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

Filing 424

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 423 Plaintiff's MOTION to Strike >PLAINTIFFS' MOTION AND MEMORANDUM OF LAW TO STRIKE PORTIONS OF DECLARATIONS OF PROFESSOR JAMES BOYLE, DR. ANDREW CROMARTY AND ANTON TIVO IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTIO >NOTICE OF FILING PUBLIC REDACTED VERSION OF DECLARATION OF JENNIFER V. YEH IN SUPPORTT OF PLAINTIFFS' MOTION TO STRIKE< (Attachments: # 1 Affidavit Declaration of Jennifer V. Yeh in Support of Plaintiffs' Motion to Strike, # 2 Exhibit 1 to Declaration of J. Yeh, # 3 Exhibit 2 to Declaration of J. Yeh, # 4 Exhibit 3 to Declaration of J. Yeh, # 5 Exhibit 4 to Declaration of J. Yeh)(Stetson, Karen)

Page 1
1

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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

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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1

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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5
6

Q.

In the course of your research, do you have

any experience designing statistical studies?

7

MR. GUPTA:

8

Objection, vague and

ambiguous.

9

A.

No, I do not.

10

Q.

Are you trained in statistics?

11

A.

No, I am not.

12

Q.

In the course of your research, do you have

13

any experience analyzing large data sets?

14

MR. GUPTA:

15

Objection, vague and

ambiguous.

16

A.

No, I would say that I do not have the

17

experience as a statistician analyzing large data sets.

18

As an academic, I have to consider large amounts of

19

data all of the time and try and draw conclusions from

20

it, so it depends exactly what you mean by large data

21

sets.

22
23
24

Q.

In your research, do you have any

experience analyzing on line networks?
MR. GUPTA:

Objection, vague and

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1

A.

3

No, I did not.

I was asked to look at

In addition, I am not a statistician, as I

4

made clear on paragraph seven.

5

to be a representative statistical sample.

6

Q.

This does not purport

Getting to the summary of opinions,

7

paragraph nine, let's start with conclusion one, little

8

i, I guess.

9

high volume of usage of the Hotfile system for

I'll just read it:

First, there was a

10

activities that were either clearly noninfringing or

11

highly likely to be noninfringing.

12

Do you see that?

13

A.

I do.

14

Q.

What do you mean by a high volume of usage?

15

A.

I mean that there was a large number of

16

downloads of material of that type.

17

Q.

What is a large number of downloads?

18

A.

Are you asking me in philosophical sense?

19

Q.

How would you quantify what a large number

20
21
22
23

of downloads would be?
A.

I found there were 1.7 million downloads.

That seemed to be a high number to me.
Q.

If it was 10,000 downloads, would that be a

24

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1

information, that's why I said it was highly likely

2

infringing.

3

I would say that if you wanted to say

4

what's an example of something that's clearly

5

noninfringing, that's the case of something where

6

there's an identified corporate distributor

7

distributing a product that has extensive documentation

8

and review, where I can be absolutely conclusively

9

certain.

10

But in this case, I think I was being

11

extremely conservative in saying highly likely.

I

12

think in this situation, given the fact that the

13

distributor is offering it from their own web site,

14

given the fact that the license is on file, the various

15

source code repositories, I think that it's a very high

16

19

Q.

Just going back again to the last sentence

20

of 9 sub-i, you say:

21

capability with such licensing models is of

22

significance.

23

Hotfile's proven suitability and

Do you see that?

24

A.

Yes, I do see it.

25

Q.

What kind of significance?

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1
2

MR. GUPTA:
A.

Objection, it's vague.

In Sony and the cases that followed Sony,

3

the courts have been very clear that it's not just the

4

current usage of a system but its potential for future

5

use that is important.

6

So, for example, in the Napster case the

7

court of appeals held that the district court had erred

8

in not considering the potential uses for Napster,

9

focusing only on its current uses.

You asked what the

10

meaning is of the word significance.

11

first in that here we have a method that can be used

12

indirectly to compensate developers and distributors of

13

open source software, in this case these small

14

distributors, not the large scale commercial

15

distributors, but the independent programmer working

16

alone or in teams, who is being indirectly compensated

17

for his or her labor by distributing this copyrighted

18

work in accordance with the goals of the copyright act.

