Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
320
NOTICE by Hotfile Corp. re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION (Attachments: # 1 Exhibit A, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Errata, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Munn, Janet)
EXHIBIT 4
Page 1
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UNITED STATES DISTRICT COURT
2
SOUTHERN DISTRICT OF FLORIDA
3
CASE NO. 11-20427-WILLIAMS
4
5
6
7
8
DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES
INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT
INC.,
9
10
Plaintiffs,
11
v.
12
13
HOTFILE CORP., ANTON TITOV
and DOES 1-10,
14
Defendants.
)
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15
16
17
Deposition of JAMES BOYLE
18
(Taken by the Plaintiffs)
19
Raleigh, North Carolina
20
December 21, 2011
21
22
23
Reported by:
24
Marisa Munoz-Vourakis RMR, CRR and Notary Public
TSg Job # 44315
25
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APPEARANCE OF COUNSEL:
2
For the Plaintiffs:
3
DUANE POZZA, ESQ.
4
Jenner & Block
5
1099 New York Avenue, NW, Suite 900
6
Washington, DC 20001
7
8
9
10
For the Defendants:
11
DEEPAK GUPTA, ESQ.
12
Farella Braun & Martel
13
Russ Building
14
235 Montgomery Street
15
San Francisco, CA 94104
16
17
18
19
Deposition of JAMES BOYLE, taken by the
20
Plaintiffs, at Office Suites Plus, 3737 Glenwood
21
Avenue, Suite 100, Raleigh, North Carolina, on the 21st
22
day of December, 2011 at 11:04 a.m., before Marisa
23
Munoz-Vourakis, Registered Merit Reporter, Certified
24
Realtime Reporter and Notary Public.
25
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2
3
BY MR. POZZA:
Q.
Are you aware of whether all documents in
response to topic number eight have been produced?
4
5
MR. GUPTA:
Objection, that's vague
and ambiguous and it lacks foundation.
6
A.
Yes, I believe they have.
7
Q.
Are you aware of whether all documents in
8
response to topic number nine have been produced?
9
MR. GUPTA:
Objection.
Same
10
objection, once again it lacks foundation
11
and it's vague and ambiguous, to the extent
12
it's being formulated specifically in the
13
passive voice.
14
15
A.
disclosed.
16
17
Yes, I believe those documents have been
MR. POZZA:
I'd like to mark Exhibit
3.
18
(The document referred to was marked
19
Plaintiff's Boyle Exhibit Number 3
20
for
identification.)
21
Q.
Are you familiar with this document?
22
A.
Assuming that this is an unmodified version
23
24
25
of my expert report, yes, I am.
Q.
I'll represent that it is.
What is this document?
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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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not in evidence and it's vague and
2
ambiguous.
3
A.
The list of noninfringing uses that I
4
considered in this report were free and open source
5
software, cultural material made available under
6
licenses, such as creative commons licenses and public
7
domain material.
8
9
Q.
And did you explore the distribution of
those three different kinds of materials?
10
11
MR. GUPTA:
Objection, that's vague
and ambiguous.
12
A.
Could you clarify the question, please?
13
Q.
The original question was to list examples
14
of the uses of the Hotfile system you studied.
15
question is, did you explore the distribution of those
16
three different kinds of materials as opposed to say
17
the storage?
18
MR. GUPTA:
So my
Objection, once again,
19
that assumes facts not in evidence, calls
20
for speculation and it's vague.
21
A.
I would say that with some of the examples
22
that I was looking at, particularly open source
23
software, it appeared that competitors were uploading
24
the material or people were uploading the material,
25
which were open source licenses, and then it was being
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downloaded by many, many others.
2
an example of distribution.
3
That would seem to be
Some of the other kinds of uses, for
4
example, some of the public domain material consistent
5
either with distribution or with storage, and it's
6
conceivable, of course, that while the person who
7
uploaded the material to Hotfile did not mind other
8
people downloading it, that they also used it as their
9
own source of storage.
10
So, for example, were I an open source
11
developer who wished to make my software available to
12
the world, I could use Hotfile for that purpose, and I
13
had evidence that people did use it for that purpose,
14
but I might also use Hotfile as a way of storing the
15
material myself.
