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)

EXHIBIT “C”

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
[phone]

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,
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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,
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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.

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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.

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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

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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,
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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,
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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.

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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

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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,
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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.

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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.

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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 •

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,
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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.

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Waterman,
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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

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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,

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61,11.61.41

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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

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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

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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...

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Waterman,
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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

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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

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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

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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

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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

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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.

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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

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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.