19

It's significant

The significance there is first, that that

20

is an example of noninfringing use; and second, that

21

the potential that the system could be used even more

22

for this and other kinds of licitly, that is to say,

23

legally licensed distribution is something that shows

24

that under the Sony test, as reiterated in Napster, it

25

has potential future uses.

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So it's the growth and potential for this

2

kind of software in term of methods of distribution.

3

Hotfile would be one such method of distribution.

4

That's what I meant by significance.

5

Q.

It has legal significance?

6

A.

I think it has legal significance.

I think

7

it has cultural significance.

8

significance.

9

significance to an assessment under the Sony standard

10
11
12

I think it has economic

But in this case, I was talking about

and the Grokster standard.
Q.

Can Bittorrent be used to distribute free

software programs?

13

MR. GUPTA:

Objection, lacks

14

foundation, calls for speculation.

15

outside the scope of his report.

16

vague.

17

A.

Its
It's also

I don't know the Bittorrent systems, so I

18

would have to have it described to me to know whether

19

or not it can be used in the same way the Hotfile

20

system is used.

21

Q.

Are you familiar with LimeWire?

22

A.

I have a general familiarity with LimeWire,

23

only from reading discussions of it in the legal

24

literature.

25

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1

A.

I said that one of the uses of Hotfile,

2

which was significant in terms of applying the test in

3

Sony and in Grokster, was the fact that there was a

4

significant licit use to encourage the distribution of

5

legal copyrighted material.

6

one reads Sony and Grokster, and if one reads Article I

7

Section 8, Clause 8 of the Constitution, it seems clear

8

that one of the main goals in interpreting all of the

9

tests here, the tests in Sony and the tests in Grokster

It's, in my opinion, if

10

is the promote the progress goal of copyright law.

11

In looking at licit uses, therefore, I

12

think it's particularly likely that a court would lay

13

weight on licit uses of distributing copyrighted

14

content, which actually managed A, to spread that

15

content to users or consumers, which is one of the

16

goals of the copyright system; and B, to compensate the

17

creator and thus incentivize future creativity, which

18

is a second goal.

19

So for that reason, I think this use of the

20

Hotfile system is significant in order to figure out

21

whether or not it has substantial noninfringing uses.

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7

A.

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.

People who really like Hamlet or Othello

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1
2

Macbeth by YouSendIt.
Q.

Are there sort of virtual libraries that

3

have copies of what is public domain material that is

4

not necessarily user posted?

5
6

MR. GUPTA:
A.

Objection, vague.

There are -- I am familiar with some.

The

7

internet archive allows the posting of public domain

8

material.

9

generation of copies of public domain books, such as

There are also projects that aim at the

10

the Gutenberg project, but their method of distribution

11

is to allow that material to be posted in multiple

12

places so that people can download it there.

13

to distribute it -- a distributed method of

They want

21

Q.

I want to go to paragraph 34 of your

22

report.

23

noninfringing content is frequently uploaded and

24

downloaded on Hotfile, and those uses are substantial

25

both in terms of raw numbers and in terms of the most

The first sentence there says:

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common uses of the Hotfile system.

2

Do you see that?

3

A.

I do.

4

Q.

I think we talked about the raw numbers.

5

In terms of the most common uses of the Hotfile system,

6

what do you mean there?

7

A.

I mean the information about the fact that

8

files such as iREB and sn0wbreeze and to a less extent

9

JDownloader, were among the most commonly shared files

10

on Hotfile, that their number of downloads was high in

11

proportion to, excuse me, was high in rank if you

12

looked at the most downloaded.

13

Q.

So are you making a statement about

14

different kinds of uses of the Hotfile system in

15

general?

16
17

MR. GUPTA:
A.

Objection, it's vague.

So I'm trying to give the court information

18

relevant to whether or not there are substantial,

19

noninfringing uses of Hotfile and also relevant to

20

whether or not Hotfile would be guilty of a Grokster

21

style inducement liability.

22

it appears that if you find that the one and two most

23

downloaded files on the system are actually licitly

24

shared, that seems important, that seems significant.

25

The fact that those files are examples of

To me, as a legal scholar,

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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

Q.