16
Q.
So the next sentence in the report says,
17
defendant's counsel asked me to study the use of the
18
Hotfile service to store or distribute or download the
19
types of material described above, and it goes on.
20
Do you see that?
21
A.
I do.
22
Q.
So you did study the use of the Hotfile
23
service to both store and to distribute these three
24
different types of material?
25
MR. GUPTA:
Objection,
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Q.
Turning to paragraph six, the last sentence
2
there, how did you determine whether Hotfile's
3
affiliate program compensated the open source software
4
developers for the software they write and freely
5
distribute?
6
MR. GUPTA:
7
not in evidence.
8
9
A.
Objection, assumes facts
I looked at two of the specific authors of
open source software identified in the study, that is
10
to say, JDownloader on one case and iREB and sn0wbreeze
11
on the other.
12
that material from a variety of pieces of evidence,
13
including statements on the web site from which the
14
material originated, links directly to Hotfile and so
15
on.
16
I identified those who were uploading
I then asked Elysium Digital to find out
17
whether someone who appeared to be this person or to be
18
affiliated with this person was actually a member of
19
the affiliate program.
20
cases that they did appear to be.
21
I discovered in both of those
In addition, I determined that the
22
affiliate program compensates people for files that are
23
downloaded.
24
that A, some open source developers were using Hotfile
25
to distribute their material.
From those pieces of evidence, I concluded
B, it appears that they
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were members of the affiliate program.
C, it appeared
2
that members of the affiliate program who were using
3
Hotfile to distribute their service would be
4
compensated.
5
Q.
Did you examine other ways in which those
6
developers were being compensated?
7
MR. GUPTA:
Objection, that's vague
8
and ambiguous and would call for
9
speculation.
10
A.
When you say those, do you mean the
11
specific ones to which I just referred?
12
all open source software distributors?
13
Q.
Do you mean
I mean, the specific ones to which you
14
referred, specifically the developer of sn0wbreeze and
15
iREB.
16
17
18
MR. GUPTA:
I'd like to lodge the same
objection and also add foundation.
A.
I am not aware of other methods through
19
which the developer of iREB and sn0wbreeze is
20
compensated, but I simply don't know.
21
the affiliate program.
22
23
24
25
Q.
I was looking at
Did you consider doing a representative
statistical sample of the uses of Hotfile as a whole?
MR. GUPTA:
Objection, it's vague and
ambiguous.
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Q.
Are you aware of -- do you believe that
2
there is data that would show the uses of the site by
3
those premium users?
4
MR. GUPTA:
Objection, it's vague and
5
calls for speculation.
6
A.
I am not aware of that data.
7
Q.
So sub-iii, 9 sub-iii, let's start in the
8
middle of the sentence, I'm going to ask about this
9
language:
Services, such as Hotfile, fill a gap in
10
internet's architecture by providing a convenient and
11
generic method of distributing or storing files that
12
are too large for e-mail.
13
Do you see that?
14
A.
I do.
15
Q.
What is the gap in the internet's
16
17
architecture to which you are referring?
A.
The internet, the general internet, meaning
18
the whole packet switched system, allows, obviously,
19
certain forms of communication very easily.
20
For example, e-mail communication can
21
travel over the internet, as it used to over
22
proprietary systems, as a set of packets.
23
However, while e-mail is very easy to use
24
and people can easily log on to it and use it, and many
25
other things, such as web browsing are very easy to do,
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one thing which is relatively hard to do over the
2
internet, without using a service such as Hotfile, is
3
to transfer a large file, and in fact, this has been
4
the subject of, you know, much commentary, much
5
internet humor, to the extent that that isn't an
6
oxymoron.
7
This is a difficult thing to do.
In my personal experience, it is hard to
8
collaborate with colleagues around the world if one
9
needs to transfer large files, files that are too large
10
for e-mail, which is something that I sometimes need to
11
do, and so I personally have used services like
12
YouSendIt to transfer such files.
13
When I spoke of the gap in the internet's
14
architecture, I meant that without a service of the
15
kind that Hotfile appears to provide, it would be
16
difficult, if not impossible, for those that did not
17
own their own domain name or did not have the
18
capability to upload to a web page to share those large
19
files across the internet.
