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 5

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF

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DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION; UNIVERSAL CITY
STUDIOS PRODUCTIONS LLP;
COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROS.
ENTERTAINMENT, INC.,
Plaintiff,
vs.
HOTFILE CORP., ANTON TITOV,
and DOES 1 - 10

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Defendants.
______________________________/
AND RELATED CROSS-ACTIONS.
______________________________/

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VIDEOTAPED DEPOSITION OF ANDREW S. CROMARTY, Ph.D.
SAN FRANCISCO, CALIFORNIA
FRIDAY, DECEMBER 16, 2011

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BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR
CSR LICENSE NO. 9830
JOB NO. 44314
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FRIDAY, DECEMBER 16, 2011
10:09 a.m.

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VIDEOTAPED DEPOSITION OF ANDREW S. CROMARTY,

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Ph.D., taken at Farella Braun + Martel LLP

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235 Montgomery Street, San Francisco,

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Pursuant to Notice, before me,

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ANDREA M. IGNACIO HOWARD, CLR, CCRR, RPR,

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CSR License No. 9830.

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A P P E A R A N C E S:

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FOR THE PLAINTIFFS:

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JENNER & BLOCK

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By:

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1099 New York Avenue, NW

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Washington, D.C. 20001

LUKE C. PLATZER, Esq.

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FOR THE DEFENDANTS:

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FARELLA BRAUN + MARTEL

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By:

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235 Montgomery Street

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San Francisco, California 94104

TONY SCHOENBERG, Esq.

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ALSO PRESENT:

Sean McGrath, Videographer

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---oOo---

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(Recess taken.)

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THE VIDEOGRAPHER:

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we are on the record.

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The time is 4:31 p.m., and

MR. PLATZER:

Q.

I'd like to shift gears a

little and talk about fingerprinting technology.

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A

Sure.

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Q

And having read through your report a couple

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of times, I want to make sure I understand exactly

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what your expert opinion here is.

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You're not actually offering an expert

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opinion that fingerprinting technology results in

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frequent false positives; are you?

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MR. SCHOENBERG:
ambiguous.

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Objection; vague and

MR. PLATZER:

Q.

Do you understand the --

the term "false positive" the way I used it?

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A

I have a very deep understanding of the term

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false positive, and I assume we're using it the same

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way.

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Q

Okay.

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A

Well, respectfully, the question is not well

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posed.
But if we appeal to the common understanding

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of false positives and these sorts of matching

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techniques, there is often a tradeoff between false
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negatives and false positives.
So the question is not in a vacuum, does a

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technique have a false positive rate, although that

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may be a characteristic of an individual technique, as

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is noted in the MovieLabs analyses, but what is the

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rate of false positives and false negatives jointly

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for some setting?

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And then, I believe, as they themselves note,
that is, MovieLabs, there can be differences in the

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combined false negative and positive rate across

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techniques, and that there are business reasons why

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one might choose a false positive rate.

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So now, your question is about whether I'm

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opining that they inherently have a high false

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positive rate.

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So the first part of my answer is that a

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reason the question inherently is not well posed is

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that it is one of many interacting characteristics of

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the technique in application, and second, that there

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are business decisions that go into a selected false

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positive rate.

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So the -- in that regard, the answer is no, I

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am not offering the opinion that you stated -- as you

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stated it.

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reflect the actual nature of false positives and the

I'm offering more complex opinions that

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other business factors and other technical factors.
Q

Well, since it's a vendor that you opine

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about in your report, let's talk about Vobile

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specifically.

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A

Okay.

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Q

Are you offering an opinion about the

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frequency with which Vobile identifies a false

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positive?

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A

Not precisely.

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Q

Well, let me -- let me pose it this way.

Would you like me to explain?
I

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know you've -- you've opined that false positives are

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a theoretical possibility with video fingerprinting

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systems because information is lost when complex

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assets are reduced down to small numbers.

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Is that a fair paraphrasing or summary of

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one -- one of the opinions that you offer in your

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report?

