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

Filing 390

NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Redacted Version of the Declaration of Andrew Leibnitz and Exhibits Thereto, Filed in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Exhibits Thereto (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37)(Munn, Janet)

EXHIBIT 37

Waterman,
Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DISNEY ENTERPRISES, INC.,
ET AL.,
Plaintiffs,
vs.
HOTFILE CORP., ANTON TITOV,
ET AL.,
Defendants.

:
:
:
:
:
:

CIVIL ACTION

NO. 11-20427

- - Tuesday, November 29, 2011
- - -

Videotaped deposition of RICHARD WATERMAN,
Ph.D., taken at the Law Offices of STRADLEY, RONON,
STEVENS & YOUNG, LLP, 2005 Market Street, Suite
2600, Philadelphia, Pennsylvania, on the above date,
beginning at 9:33 a.m., before Theresa Kepler, CCR,
RPR-Notary Public, there being present.

- - LOVE COURT REPORTING, INC.
1500 Market Street
12th Floor, East Tower
Philadelphia, Pennsylvania

19102

[phone]

Love Court Reporting, Inc.

Waterman,
Page 2
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A P P E A R A N C E S:

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JENNER & BLOCK, LLP
BY: DUANE POZZA, ESQUIRE
1099 New York Avenue, NW
Suite 900
Washington, D.C. 20001
Phone: [phone]
Counsel for Plaintiffs and Richard Waterman, Ph.D.

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FARELLA, BRAUN & MARTEL, LLP
BY: ANDREW LEIBNITZ, ESQUIRE
235 Montgomery Street
San Francisco, California 94104
Phone: [phone]
Counsel for Defendants

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Also Present:

Daniel Levy

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Videographer:

Scott Rowland

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Love Court Reporting, Inc.

Waterman,
Page 83
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seeing in this particular time or, you know, area

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for which the population was drawn would have no

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particular reason for believing that it was

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different from some other one.

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wouldn't be a statistical statement that was driving

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that because you need data to make a statistical

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statement but one I would say of general expertise.

8
9

Q.

Did you do that here in the Hotfile

case?

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11

And that, you know,

MR. POZZA:

Objection.

The question

is vague.

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THE WITNESS:

My statements in the

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Hotfile case refer to what was hap -- in

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terms of the analysis that I did refer to

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January 2011.

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BY MR. LEIBNITZ:

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Q.

Do you purport to opine in this case,

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Dr. Waterman, about any behavior outside

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January 2011?

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MR. POZZA:

Object as to the meaning

of behavior.
THE WITNESS:

My numbers that I

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present in the report are definitely

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statements specifically about January, and

Love Court Reporting, Inc.

Waterman,
Page 84
1

then I would say to the extent that the world

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was similar before January, for example,

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December, that if in -- if I had no reason to

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believe that the world had changed

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dramatically, you know, that there was no

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event of interest that would change behavior,

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then that the results that I provided would

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give one a sense of what was likely happening

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prior to that point.

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BY MR. LEIBNITZ:

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Q.

Let's be very clear, sir.

Do you

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purport in this case to opine about behavior outside

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January 2011?

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MR. POZZA:

Object -- same objection,

and asked and answered.
THE WITNESS:

I would just reiterate

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that the statements that I make are

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absolutely related to January 2011, I mean,

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because that was the population from which

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the log file -- you know, we drew samples

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from the January log file, so this is a

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statement about January 2011.

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to which a month of December of 2010 or

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November 2010 would be expected to be similar

And the extent

Love Court Reporting, Inc.

Waterman,
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or, as I would say, I have no reason to

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believe that the world changed in some

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dramatic fashion, there was no massive event

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of interest, then my sense would be that this

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would give me good understanding of what was

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-- what was likely to have happened

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beforehand.

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statement -- I wouldn't put that statement in

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the same category as I would the one about

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the population for which I drew the sample.

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BY MR. LEIBNITZ:

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Q.

But I wouldn't say that that

Dr. Waterman, in your opinion how

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much infringement has happened by virtue of the

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Hotfile website in the last 24 hours?

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A.

The last 24 hours I would not want to

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provide an opinion on that because what I learned

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about was January 2011, prior to the case being

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brought.

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know, then behavior can change.

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exactly one of those instances, a kind of waterfall

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or watershed type of event where I would anticipate

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behavior to change, potentially change quite

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dramatically once the case is brought.

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I think that once the case is brought, you
That would be

And so I -- and I have no strong

Love Court Reporting, Inc.

Waterman,
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basis to say one way or another what the result of

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that would be, but typically when someone is told,

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you know, that they are doing something illegal

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their behavior changes, fundamentally changes.

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so we don't have -- I do not have information prior

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to the case, so I don't want to say anything about

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what happened.

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after that point in time.

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Q.

And

I think it was sometime in February

So you can't opine as you sit here

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today that there was a non-zero level of

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infringement in the last 24 hours on Hotfile?

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MR. POZZA:

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THE WITNESS:

Objection.

Vague.

I have collected no

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data on the last 24 hours.

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don't even know if the site exists in the

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last 24 hours.

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BY MR. LEIBNITZ:

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Q.

I, to be honest,

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Can you provide an opinion today

about the level of infringement over the last week?
A.