20
Q.
21
22
23
What about using an FTP?
MR. GUPTA:
Objection, lacks
foundation, calls for speculation.
A.
FTP is certainly a method which experienced
24
users can use.
First of all, I think many people
25
nowadays won't even know what FTP stands for.
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stands for file transfer protocol.
2
longer have it as a standard feature.
3
evidence along that fact.
4
difficult method to do it.
5
Many browsers no
There's actually
I think people find it a
In order to transfer it, ideally, it's
6
actually much easier if you have your own server onto
7
which the files were loaded, in which case people can
8
download it using the conventional HTTP, the
9
conventional method over the web.
10
So FTP is certainly a method, but I don't
11
think it's a method that is either convenient or offers
12
all the features of services such as YouSendIt or
13
Hotfile.
14
Q.
You testified earlier, correct me if I'm
15
wrong, that you're not familiar with how Bittorrent
16
technology works?
17
A.
That is correct.
I know in the abstract.
18
I believe Bittorrent to be appear to be a file sharing
19
system, but beyond that, I know very little.
20
21
Q.
useful for distributing large files?
22
23
24
25
So do you know whether or not Bittorrent is
MR. GUPTA:
Objection, calls for
speculation.
A.
I do not.
I do not believe that Bittorrent
provides a stable URL from which authorized versions of
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on Hotfile was one of the searches?
2
A.
Yes.
3
Q.
For public domain materials, would you
4
describe this as a large number of downloads of public
5
domain content from Hotfile?
6
7
MR. GUPTA:
A.
Objection, it's vague.
Certainly not as high as the 1.7 million
8
download figure for the open source programs.
9
included this because, as I understand the test in
10
Sony, the court in Sony and subsequent courts are
11
interested both in magnitude, that is to say, the
12
number of uses, but also in types of uses, and this is
13
illustrative of a type of use.
14
I
When we think about the uses of a system in
15
order to spread cultural material, we, at least I, in
16
interpreting the Sony and Napster test, are not looking
17
only at the number, although that is clearly something
18
that we do look at, but also at what this represents.
19
In some cases, it may represent intensity of
20
preference.
21
rather than many people who like JDownloader.
22
People who really like Hamlet or Othello
And so, again, I was offering this to the
23
court for the court's assessment of this use of the
24
service to provide this kind of material.
25
I note that the Huck Finn, we had 45 hash
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verified downloads of that particular book, and I think
2
one could come to different opinions as to whether or
3
not that is an important and substantial noninfringing
4
use.
5
licit use of the service.
For myself, that seems like a viable and benign,
6
Q.
Would you describe it as substantial?
7
A.
I think that's a complex inquiry.
In --
8
the Sony court refers to many different types of
9
material.
It refers to a single film, My Man Godfrey,
10
which was in the public domain; refers to a single
11
television program, Mr. Rogers' Neighborhood, which he
12
allowed to be there; refers to a single national public
13
radio station which allowed, and it lists those in its
14
discussion of substantial noninfringing uses.
15
that suggests strongly that the court in Sony cared
16
about what we might think of as a diversity of uses, as
17
well as about -- and did not believe that the important
18
thing to focus on was what the court of appeals in Sony
19
had focused on, which was predominant use.
20
To me,
So to me, that suggests that this kind of
21
information would be relevant to the court, but the
22
court, of course, will make the final determination on
23
whether that's true or not.
24
25
Q.
So this is -- of these four works, there
are 49 verified downloads, correct?
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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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kinds of files that we've been discussing throughout
2
this deposition?
3
MR. GUPTA:
Objection, calls for
4
speculation, asked and answered, goes beyond
5
the scope of his report.
6
A.
Absolutely there are.
I mention at the
7
beginning of the report that I don't attempt to do an
8
exhaustive study.
9
So, for example, one could use Hotfile to
10
store or to share material one had generated one self;
11
large briefs, large documents.
12
share photographs.
13
access to federal government works which are in the
14
public domain for that reason.
15
for uses that would be fair use.
