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

Filing 238

REPLY to Response to Motion 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 Reply Memorandum of Defendants Hotfile Corporation and Anton Titov In Support of Motion to Strike Plaintiffs' Putative "Rebuttal" Report of Dr. Richard Waterman filed by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P)(Munn, Janet)

Exhibit L

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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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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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Plaintiffs,

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v.
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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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23, Reported by:
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Marisa Munoz-Vourakis RMR, CRR and Notary Public

TSg Job # 44315

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that you asked, because it's an example - of changing the

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line between the realm of the protected and the realm

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of the .unprotected in the hope of generating more

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innovation.

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•Q.

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In the course of your research, do you have

any experience designing statistical studies?
MR. GUPTA: •Objection, vague and
ambiguous.

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A.

No, I do not.

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Q.

Are you trained in statistics?

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A.

No, I am not

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Q.

In the course of your research, do you have

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any experience analyzing large data sets?

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MR. GUPTA: Objection, vague and

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ambiguous.

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A.

No, I would say that I do not have the

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experience as a statistician analyzing large data sets.

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As an academic, I have to consider large amounts of

19 • .data all of the time and try and draw conclusions from
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it, so it depends exactly what you mean by large data

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sets.

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Q.

In your research, do you have any

experience analyzing on line networks?
MR. GUPTA: Objection / vague and
.
ambiguous.

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businesses in a variety of ways, and so it is hard to

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characterize them as merely one thing precisely because

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users are using them for different purposes.

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5

Q.

Do you know how many files have been

uploaded to Hotfile?

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MR. GUPTA: Objection, vague and

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ambiguous, calls for speculation. It's

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outside the scope of his report.

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A.

No, I do not.

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Q.

Do you know how many total downloads of

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files there have been for Hotfile?

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MR. GUPTA: Same objection.

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A.

No; I do not.

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Q.

Are you familiar with a report in this

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litigation by Professor Richard Waterman?

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A.

Yes, I am..

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Q.

Have you reviewed it?

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A.

Yes, I have.

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Are you aware of his conclusions?

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A.

Yes, I am.

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Q.

Have you been asked to offer an opinion on

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his conclusions?
MR. GUPTA: Objection,. seeks work

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product. I think that that's covered by

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Rule 26,. and you'll have an answer soon

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2

A.

No, I did not. I was asked to look, at

examples of noninfringing uses.

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In addition, I am not a statistician, as I

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made clear on paragraph seven. This does not purport

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to be a representative statistical sample.

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Q.

Getting to the summary of opinions,

paragraph nine, let's start with conclusion one, little.
i, I .guess. I'll just read it: First, there was a
high volume of usage of the Hotfile system•for
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activities that were either clearly noninfringing or

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highly likely to be noninfringing.

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Do you see that?

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A.

I d

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Q.

What do you mean 'by a high volume of usage?.

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A.

I mean that there was a large number of

16 • downloads of material of that type.
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Q.

What is a large number of downloads?

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A.

Are you asking me in philosophical sense.?

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Q.

How would you quantify what a large number

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of downloads would be?
A.

I found there were 1.7 million downloads.

That seemed to be a high number to me.
If it was 10,000 downloads, would that be a

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Q.

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high number?

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MR. GUPTA: . Objection, incomplete

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hypothetical.
A

It would depend. very much on the facts and

why one was asking the question.
Q.

Does it depend on the total number of

downloads from Hotfile overall?
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 determinatibn of
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whether or not there was substantial noninfringing uses

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of the Hotfile service, and whether or not there were

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uses of Hotfile which tended to militate•against.

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inducement liability under the theory of Grokster.

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Since that was the question I was attempting to answer,

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I looked at the kinds of things that seem relevant in

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answering that question.

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Since the court in Sony stressed a number

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of diffetent factors in talking about noninfringing

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uses, and the courts since Sony have stressed a number.

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of different factors in talking about the capabilities

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of system for noninfringing uses, I tried to look,

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where possible, at the types of usages of the Hotfile

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system which seemed to fall within those categories.

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So high volume here for me. is

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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
piece of software. In this case, a great many people
are acquiring this piece. of software. I think a court
looking at that, looking at the distribution of
copyrighted material, looking at the incentivization of

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creativity would say that the provision of copyrighted

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content to 1.7 million people is a very substantial
use.
That would be a substantial use, regardless

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of the total number of downloads from the Hotfile

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

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Q.

So the total number of downloads does not

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matter in determining whether or not there is what you

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characterize . a high volume of usage?

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MR. GUPTA: Objection, that

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mischaracterizes the testimony. It's vague.

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It lacks foundation. It calls for

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speculation and it's asked and answered.

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A.

I think I did answer that question

previously, but I shall try and answer it again

21 • slightly more tersely.
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I think there are a number of factors that

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one would look at in terms of volume. In this case, I

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think one key feature is looking at substantial

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noninfringing uses is to look at whether or not a

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system allows for a particular kind of creativity or

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cultural sharing and whether or not it allows a

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relatively large number of people to profit from that.

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

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consider in considering substantial noninfringing uses.

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

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

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movie was distributed to 1.7 million people, I think I

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would say that is a high volume. I, as an author,

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would be delighted were my books to be read by

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1.7 million people. I imagine that the creators of

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this software felt that that was a high volume.

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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

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read this to be precise: Using the Hotfile system to

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share noninfringing software files was also a popular

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usage of the system in relative and absolute terms.

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Do you see that?

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A.

Yes, I do.

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Q.

How was it a popular usage in absolute

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terms?

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A.

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those files.

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Q.

Because there were 1.7 million downloads of

And how was it a popular usage in relative

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terms?
A.

Because the two most commonly downloaded

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

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noninfringing files.

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When you say commonly downloaded, what do

Q.

you mean?
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MR. GUPTA: Objection, calls for
speculation.
A.

The two files that were listed at the top

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of the most downloaded files on the database as --

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which I believe the plaintiffs also have, and that was

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determined by Elysium Digital.

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MR. GUPTA: I would just like to lodge

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and objection. It may be helpful for

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counsel, if you want more specifics on theSe

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numbers, to actually direct the witness to

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the different tables and other numbers in

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the report.

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A.

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?

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A.

Yes.

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Q.

You're looking at specific files, right?

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A.

Yes, I am, but let me qualify that

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CERTIFICATE

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I, Marisa Munoz-Vourakis, RMR, CRR and Notary Public,

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the officer before whom the foregoing proceeding was

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conducted, do hereby certify that the witness(es) whose

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testimony appears in the foregoing proceeding were duly

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sworn by me; that the testimony of said witness(es) were

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taken by me to the best of my ability and thereafter

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transcribed under my supervision; and that the foregoing

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pages, inclusive, constitute a true and accurate

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transcription of the testimony of the witness(es).

I

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do further certify that I am neither counsel for,

related to, nor employed by any of the parties to this
action in which this proceeding was conducted, and

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further, that I am not a relative or employee of any

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attorney or counsel employed by the parties thereof, nor

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financially or otherwise interested in the outcome of the

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action.

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IN WITNESS WHEREOF, I have hereunto subscribed my name

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this 27th of December, 2011.

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MARISA MUNOZ-VOURAKIS
Notary #20032900127

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