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

Filing 232

RESPONSE in Opposition re 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 f >PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' REBUTTAL REPORT OF DR. RICHARD WATERMAN< filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Stetson, Karen)

EXHIBIT 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF FLORIDA

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CASE NO. 11-20427-WILLIAMS

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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.,

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10

Plaintiffs,

11
v.
12
13

HOTFILE CORP., ANTON TITOV
and DOES 1-10,

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Defendants.

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Deposition of JAMES BOYLE

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(Taken by the Plaintiffs)

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Raleigh, North Carolina

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December 21, 2011

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22
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Reported by:

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Marisa Munoz-Vourakis RMR, CRR and Notary Public

TSg Job # 44315

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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

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way were, that is to say, content that was

2

noninfringing were being indirectly compensated through

3

the affiliate program.

4

Q.

So your hypothesis, just taking the first

5

hypothesis, was it that Hotfile was being used to

6

distribute noninfringing or highly likely noninfringing

7

content at all?

8
9
10

MR. GUPTA:

Objection, that's

compound, it's vague and ambiguous.
A.

I understood my instructions to be to

11

examine the use of the Hotfile system in order to offer

12

to the court material that might be useful in the

13

court's determination of whether or not Hotfile had

14

substantial, noninfringing uses as a service, as laid

15

down in the case of the Sony case, and also to find out

16

the kind of uses in terms of its distribution of

17

noninfringing content that might be relevant to a

18

court's determination over several inducement viability

19

set forth in the Grokster case.

20

That was the general framework in which I

21

was looking at it, and thus I wanted to look at uses of

22

the Hotfile system that might illuminate both of those

23

questions.

24
25

In order to do that, I looked at the three
specific kinds of content identified here; namely, open

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source software, material licensed under creative

2

commons licenses and public domain material, to see

3

whether or not there were uses in each of these cases.

4

I would stress, however, that I was simply

5

looking for exemplary uses, that is to say, examples.

6

This was not a study which purported to exhaust either

7

all of the types of noninfringing use of the Hotfile

8

service or even all of the specific types of use

9

identified in the study, that is to say, open source

10

software, creative commons license material and public

11

domain material.

12

Q.

Did you attempt to analyze the extent to

13

which Hotfile was being used to distribute

14

noninfringing content?

15

MR. GUPTA:

16
17

Objection, that's vague

and ambiguous, calls for speculation.
A.

The word extent is a vague one.

I prefer

18

to be a little more precise.

I did look at the number

19

of downloads of the material that I looked at here, and

20

in several cases in addition, I looked at whether or

21

not that material was -- whether that material fell

22

into the most downloaded categories, the list of most

23

downloaded material on Hotfile.

24

ways in which I was examining it.

25

to the question of extent, but there are obviously

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Those were the two
Those obviously go

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MR. GUPTA:

Objection, that's vague

2

and ambiguous, calls for speculation, it's

3

outside the scope of his report.

4

A.

I have the same work product concern that

5

was mentioned earlier.

6

MR. GUPTA:

Okay.

I will say that

7

please don't answer, to the extent it would

8

divulge any work product.

9

A.

Could you repeat the question?

10

Q.

Do you have a conclusion as to how common

11

uploading of a file without any downloads of the file

12

is on Hotfile?

13

MR. GUPTA:

There's a work product

14

objection, and I'll instruct him not to

15

answer.

16
17

MR. POZZA:
Q.

Okay.

You did identify specific instances of

18

files being uploaded and never downloaded in your

19

report, correct?

20

A.

Yes.

21

Q.

And you were asked to study the use of the

22

Hotfile service to store certain types of material,

23

correct?

24

A.

Yes.

25

Q.

And --

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hypothetical.
A.

why one was asking the question.
Q.

8

Does it depend on the total number of

downloads from Hotfile overall?

6
7

It would depend very much on the facts and

MR. GUPTA:

Objection, that's vague

and it lacks foundation.
A.

I was attempting to give the court

9

information which would be useful in a determination of

10

whether or not there was substantial noninfringing uses

11

of the Hotfile service, and whether or not there were

12

uses of Hotfile which tended to militate against

13

inducement liability under the theory of Grokster.

14

Since that was the question I was attempting to answer,

15

I looked at the kinds of things that seem relevant in

16

answering that question.

17

Since the court in Sony stressed a number

18

of different factors in talking about noninfringing

19

uses, and the courts since Sony have stressed a number

20

of different factors in talking about the capabilities

21

of system for noninfringing uses, I tried to look,

22

where possible, at the types of usages of the Hotfile

23

system which seemed to fall within those categories.

24
25

So high volume here for me is -1.7 million seems to me to be a large number, and

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that's a large number of downloads of a particular

2

piece of software.

3

are acquiring this piece of software.

4

looking at that, looking at the distribution of

5

copyrighted material, looking at the incentivization of

6

creativity would say that the provision of copyrighted

7

content to 1.7 million people is a very substantial

8

use.