One could use it to
One could use it to store or get
One could also use it
16
So material which was copyright but which
17
because of the particular manner of its use, could be
18
considered fair use.
19
So I think it is debatable.
I would argue that there are cases where
20
people can use storage in order to have archival or
21
backup copies in order to space shift content that they
22
had licitly purchased, and I think a service such as
23
Hotfile could be used for that, and Hotfile clearly
24
could, as a matter of technical potential, be used for
25
that.
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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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I saw a few examples in my attempts to
2
think about and search to find examples of this.
I
3
would come upon other material, such as PowerPoints,
4
for example, which suggested the possibility of
5
storage.
6
I saw in the course of my inquiry a fair
7
amount of zero download material that seemed to meet
8
written fact, which would be consistent with basically
9
personal backup, the file would be stored and you would
10
only download it if you lost it or garbled it so that
11
it's consistent with that, it certainly doesn't prove
12
it.
13
are relevant to this report which, as I note, focuses
14
mainly on the three subjects we have been discussing;
15
namely, open source materials, public domain and
16
creative commons license material.
17
18
And those are all the pieces of information that
Q.
Does Hotfile encourage the storage of
materials?
19
MR. GUPTA:
Objection, vague and
20
ambiguous, calls for speculation as to
21
Hotfile's intent and goes beyond the expert
22
report.
23
A.
In my opinion, that is something about
24
which a court would have to look at a number of
25
factors.
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Hepatitis C?
2
A.
It was found because I was trying to look
3
for different types of material on line.
It
4
occurred -- on Hotfile.
5
might be creative commons licensed content stored that
6
was scientific in nature.
7
search that I did, but it included PowerPoint and some
8
science terms, and it turned up this file.
9
that didn't have enough information on the file to say
It occurred to me that there
I can't remember the exact
As I noted,
10
it was infringing.
I thought it was very unlikely that
11
it was infringing.
It's not the kind of content that I
12
would imagine would be, but since I couldn't determine
13
that and since it didn't fall into the category, which
14
I was considering here, I excluded it from my
15
consideration.
16
17
Q.
Do you know whether or not that link is
publicly available?
18
A.
I believe it is.
19
Q.
I guess did you find it by searching on
20
Google as opposed to searching by Hotfile's own data?
21
A.
Yes, I found it by searching on Google.
22
Q.
So that's an example of personal storage
23
but with a publicly available link that would allow
24
other people to download that?
25
MR. GUPTA:
Objection,
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mischaracterizes his testimony and seeks
2
speculation.
3
A.
As I said, I ended up excluding this,
4
because it wasn't the type of material in there, and,
5
again, because I applied this extremely conservative
6
squeaky clean analysis, I couldn't tell that that was
7
personal -- the facts were consistent with that, and
8
yes, the link was publicly available.
9
Q.
Now, in the scope of this report, have you
10
considered any data about the number of files that are
11
never -- that are uploaded but not ever downloaded from
12
Hotfile?
13
14
15
A.
In the scope of this report, I have not
considered that.
Q.
In the scope of this report, have you
16
considered the extent to which Hotfile is used to
17
upload files only for personal retrieval by the
18
uploader?
19
A.
No, in the scope of this report, I did not
20
specifically consider it as an example of files which I
21
would identify those numbers.
22
report as a potential, noninfringing use.
23
is offering the court facts about potential,
24
noninfringing uses.
25
with that.
I did list it in the
The report
I say the system is consistent
That is in my report, that is to say, it
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SIGNATURE PAGE
2
3
4
5
Digitally signed by James Boyle
DN: cn=James Boyle, o, ou,
email=boyle@law.duke.edu, c=US
Date: 2012.01.23 13:24:53 -05'00'
6
7
___________________________
8
JAMES BOYLE
9
10
11
SUBSCRIBED AND SWORN to before me this ______
12
day of _____________________________, 20__.
13
14
15
16
17
___________________________
NOTARY PUBLIC
18
19
My Commission expires:__________________________
20
21
22
23
24
25
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TRANSCRIPTION
2
3
MMV
CASE NAME:
Disney vs. Hotfile
4
5
6
WITNESS NAME:
JAMES BOYLE
7
DATE:
December 21, 2011
PAGE
LINE
8
9
READS
SHOULD READ
10
18
17
No, I have not.
