foundation, it's compound, 11 assumes of facts not in evidence, outside the 12 scope of expert testimony and is vague. THE WITNESS: And I will answer the 13 14 same as I did before, which was because I am 15 not familiar with the business rules which 16 Hotfile implemented with regard to 17 infringement activities, I would not know 18 whether such an event took place and indeed 19 if it took place at the time at which it took 20 place. 21 And why was I -- why am I comfortable 22 sitting here not knowing that information? 23 Because I don't believe that it is relevant 24 to the analyses that I report. -1150.011.ABlif 6 111... Love Court Reporting, Inc. Waterman, Page 103 1 THE VIDEOGRAPHER: We are now going 2 off the record. This completes Tape Number 3 1. The time is 11:53. 4 5 6 (Whereupon, a discussion was held off the record.) 7 8 9 THE VIDEOGRAPHER: We are now on the record. The time is 11:56. 10 BY MR. LEIBNITZ: 11 Q. Dr. Waterman, can you now exclude the 12 possibility that immediately prior to January 2011 13 Hotfile took actions impacting the level of 14 infringement through its technology? 15 16 17 MR. POZZA: Objection. Calls for speculation and is vague. THE WITNESS: That seems to be a 18 summary question of all of the business rules 19 that you have been talking about that they 20 have -- might have addressed infringement 21 activity, and as I said before I'm not aware 22 of the complete set of business rules. I'm 23 not of aware of when they were initiated, and 24 so what Hotfile did as a business in Love Court Reporting, Inc. Waterman, 1 December 2010 I'm simply not in a position to 2 have an opinion on. 3 BY MR. LEIBNITZ: 4 Q. So you cannot testify as you sit here 5 today that there was a non-zero level of copyright 6 infringement, say, in the first 24 hours of 7 Hotfile's existence? MR. POZZA: Objection. Calls for 8 9 speculation and is vague. THE WITNESS: I mean, I think I've 10 11 repeated many times that my study draws data 12 from January 2011, and the basic statistical 13 paradigm is that we have a population, in 14 this case it's the log file associated with 15 downloads of files from Hotfile. We draw a 16 sample from that population, and my 17 inferences are related to that population, 18 January 2011. And so those are what my -- the 19 20 numbers that I've provided my report relate 21 to directly. That was the scope of those 22 specific findings. 23 BY MR. LEIBNITZ: 24 Q. So you don't purport to opine about Love Court Reporting, Inc. Waterman, Page 105 1 the level of infringement at Hotfile prior to 2 January 2011? 3 4 MR. POZZA: Objection. Asked and answered. 5 THE WITNESS: I would say that the 6 statements that I make about January 2011, 7 and I will stand and defend to the end 8 because they are based purely on the 9 scientific method of drawing a sample from a 10 population, etcetera. 11 To the extent that they inform us as 12 to what happened prior to 2000 -- January of 13 2011 to me is the extent to which there might 14 have been watershed events prior to that 15 process that changed the entire nature of the 16 site and whether or not such events occurred. 17 Now, if somebody told me that no such 18 events occurred, that the belief was that 19 the -- that there was stability in the nature 20 of the site, then I would feel quite 21 comfortable that the results that I had for 22 January told me something about what was 23 going on prior to that month, but I wouldn't 24 put the same, you know -- I wouldn't put them Love Court Reporting, Inc. Waterman, Page 106 1 forward as forceful -- forcefully as I will 2 about what's happening in January. 3 BY MR. LEIBNITZ: 4 Q. 5 Because they are not based on the scientific method, correct? A. 6 Because they are not based -- I mean, will say things very forcefully about January 8 because I have a sample from January. I will say 9 whenever I make something, a statement outside that 10 population one has to acknowledge that it's -- I -- 11 and I haven't done that within my report, I hasten 12 to make that point that that's not my -- my report 13 is about January 2011. But, you know, it is the 14 nature of many activities when we talk about the 15 scientific method. We develop it in the classroom 16 or the laboratory, but we get to apply it in the 17 world. 18 And I -- so I mean, I'm picking up on 19 the word "the scientific method." I mean, often in 20 science we actually make statements and conclusions 21 outside our population. Maybe we not -- we don't 22 want to ideally but we do, so the example that I can 23 always think of are drug trials. In order to find 24 out whether a drug is useful or not we tend to do a Love Court Reporting, Inc. Waterman, Page 107 1 trial. The trial has what's called informed 2 consent. Not everybody consents to being in a 3 trial, and so you might make the argument that those 4 people who weren't in the trial, that those in the 5 trial are not a representative group of all people, 6 but we only found out how the drug was working on 7 the group who chose to be in the trial, not those 8 outside, yet we still feel comfortable in making 9 prescription decisions for the individual who walks 10 into the doctor's office with high blood pressure. 