9

In this case, a great many people
I think a court

That would be a substantial use, regardless

10

of the total number of downloads from the Hotfile

11

service, but that was not what I was looking at.

12

Q.

So the total number of downloads does not

13

matter in determining whether or not there is what you

14

characterize a high volume of usage?

15

MR. GUPTA:

Objection, that

16

mischaracterizes the testimony.

17

It lacks foundation.

18

speculation and it's asked and answered.

19

A.

It's vague.

It calls for

I think I did answer that question

20

previously, but I shall try and answer it again

21

slightly more tersely.

22

I think there are a number of factors that

23

one would look at in terms of volume.

24

think one key feature is looking at substantial

25

noninfringing uses is to look at whether or not a

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system allows for a particular kind of creativity or

2

cultural sharing and whether or not it allows a

3

relatively large number of people to profit from that.

4

That is one and only one of many factors that one might

5

consider in considering substantial noninfringing uses.

6

If one thinks, for example, of a book or a

7

movie, and I were able to tell you that this book or

8

movie was distributed to 1.7 million people, I think I

9

would say that is a high volume.

I, as an author,

10

would be delighted were my books to be read by

11

1.7 million people.

12

this software felt that that was a high volume.

13
14
15

I imagine that the creators of

So relative to that question, I think, yes,
that is indeed a high volume.
Q.

Going down a bit, you say, and I'll just

16

read this to be precise:

17

share noninfringing software files was also a popular

18

usage of the system in relative and absolute terms.

19

Using the Hotfile system to

Do you see that?

20

A.

Yes, I do.

21

Q.

How was it a popular usage in absolute

22

terms?

23

A.

24

those files.

25

Q.

Because there were 1.7 million downloads of

And how was it a popular usage in relative

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2

terms?
A.

Because the two most commonly downloaded

3

files were files of that type, that is to say,

4

noninfringing files.

5
6

Q.
you mean?

7
8
9

When you say commonly downloaded, what do

MR. GUPTA:

Objection, calls for

speculation.
A.

The two files that were listed at the top

10

of the most downloaded files on the database as --

11

which I believe the plaintiffs also have, and that was

12

determined by Elysium Digital.

13

MR. GUPTA:

I would just like to lodge

14

and objection.

15

counsel, if you want more specifics on these

16

numbers, to actually direct the witness to

17

the different tables and other numbers in

18

the report.

19
20
21
22

A.

It may be helpful for

The details are provided in the attached

documents.
Q.

So you say the top two most downloaded

files on Hotfile were open source programs, correct?

23

A.

Yes.

24

Q.

You're looking at specific files, right?

25

A.

Yes, I am, but let me qualify that

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Q.

But given my hypothetical, would you

2

conclude that file A, that's being downloaded 10,000

3

times, reflects a more popular usage of the system than

4

the downloading of file B, that's downloaded a thousand

5

times in a day?

6
7

MR. GUPTA:
A.

Same objections.

I am happy to answer.

I would rather focus

8

on what I actually said than what I might say to a

9

hypothetical that isn't what I actually said.

10

So what I actually said was that I thought

11

it was a popular usage in that first, there were a high

12

number, 1.7 million is a high number that indicates

13

some level of popularity; and B, in terms of most

14

downloaded files, some of these examples were very high

15

on the list.

16

hypothetical is too vague for me to do the same thing

17

as I did in the study, which is to answer precisely as

18

I did here.

19

Q.

20

That's what I meant by popularity.

Your

I'm trying to get a sense of what you mean

by popularity.

21

So in looking at the download counts, you

22

essentially looked at download counts over the entire

23

life span of Hotfile, right?

24
25

MR. GUPTA:

Objection, once again,

that's vague and ambiguous.

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the scope of his report, lacks foundation,

2

and to the extent it might divulge work

3

product, I will ask the witness not to

4

answer that part of it.

5

A.

I looked at a database, which I believe

6

included downloads from the inception of Hotfile up

7

until some relatively recent point, and it was from

8

that that I obtained the numbers you see here.

9

Q.

So did you look at the rate at which a file

10

was downloaded during the period of time it was

11

actually uploaded?

12
13

MR. GUPTA:
ambiguous.

14
15

Objection, vague and

MR. POZZA:
Q.

I will ask that again.

Did you look at the rate a file was

16

downloaded during the period of time it was available

17

on Hotfile?

18
19
20

MR. GUPTA:
A.

Objection, vague again.

Could you clarify rate?

What do you mean

by rate?

21

Q.

22

over a day.

23

A.

No, I did not.

24

Q.

Do you think that would be an appropriate

25

I'll define rate as number of downloads

measure of popularity of a file?

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A F T E R N O O N

S E S S I O N

2

(On the record at 2:44 p.m.)

3

BY MR. POZZA:

4

Q.

So turning to page two of your report.