I have downloaded one file.
____________________________________________________
11
6
59
signature
signal
____________________________________________________
12
illicitly
licitly
8
64
____________________________________________________
13
65
17
that in fact file
in fact that file
____________________________________________________
14
67
21
is
has
____________________________________________________
15
76
13
infringing
noninfringing
____________________________________________________
16
83
10
indecent
inducement
____________________________________________________
17
102
12
mutual
neutral
____________________________________________________
18
111
4
do it
use
____________________________________________________
19
and in addition
120
14-15
and telling
____________________________________________________ told
20
141
15
hope file
Hotfile
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155
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license material
licensed
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less
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copyrighted
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copyright
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TSG Reporting - Worldwide
877-702-9580
Page 203
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2
C E R T I F I C A T E
I, Marisa Munoz-Vourakis, RMR, CRR and Notary Public,
3
the officer before whom the foregoing proceeding was
4
conducted, do hereby certify that the witness(es) whose
5
testimony appears in the foregoing proceeding were duly
6
sworn by me; that the testimony of said witness(es) were
7
taken by me to the best of my ability and thereafter
8
transcribed under my supervision; and that the foregoing
9
pages, inclusive, constitute a true and accurate
10
11
transcription of the testimony of the witness(es).
I do further certify that I am neither counsel for,
12
related to, nor employed by any of the parties to this
13
action in which this proceeding was conducted, and
14
further, that I am not a relative or employee of any
15
attorney or counsel employed by the parties thereof, nor
16
financially or otherwise interested in the outcome of the
17
action.
18
IN WITNESS WHEREOF, I have hereunto subscribed my name
19
this 27th of December, 2011.
_______________________
MARISA MUNOZ-VOURAKIS
20
21
Notary #20032900127
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23
24
25
TSG Reporting - Worldwide
877-702-9580
Page 204
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS
DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES
INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT
INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV
and DOES 1-10,
Defendants.
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Continued Deposition of JAMES BOYLE
Volume II
(Taken by the Plaintiffs)
Raleigh, North Carolina
January 19, 2012
Reported by:
Marisa Munoz-Vourakis RMR, CRR and Notary Public
TSG Job # 45588
TSG Reporting - Worldwide
877-702-9580
Page 205
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APPEARANCE OF COUNSEL:
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For the Plaintiffs:
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DUANE POZZA, ESQ.
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Jenner & Block
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1099 New York Avenue, NW, Suite 900
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Washington, DC 20001
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8
9
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For the Defendants:
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DEEPAK GUPTA, ESQ.
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Farella Braun & Martel
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Russ Building
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235 Montgomery Street, 17th Floor
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San Francisco, CA 94104
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o0o
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Continued Deposition of JAMES BOYLE,
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taken by the Plaintiffs, at Office Suites Plus, 3737
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Glenwood Avenue, Suite 100, Raleigh, North Carolina, on
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the 19th day of January, 2012 at 9:38 a.m., before
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Marisa Munoz-Vourakis, Registered Merit Reporter,
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Certified Realtime Reporter and Notary Public.
TSG Reporting - Worldwide
877-702-9580
Page 209
1
Q.
What is Exhibit 2?
2
A.
Exhibit 2 appears to be my rebuttal report.
3
Q.
This is your rebuttal report submitted in
4
5
this Hotfile litigation, correct?
A.
That appears to be the case.
I haven't
6
read all of it, but assuming it's as I submitted it,
7
then that would be true.
8
9
MR. POZZA:
And just for the record,
I'll note the text of the report itself,
10
there were some attached exhibits that were
11
also sent, but those are not included in
12
this exhibit, although some of them we'll
13
look at later.
14
15
16
Q.
We went over this a bit last time, but what
is your educational background?
A.
I have an LLB law degree from Glasgow
17
University and an LLM and an SJD from Harvard Law
18
School.
19
Q.
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21
And what are you formally trained in?
MR. GUPTA:
Objection, vague and
ambiguous.
22
A.