This report

Are there any other potential noninfringing

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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

22
23
24
25

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1

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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

15
16
17

Continued Deposition of JAMES BOYLE

18

Volume II

19

(Taken by the Plaintiffs)

20

Raleigh, North Carolina

21

January 19, 2012

22
23
24

Reported by:

25

Marisa Munoz-Vourakis RMR, CRR and Notary Public

TSG Job # 45588

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1

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, 17th Floor

15

San Francisco, CA 94104

16
17
18

o0o

19
20

Continued Deposition of JAMES BOYLE,

21

taken by the Plaintiffs, at Office Suites Plus, 3737

22

Glenwood Avenue, Suite 100, Raleigh, North Carolina, on

23

the 19th day of January, 2012 at 9:38 a.m., before

24

Marisa Munoz-Vourakis, Registered Merit Reporter,

25

Certified Realtime Reporter and Notary Public.

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1
2
3
4
5

MR. GUPTA:

Objection, vague as to the

word qualified.
A.

This is the only case in which I've ever

appeared as an expert.
Q.

Have you ever written a legal brief

6

submitted to a court analyzing whether or not

7

distribution of certain content is authorized?

8
9

MR. GUPTA:

Objection, vague and

ambiguous and incomplete hypothetical.

10

A.

No, I have not.

11

Q.

Have you ever written a legal brief

12

submitted to a court analyzing whether distribution of

13

certain content would be an infringement?

17

Q.

Have you ever taken a course in statistics?

18

A.

No, I have not.

19

Q.

Do you believe that you're qualified as a

20

statistician?

21

A.

No, I do not.

In fact, I believe I said in

22

my first expert report that I was not a statistician

23

and did not purport to be a statistician.

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1

premium users of Hotfile uploaded files?

2

A.

No, I have not.

3

Q.

Why not?

4

A.

Because my first report was focused on

5

possible substantial noninfringing uses of the Hotfile

6

system, including open source software, public domain

7

material and creative commons license material.

8
9
10

The question of how many premium users have
uploaded files to Hotfile was not relevant to that.
My second rebuttal report was focused on

11

Dr. Waterman and Mr. Zebrak's study.

12

there was saying that I thought there were flaws in the

13

study, that there were things that they should have

14

studied, which they did not, including, but not limited

16

What I was doing

I am not a statistician, as I've said many

17

times in this report, and do not have the ability to go

18

and perform that study.

What I was suggesting was that

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the subsequent courts lay down no framework that says

2

you have to look at number of files, or you have to

3

look at number of uses, or you have to look at

4

percentages.

5

such as that.

6
7

It simply does not lay down a framework

In my opinion, if, for example, a court
said, a court might well say looking at the

8

13

So I don't think that anything in Sony or

14

the subsequent case law requires one to focus on

15

predominant use, as you have defined it, that is to

16

say, in terms of the number of infringing downloads as

17

a percentage of usages of the system.

18

of no law to that effect, and in fact, I believe the

19

Supreme Court to have indicated strongly that the

20

opposite is the case.

21

Q.

I certainly know

What percentage of the uses of the stream

22

cast system in Grokster would be determined to be

23

noninfringing?

24

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the percentage, I would say that it was a very

2

conservative statement to say that the fact that

3

54 percent of the files, of files with no registered

4

downloads, suggest that the users are using it for

5

something other than file transfer.

6

Q.

But you can't specify what percentage of

7

those uploads are being used for something other than

8

file transfer?

9

A.

No, I cannot.

In fact, I think I say

10

several times in the report that I do not know what

11

percentage are being used for storage, and neither do

12

Dr. Waterman and Mr. Zebrak, because they chose to

13

exclude them from their study.

14

Q.

Let's think about one download file.

22

Q.

Of the 1,750 files in Dr. Waterman's

23

statistical sample, do you know how many of those files

24

were only downloaded once?

25

A.

No, I don't.

I think I say so in the

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2

report, but I don't know that.
Q.

Did you ask Elysium Digital to give you a

3

report as to whether any of the 6,182,360 files with

4

only one registered downloads made it into the

5

statistical sample?

6

A.

No, I didn't.

7

Q.

Why not?

8

A.

I simply was making the point that for

9

several reasons, which I'd be happy to explain, I felt

10

that the -- Dr. Waterman's study and in particular,

11

Mr. Zebrak's treatment of those files, had severe

12

problems as a matter of legal analysis.