5

Paragraph nine, sub-ii, the first sentence there reads:

6

Second Hotfile's architecture is compatible with and is

7

actually being used for a wide range of activities

8

beyond the open source software context.

9

Do you see that?

10

A.

I do.

11

Q.

What is the range of activities that

12
13

Hotfile's architecture is being used for?
A.

The specific range of activities that I

14

identified here was sharing licit content, and the

15

particular examples I picked were public domain works

16

and creative commons material, and there more broadly

17

the compatible with portion of that sentence means that

18

Hotfile's architecture allows it to be used for licit

19

purposes beyond those listed here, which as I note,

20

this is not an exhaustive list.

21

of licit uses, which Hotfile is compatible with, which

22

I did not investigate in this report.

23

Q.

There are other types

So for this report, the licit uses are the

24

distribution of public domain materials and creative

25

commons materials?

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In one case, for example, and I use this

2

only for illustrative purposes, they found a

3

distribution, a hash verified distribution of

4

OpenOffice, which had a file name that made it appear

5

to be a film.

6

Q.

Right.

7

A.

They told me of examples like that, but it

8

was -- that was the extent of it, because I was focused

9

on I want something which is licit, and I'm focused

10

only on that.

11

Q.

12

the misnamed file there were?

13

MR. GUPTA:

14
15

Did you investigate how many downloads of

Objection, lacks

foundation and is vague.
A.

No, as I'll say again, my goal was to study

16

illustrative, noninfringing uses.

17

looking for noninfringing uses, and I wanted to find

18

out if those noninfringing uses were ones which were

19

significant, either numerically or in terms of the

20

types of creativity they enabled.

21

trying to do.

22

other kinds of methodologies aimed at other different

23

goals.

24
25

Q.

I was specifically

That's what I was

That's what my study did.

I did not use

So if a copy of OpenOffice is misnamed to

be a pornographic film, such that would you infer that

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common uses of the Hotfile system.

2

Do you see that?

3

A.

I do.

4

Q.

I think we talked about the raw numbers.

5

In terms of the most common uses of the Hotfile system,

6

what do you mean there?

7

A.

I mean the information about the fact that

8

files such as iREB and sn0wbreeze and to a less extent

9

JDownloader, were among the most commonly shared files

10

on Hotfile, that their number of downloads was high in

11

proportion to, excuse me, was high in rank if you

12

looked at the most downloaded.

13

Q.

So are you making a statement about

14

different kinds of uses of the Hotfile system in

15

general?

16
17

MR. GUPTA:
A.

Objection, it's vague.

So I'm trying to give the court information

18

relevant to whether or not there are substantial,

19

noninfringing uses of Hotfile and also relevant to

20

whether or not Hotfile would be guilty of a Grokster

21

style inducement liability.

22

it appears that if you find that the one and two most

23

downloaded files on the system are actually licitly

24

shared, that seems important, that seems significant.

25

The fact that those files are examples of

To me, as a legal scholar,

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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

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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.

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can be used for this.

2

was being very careful only to focus on those, is then

3

go out specifically to investigate it in more depth in

4

terms of numbers or what have you.

5

Q.

But what I didn't do, because I

Did you receive any data bearing on the use

6

of Hotfile for storage of content solely for personal

7

retrieval or backup in the course of preparing this

8

report?

9

A.

To my recollection, no, because I

10

specifically was directing Elysium Digital to give me

11

information about these three categories, and so the

12

information they gave me was entirely related to that,

13

and so that was the information that I saw.

14
15
16

MR. GUPTA:

Objection, vague as to

solely for personal retrieval or backup.
MR. POZZA:

Counsel, is it your

17

position that to the extent I ask these

18

questions generally and not limited to the

19

preparation of this report, that you have a

20

work product objection?

21

MR. GUPTA:

We have a work product

22

objection to the extent counsel seeks

23

information reflecting the thought process

24

Mr. Boyle is going through in connection

25

with rebuttal report that he's preparing,

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and so we would ask that all questioning be

2

limited to the current expert report.

3
4
5
6

BY MR. POZZA:
Q.

Professor Boyle, do you know what a link

site is?
A.

A link site?

7

MR. GUPTA:

Objection, vague, assumes

8

facts not in evidence.

9

A.

I'm not familiar with that term.

10

Q.

Have you ever been to a site that indexes

11

Hotfile content?

12
13
14

MR. GUPTA:

Objection, vague and

ambiguous.
A.

I've been to Google, and I've looked on the

15

Hotfile site, but that doesn't list it.

16

So I've been

to Google, and that's the only one.

17

Q.

That's it, just Google?

18

A.

Google.

19

Q.

In the course of Googling content on

20

Hotfile, did you ever -- were you ever pointed to

21

another site on which a Hotfile link was listed?

22
23

MR. GUPTA:
A.

Objection, vague.

Yes, I was directed to the IHateSnow

24

developer page on which a link to Hotfile was created,

25

but my search, since I was interested in Hotfile, I

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