I am trained as a lawyer and legal scholar.
23
Q.
What bar are you a member?
24
A.
I'm not a member of the bar.
25
Q.
Have you ever been a member of the bar?
TSG Reporting - Worldwide
877-702-9580
Page 444
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(Off the record at 5:15 p.m.)
2
(On the record at 5:18 p.m.)
3
BY MR. POZZA:
4
5
6
Q.
If you look at paragraph 53, is this a
statistical analysis you present here?
A.
This is an analysis of the data in -- that
7
Hotfile keeps under the log heading paid for connected
8
to the Zebrak study, the Zebrak/Waterman study, and in
9
particular using Mr. Zebrak's categories in order to
10
indicate of the paid for files, that is to say, the
11
files that were the files that caused users to convert
12
to the premium service that caused them to actually --
13
the files on which they chose to select premium, what
14
percentage of the daily download total of those files
15
were the ones which caused the user to convert to
16
premium.
17
18
Q.
Do you know what queries were used to
generate this table?
19
20
MR. GUPTA:
Objection, vague as to
queries.
21
BY MR. POZZA:
22
Q.
Database queries?
23
A.
So I'm not sure what you mean by database
24
queries.
25
was the arithmetic process that went through there.
Basically what I was trying to describe there
TSG Reporting - Worldwide
877-702-9580
So
Page 446
1
2
material, yes.
Q.
Are you purporting to claim that this
3
allowed you to draw any opinions or conclusions about
4
Hotfile?
5
A.
I would say that these numbers indicate
6
that the category that Mr. Zebrak identified as
7
noninfringing had a much higher conversion rate, that
8
is to say, a rate of converting people to premium than
9
the confirmed infringing.
10
I'd say in addition, that Mr. Zebrak's
11
confirmed infringing category was the lowest of all of
12
the types of content, lower even than unknowable, and
13
so I think I can from that draw the conclusion that
14
Hotfile was gaining economic success from noninfringing
15
material, number one, I can conclude that; and number
16
two, that they were actually gaining more economic
17
success proportionately from noninfringing material
18
than from confirmed infringing or highly likely
19
infringing material.
20
Q.
Can you extrapolate these results from the
21
1750 files to the broader population of files on
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Hotfile?
23
A.
I believe it is the assertion of
24
Dr. Waterman and Mr. Zebrak that the study can be
25
extrapolated.
I, for the reasons in this report, I
TSG Reporting - Worldwide
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Page 462
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SIGNATURE PAGE
you.
(Whereupon the deposition was
concluded at 5:43 p.m.)
(Signature reserved.)
6
Digitally signed by James Boyle
DN: cn=James Boyle, o, ou,
email=boyle@law.duke.edu, c=US
Date: 2012.01.31 15:55:27 -05'00'
7
___________________________
8
JAMES BOYLE
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SUBSCRIBED AND SWORN to before me this ______
12
day of_____________________________, 2012
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15
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___________________________
NOTARY PUBLIC
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My Commission expires:__________________________
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TSG Reporting - Worldwide
877-702-9580
Page 464
1
2
C E R T I F I C A T E
I, Marisa Munoz-Vourakis, RMR, CRR and Notary Public,
3
the officer before whom the foregoing proceeding was
4
conducted, do hereby certify that the witness(es) whose
5
testimony appears in the foregoing proceeding were duly
6
sworn by me; that the testimony of said witness(es) were
7
taken by me to the best of my ability and thereafter
8
transcribed under my supervision; and that the foregoing
9
pages, inclusive, constitute a true and accurate
10
11
transcription of the testimony of the witness(es).
I do further certify that I am neither counsel for,
12
related to, nor employed by any of the parties to this
13
action in which this proceeding was conducted, and
14
further, that I am not a relative or employee of any
15
attorney or counsel employed by the parties thereof, nor
16
financially or otherwise interested in the outcome of the
17
action.
18
IN WITNESS WHEREOF, I have hereunto subscribed my name
19
this 23rd of January, 2012.
20
21
22
23
___________________________
MARISA MUNOZ-VOURAKIS
Notary #20032900127
24
25
TSG Reporting - Worldwide
877-702-9580
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