13

Mr. Zebrak, from what Mr. Zebrak says about

14

his methods, I believe that he was looking only at

15

whether or not the file was copyrighted and whether he

16

believed that it was not being shared with formal

17

authorization.

18

believe from what he says that he classified it as

19

highly likely infringing.

20

That was his assessment.

If so, I

My point was that to -- for these files,

21

that would ignore a key fact, a fact that a court would

22

want to look at, namely, the possibility that the one

23

download files was either being used for storage, I

24

stored it up there, it's been corrupted, now I'm

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7
8

Q.

download files actually ended up in the sample?

9
10

And you're not aware of how many one

MR. GUPTA:

Objection, that's asked

and answered.

11

A.

No, I'm not.

12

Q.

So as to Mr. Zebrak, your view is that for

13

any of the one download files, he should have done

14

further analysis to determine whether or not he thought

15

it was highly likely to be infringing?

16

A.

Yes, I believe that as part of his analysis

17

of whether or not material was infringing, he should

18

have included more contextual information, among that

19

contextual information, the idea of the number of

20

things I think he should have focused on, but among it

21

is the number of downloads.

22

In addition, I think in terms of

23

Dr. Waterman's study, as I note at the end of, oh,

24

excuse me, as I note in paragraph 26, the method has,

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1

A.

I believe so, yes.

2

Q.

And we could look at those particular files

3

from the sample and determine how many there are,

4

correct?

5

A.

Yes.

6

Q.

And one could determine whether or not

12

Q.

Have you examined the notes field in the

13
14

database that Mr. Zebrak produced?
A.

If the notes field is the field at the end

15

where he lists, generally without comment, some URLs,

16

which I presume were the places that he went for

17

research, yes, in a few of the cases that I talk about

18

here, I have looked at them.

19

Q.

Have you looked at all of them?

20

A.

No, I have not.

21

Q.

Approximately -- for approximately what

22

percentage of the 1750 files have you looked at the

23

URLs that were listed in the notes field?

24
25

MR. GUPTA:

Objection, it's vague and

it calls for speculation.

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1

A.

I'm genuinely unsure.

I would say I looked

2

through to try and get a sense of his methods, and so

3

if we're merely talking, looking through to get a sense

4

of his methods, the kinds of things that are in there,

5

then in that case, I looked at a fairly large number of

6

them, 150, 200, simply looking at what URLs were there,

7

not going to the URL and checking it out.

8

Q.

That was my next question.

9

A.

In terms of the ones where I actually went

10

and looked at the specific URL, certainly for the ones,

11

all of the examples that I mentioned here, and for a

12

number of others, I would say perhaps there are also

13

some of the files that were looked at in my first

14

study, so JDownloader, iREB, sn0wbreeze.

15

all of those together, I would guess perhaps somewhere

16

between 25 and 40, but I couldn't be sure.

17

them being specifically referred to in both reports

18

that is.

19

Q.

20

A.

Not all of

specific URL?

21

If one adds

Those are ones where you clicked on a

Where I clicked on a URL or attempted to

22

look at what the URL was.

I might have clicked on the

23

URL and also attempted to look for that material as

24

well.

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1

Q.

Just to be clear, in general, not just in

2

regard to one download files, you did not go through or

3

have someone go through the links to see if Mr. Zebrak

4

had included links to where the file was publicly

5

available?

6
7
8
9

MR. GUPTA:

Objection,

mischaracterizes his testimony.
A.

No, that's not entirely true.

I can't

remember now in the case of the earlier software that I

10

looked at in my first report.

To be honest, I cannot

11

answer that question for sure.

I did look at some of

12

the URLs that Mr. Zebrak provided in talking about

13

particular files.

22

Q.

And I believe you testified earlier that,

23

correct me if I'm wrong, that you looked at the -- you

24

had actually clicked on the links in the note section

25

for approximately 30 to 40 of the files in the sample?

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A.

I had clicked on some of the links in, I

2

think I said I thought it was 20 to 40.

3

I focused on most intensively are ones that have been

4

mentioned in the reports that we've talked about here.

5

The ones that

So, I believe, for example, that iREB is in

6

Mr. Zebrak's study, and at that point, he thought that

7

iREB was noninfringing and not illegal, and I think I

8

clicked on those links, for example.