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That's somewhat similar to one of the

opinions that I offer in my report.

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Q

How would you characterize it, briefly?

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A

Well, I have a -- a collection of opinions

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on -- on the topic.

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Q

And I'm referring --

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A

So --

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Q

-- to that specific opinion about the
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MD5 hashing, have you?

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That's correct.

In this instance, I'm

answering your question.

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Q

Okay.

So the answer that you just gave is

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just hypothetical; it's not an answer about what

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Hotfile actually did?

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No.

That was an A, B, and neither of those

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is correct.

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and it's not what I know what they did.

It's not A or B.

It's not hypothetical,
It's

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practical, and it's a deep understanding, and it has

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significant business consequences.

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based on my conversation with Mr. Titov in which he --

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he could have identified these -- these specific

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details to me.

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Q

But it is not

Is using hashing to implement takedown

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notices a standard business practice among Internet

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service providers, in your opinion?

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A

Well, first, I haven't been asked to opine on

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the frequency of the use of this technique by other

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providers as a part of my report, per se.

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I think the question that you asked there is

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slightly different from -- from -- from -- as I

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understand your question, and maybe I don't understand

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it.

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Q

Well, you do opine here that this is an
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industry standard practice, don't you, in the heading

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to section -- Roman numeral VIII, heading A of your

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report?

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Oh, yes.

You asked what -- maybe -- maybe we

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should have you re-ask your question so I'm sure that

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I hear it correctly.

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Q

on hashing an industry standard practice?

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Well, is implementing takedown notices based

MR. SCHOENBERG:

Objection; vague and

ambiguous.

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THE WITNESS:

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question.

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There are several parts to that

to.

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I think that might be what I was responding

So the use of hash matching is not the same

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as takedowns.

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It's a -- it's a business or even social process.

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my opinion here in the first instance is about hash

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matching.

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So a takedown is not an algorithm.
And

I say:

"SHA/MD5 hash matching is a best effort and

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reasonable business practice that addresses an

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importance class of potential infringements by unknown

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third-party actors on the Internet."

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And so, in fact, when I review this

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paragraph -- and I'm reading 145, to which you

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effectively directed me a moment ago -- in my first
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reading, I don't see the phrase "takedown" anywhere in

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that paragraph, and yet I was able to say a good 30 or

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40 words about the use of SHA and MD5 hash matching in

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the industry.

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So I'm just trying to -- to make clear

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that -- that you've combined several things in your

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question and implied a different result than perhaps I

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had opined on.

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MR. PLATZER:

Well, sir, I'm not asking you

what your report says.
Q

I'm asking you a question here today:

Is

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implementing a takedown notice based on hashing to

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identify identical files to the one that's the subject

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of the takedown notice, is that an industry standard

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practice?

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MR. SCHOENBERG:

Objection; vague and

ambiguous; asked and answered.
THE WITNESS:

Based on my industry

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experience, I will say I do have the impression that

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to the extent that takedowns are implemented with

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respect to DMCA takedown specifically or not, but

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requests that -- that it may be the case that hash

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matching is a technique that is widely employed, yes.

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And I'm relying there on my industry experience.

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MR. PLATZER:

So I want you to assume that a

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file sharing service that employs hash matching for

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de-duplication purposes, upon receipt of a takedown

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notice, does not delete or disable the file that

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resides at the URL in the takedown notice, but simply

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disables the particular URL that is mentioned in the

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notice that -- that leads to that file, while allowing

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other URLs that direct to that file to remain active.

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posed it?

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Do you understand the hypothetical as I've

I think so.

I think what you're saying is

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there's file de-duplication in place, that there's a

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single underlying physical -- well, in the sense that

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we think of files as physical, an asset -- file

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asset -- that there are multiple pointers to this

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file, and through one that has web links or what have

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you, names for it, and that there is a takedown notice

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pursuant to one, for example, published web link, and

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then in your hypothetical, that that link is made

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dysfunctional or inactive, but that other links may

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still point to the file; is that the question?