11 You know, and so though we might like 12 from a scientific point of view to say, no, we don't 13 have informed consent, it causes potentially some 14 bias in our findings we -- we live with it. And in 15 that sense, you know, I -- I would acknowledge that 16 I am most secure in my statements about the 17 population and that's what I will defended till the 18 cows come home, you see. And outside 19 outside of that population I would just want to have 20 a lot more information about how the world was 21 working outside that population. 22 23 Q. I am -- Do you have that information sufficient to back-cast from January of 2011 now? MR. POZZA: Objection as to form. 24 Id Love Court Reporting, Inc. Waterman, Page 108 1 It's vague. 2 THE WITNESS: To do -- my -- the 3 objective of my study was not to back-cast. 4 I -- I -- you know, that was not the point of 5 it so I haven't tried to do that up to now. 6 And because I haven't tried to do it I 7 haven't tried to pull that information that 8 might help me feel that that was a 9 comfortable thing to do. 10 BY MR. LEIBNITZ: 11 Q. So you offer no opinion as you sit 12 here today, Dr. Waterman, about whether there were 13 non-zero levels of infringement at Hotfile or using 14 Hotfile's technology in the first two years of its 15 existence. 16 17 MR. POZZA: Objection. It's vague and misstates the witness' testimony. 18 THE WITNESS: My study does not 19 pertain to or relate to that specific time 20 period. It pertains to January 2011. 21 BY MR. LEIBNITZ: 22 Q. So you don't purport to state or 23 opine that Hotfile had a non-zero level of copyright 24 infringement through the use of its technology at Love Court Reporting, Inc. Waterman, Page 109 1 2 3 4 any time prior to January 2011; is that fair? MR. POZZA: Objection. Misstates the testimony and it's been asked and answered. THE WITNESS: As I said, my study 5 does not pertain to that period. And it may 6 have been a hundred percent infringement for 7 all I know. It may have been 50. It may 8 have been zero. 9 My study was designed and it's very 10 explicitly stated in the report that as to -- 11 the log file was January 2011 and I'm -- my 12 conclusions are related to what was going on 13 in January of 2011. 14 15 MR. LEIBNITZ: Thank you, sir. Let's take a break. 16 THE WITNESS: Okay. 17 THE VIDEOGRAPHER: We are now going 18 off the record. The time is 12:03. - - - 19 20 21 22 23 24 (Whereupon, there was a recess in the proceedings.) - - THE VIDEOGRAPHER: We are now on the record. The time is 12:59. Love Court Reporting, Inc. Waterman, Page 294 1 Password protected could have content 2 in it but you simply can't access through 3 because one doesn't have the password but one 4 could have other meta-information associated 5 with it that would help make a determine of 6 infringement status, so I don't see the two 7 as equivalent. 8 BY MR. LEIBNITZ: 9 Q. Are there other opinions that you are 10 going to render in this case that you have not 11 stated today? 12 13 A. At this stage I have no preparation or other opinions to make. 14 Q. Have you conducted a study of the 15 percentage of infringement files unloaded to Hotfile 16 but not downloaded? I think you answered that 17 before. 18 A. I have not conducted any other 19 studies of the Hotfile site apart from this 20 Dailydownloads study for January 2011. 21 Q. Are you aware of the number of 22 illegal files that were excluded or replaced in your 23 study? 24 1 A. I don't have the exact number but it Love Court Reporting, Inc. Waterman, Page 295 1 2 3 4 5 6 7 was a small number, not material to the conclusions. Q. expect to undertake before trial? A. At po -- at this point in time I have no expectation of initia -- additional analyses. Q. Is there anything that you'd like to consider further but have not? 8 9 Are there further inquiries that you MR. POZZA: Object to the question as vague, as ambiguous. THE WITNESS: With regard to the 10 11 opinion that I've presented here today and in 12 my report I have all the materials that I 13 feel are required to give an accurate 14 description of the infringement activity of 15 Hotfile in January of 2011. 16 BY MR. LEIBNITZ: 17 Q. 18 19 20 further? A. At this stage I have no further requests on my time. 21 22 Have you been asked to do anything MR. LEIBNITZ: Okay. Let's take a break. 23 THE VIDEOGRAPHER: We are now going 24 off the record. This completes Tape Number .46111,1 Love Court Reporting, Inc.

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