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

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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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)
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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

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Digitally signed by James Boyle
DN: cn=James Boyle, o, ou,
email=[e-mail], c=US
Date: 2012.01.23 13:24:53 -05'00'

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7

___________________________

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JAMES BOYLE

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10
11

SUBSCRIBED AND SWORN to before me this ______

12

day of _____________________________, 20__.

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14
15
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___________________________
NOTARY PUBLIC

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19

My Commission expires:__________________________

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TRANSCRIPTION

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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
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64
____________________________________________________

13

65
17
that in fact file
in fact that file
____________________________________________________

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67
21
is
has
____________________________________________________

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76
13
infringing
noninfringing
____________________________________________________

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83
10
indecent
inducement
____________________________________________________

17

102
12
mutual
neutral
____________________________________________________

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111
4
do it
use
____________________________________________________

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and in addition
120
14-15
and telling
____________________________________________________ told

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141
15
hope file
Hotfile
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Page 203
1
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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

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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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)
)
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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
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877-702-9580

Page 205
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APPEARANCE OF COUNSEL:

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For the Plaintiffs:

3

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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17
18

o0o

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20

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

24

Marisa Munoz-Vourakis, Registered Merit Reporter,

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Certified Realtime Reporter and Notary Public.
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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?
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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

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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

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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=[e-mail], c=US
Date: 2012.01.31 15:55:27 -05'00'

7

___________________________

8

JAMES BOYLE

9
10
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SUBSCRIBED AND SWORN to before me this ______

12

day of_____________________________, 2012

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14
15
16

___________________________
NOTARY PUBLIC

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18

My Commission expires:__________________________

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Page 464
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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 23rd of January, 2012.

20
21
22
23

___________________________
MARISA MUNOZ-VOURAKIS
Notary #20032900127

24
25
TSG Reporting - Worldwide

877-702-9580