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You have comprehended my hypothetical

precisely.
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Okay.

then, yes.
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I understand the -- the backdrop,

Okay.

In that hypothetical, is the file sharing
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service's response of disabling one particular URL,

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but not the underlying file itself, would you consider

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that a standard business practice?

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MR. SCHOENBERG:

Objective; incomplete --

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objection; incomplete hypothetical; lack of

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foundation; vague and ambiguous.

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THE WITNESS:

Well, actually, that's an

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excellent example of the flaws in the core model that

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I understand plaintiffs to have advanced through their

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complaint that I illustrate in my four-part

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methodology that I identify in my report and opine on

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extensively.

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As one example -- and we see this from --

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from the fact that we have plaintiffs who themselves

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uploaded files into Hotfile -- there can be multiple

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paths to a single file.

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warranted.

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Some of them may be

And so we can easily imagine a case in

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which -- I'll give -- I'll give you an example.

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I was the CTO and CIO of the principal industry file

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sharing site that was used by many of the plaintiffs,

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that a given asset was used and shared and made

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available by multiple companies at once.

When

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Now, if someone had somehow created an extra

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link to that -- we never had any security violations
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in the years that I was in that role, but that would

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have been regarded as a security violation if it had

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been made available to them through that additional

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company's interface.

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And if that link were taken down, you

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certainly would not want to destroy the underlying

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asset.

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legitimate rights holders who had a right to share it.

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You would want it to remain available to the

So this shows exactly the kind of difficulty

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that I've identified where you can have an asset

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that -- that does correctly belong on a file sharing

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service, but the link to it that is a separate entity

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does not belong in the possession of some -- some

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unauthorized user.

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MR. PLATZER:

Q.

Are you aware of any file

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sharing or user-generated content website that follows

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the practice that I just described in my hypothetical?

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MR. SCHOENBERG:

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THE WITNESS:

Same objections.

Well, I -- as I understand the

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question you're immediately asking exactly, the Dax

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site used exactly that model.

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asset, multiple individual pointers to it, the

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pointers are represented as web links, they're

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available to different users, and it's theoretically

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possible that some user could obtain a web link that
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was an inappropriate use for them because they did not

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have rights to the file.

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And in that instance the right response would

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be to remove the link, but not to remove the other

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links or the underlying digital asset that was owned

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by companies such as your own clients, the plaintiffs.

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So that's exactly an example of that, yes.

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MR. PLATZER:

You also opine in paragraph 147

that defendants -- and I'm quoting here:

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"Timely adopted and currently employ

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techniques for digital fingerprinting, including those

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generally advanced or approved by the plaintiff's

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industry association, including the products and

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services of Vobile."

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Q

Sitting here today, do you know when Hotfile

implemented Vobile's technology?
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It's my recollection that I discussed the

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implementation of and adoption -- implementation is

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probably misuse of the term, but let's call it

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adoption -- of Vobile's technology with Mr. Titov.

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And to the best of my ability to recall, I discussed

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some of the details of the dates.

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those in mind as I sit here today.

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I no longer have

But I would point out that I must say that
in -- in the world of the Internet in which we live,
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CERTIFICATE OF REPORTER

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I, ANDREA M. IGNACIO HOWARD, hereby certify

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that the witness in the foregoing deposition was by me

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duly sworn to tell the truth, the whole truth, and

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nothing but the truth in the within-entitled cause;

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That said deposition was taken in shorthand

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by me, a Certified Shorthand Reporter of the State of

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California, and was thereafter transcribed into

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typewriting, and that the foregoing transcript

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constitutes a full, true and correct report of said

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deposition and of the proceedings which took place;

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That I am a disinterested person to the said
action.

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IN WITNESS WHEREOF, I have hereunto set my
hand this 21st day of December 2011.

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_______________________________________
ANDREA M. IGNACIO HOWARD, RPR, CCRR, CLR, CSR No. 9830

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