I would repeat the same answer as I

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provided before that any time after the case was

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brought and when defendants understood that this

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litigation was going to happen that the behavior of

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the site would have -- could have changed radically

Love Court Reporting, Inc.

Waterman,
Page 87
1

as compared to before it was brought and since my

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data is from the pre time period that is the time

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period for which I'm most comfortable in making

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statements.

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in all honesty so I don't know whether there's been

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a download.

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Q.

So I don't know whether the site exists

So there may be a zero percent level

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of infringement using Hotfile's technology in the

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last week?

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A.

I agree that both are possibilities.
Q.

So you can't testify that it's not

zero percent in the last week, right?

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Likewise there could be 100 percent,

MR. POZZA:

Objection.

Asked and

answered.

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THE WITNESS:

As I say, my -- my

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study's absolutely clear as to the where the

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log file was drawn from which was January of

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2011 and my report pertains to that period in

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terms of the conclusions that I draw.

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BY MR. LEIBNITZ:

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Q.

Can you testify as you sit here today

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that there was a non-zero level of infringement in

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the last week on Hotfile?

Love Court Reporting, Inc.

Waterman,
Page 88
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MR. POZZA:

2

answered.

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Objection.

Asked and

question.

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You're just asking the same

THE WITNESS:

As I said, it may have

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been a hundred percent, it may have been

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99 percent, it may have been 0 percent.

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BY MR. LEIBNITZ:

8

Q.

9
10

You can't tell one way or the other?
MR. POZZA:

Objection.

Asked and

answered.

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THE WITNESS:

As I've said, my data

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set, the one that I've analyzed is to do with

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January and so in terms of the numerical

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quantities that I present in my report they

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will refer to January 2011.

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BY MR. LEIBNITZ:

17

Q.

You can't testify as you sit here

18

today that there was a non-zero level of copyright

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infringement using Hotfile's technology in the last

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six months, can you?

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MR. POZZA:
testimony.

Objection.

Misstates

Vague.

23

THE WITNESS:

24

back to May of 2011.

Six months takes us
May of 2011 is after

Love Court Reporting, Inc.

Waterman,
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1

the time period for which I have the log file

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which is January.

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statements, the numerical statements that I

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provided relate to January of 2011.

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amount of infringement that happened

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subsequent to that event we have -- I have no

7

information on to make a determination as to

8

whether it's a hundred percent, 90 percent,

9

50 percent or your hypothetical of

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So as I noted in my

The

zero percent.

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I have not drawn a conclusion

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about -- in my report didn't draw a

13

conclusion about what happened yesterday on

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Hotfile.

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BY MR. LEIBNITZ:

16

Q.

Or in the last week, or in the last

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month, or in the last six months, or indeed since

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the Complaint was filed in this case.

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MR. POZZA:

Objection.

Argumentative.
THE WITNESS:

That it correct, I --

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I -- as I keep stating the data, the log file

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that was used in this analysis was the log

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file for January 2011.

The sample was drawn

Love Court Reporting, Inc.

Waterman,
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1

from file downloads in January of 2011 and

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therefore the quantitative inferences pertain

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to January 2011.

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BY MR. LEIBNITZ:

5

Q.

To be clear, you state no opinion as

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to the level of infringement using Hotfile's

7

technology since the filing of the Complaint in this

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case in February 2011, right?

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A.

By virtue of the data that I have

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collected or the log file that I have had access to,

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the January log file, the statements that I made

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pertain up to the end of January.

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general if there is a watershed type event, and the

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bringing of the case would be such a type of

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watershed type event, then I would acknowledge that

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human behavior can change.

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would change, I mean I wouldn't speculate, but I'm

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confident that people do change their behavior.

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And as I said, in

Exactly in which way it

And if I felt that behavior, that I

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had no reason to believe that fa -- the ultimate

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behavior had not changed, then I feel that my study

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did give some sense of what was likely to be

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happening.

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retrospectively behind January 2010 in just, you

And so I would be more comfortable going

Love Court Reporting, Inc.

Waterman,
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CERTIFICATE OF DEPONENT

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I do hereby certify that I

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have read the foregoing pages, and that the same is

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a correct transcription of the answers given by me

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to the questions therein propounded, except for the

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corrections or changes in form or substance, if any,

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noted in the attached Errata Sheet.

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_____________________________
RICHARD WATERMAN, Ph.D.

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_______________
DATE

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Subscribed and sworn to before me this

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_______ day of

__________ , 2011.

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My commission expires: ____________

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Notary Public

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Love Court Reporting, Inc.

Waterman deposition errata

Page 30. Line 23. “point of”  “pointer to”.
Page 103. Line 23. “not of”  “not”.
Page 121. Line 24. “Not aware”  “ I am not aware”.
Page 142. Line 13. “refers to”  “refers”.
Page 146. Line 8. “that the”  “the”.
Page 158. Line 13. “only”  “own”.
Page 205. Line 24. “cold”  “coal”.
Page 206. Line 5. “knowledge”  “acknowledge”.
Page 209. Line 6. “or”  “as”.

Page 248. Line 21. “state”  “stated”.
Page 254. Line 16. “down”  “does”.