9

Q.

How did you identify the files in the

10

sample on which to further investigate by clicking on

11

the links in the note field?

12

A.

There are multiple ways.

In the case of, I

13

believe it was either iREB or sn0wbreeze, which I think

14

was in the initial sample, it may also have been

15

JDownloader, those were examples of open source

16

software that I was already looking at, and so seeing

17

them there, I also wanted to look at them.

18

In the case of, excuse me, the files that I

19

discuss here, it was a combination of methods.

20

cases, defendants' counsel told me that they had been

21

in contact with the providers of the software at issue

22

and that they had an affidavit that said that it was --

23

that distribution was acceptable.

24

In some

So, for example, in the case of the Farming

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defendants' counsel contacted copyright owners of any

2

of the files in this study to confirm whether or not

3

the distribution was infringing and the response was

4

that it wasn't infringing?

5

MR. GUPTA:

Objection, goes beyond the

6

scope of the report, it lacks foundation,

7

and it's arguably work product.

8

waiver of our rights, I'll allow some

9

questioning on this.

But without

10

A.

No.

11

Q.

You're not aware of any instances?

12

A.

No.

13

Q.

Have you ever asked defense counsel if such

16

Q.

Did you take a sample, a subsample of the

17

1750 sample files that was random and look at those to

18

see if you had any opinion as to whether or not

19

Mr. Zebrak's opinions as to the infringement status was

20

correct?

21

A.

No, I did not.

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5

Q.

But sitting here today, you would not add

6

any -- if I'm understanding you correctly, you would

7

not add any files to the list of those that you believe

8

Mr. Zebrak classified erroneously in terms of its

9

infringement status, other than the ones that are

10
11

listed in your rebuttal report?
A.

As I sit here today, I don't have knowledge

12

of other files where I am satisfied enough, specific

13

files where I'm satisfied enough with my analysis to

14

come to a definite conclusion on that.

15

classes of files where I have concerns, but because of

16

the limitations of time and because, you know, I was

17

largely working on this, you know, under those

18

limitations of time, I simply wasn't able to

19

investigate all of them, and so I don't have specific

20

examples sitting here today, no.

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1

A.

It's -- the name escapes me, but I think

2

it's the largest one that I looked at in particular is

3

the largest adult films organization, I believe, and it

4

has a program, which I don't have it in front of me, I

5

would be delighted, I can easily retrieve it, which

6

attempts to incentivize sites that are streaming

7

important video sites to apply digital fingerprinting

8

akin to content ID.

9

And the business model is that if they do

10

this when an infringing video is found, an

11

advertisement will be inserted into the video and the

12

revenue will flow to the site, which I thought it was

13

fascinating, because it many ways it mirrors what was

14

going on in the YouTube litigation.

15

Q.

Digital fingerprinting is very widespread,

18

Q.

Have you reviewed any of these files that

19

appear to be pornographic?

20

A.

No.

21

Q.

Have you reviewed any of the links for

22

these files that Mr. Zebrak provided for any of the

23

files that appear to be pornographic?

24

A.

When you say reviewed the links?

25

Q.

Have you clicked on the links?

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1

A.

No, I have not.

2

Q.

Are any of these files short promotional

3

clips?

4

A.

I do not know.

5

Q.

You don't know.

6
7

So you've hypothesized that some could be
short promotional clips, right?

8

A.

Yes.

9

Q.

But you don't know if any of them are?

10

A.

I've hypothesized -- I think what I said in

11

general is for the reasons stated in the report, it's

12

very hard to classify the content with great certainty.

13

Q.

But if there are in fact no or very few

14

short promotional clips, then what is the issue in this

15

study with classifying short promotional clips?

16

A.

Well, what I was trying to discuss was not

17

short promotional clips alone but rather a

18

concatenation, a collection of short attempts of error.

19

Short promotional clips was just one.

20

trying to drive content of a particular web site

21

through a watermark.

22

Another one was so-called orphan porn.

Another one was

Another one was fair use.

23

My point was simply that every time one

24

adds one of these additional sources of complexity,

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7

Q.

Do you have any knowledge of what -- how

8

many of the files that were actually in the study you

9

would classify as being teasers?

10
11

A.

No.

As I said, I didn't examine any of the

files in the study.

12

Q.

And do you have any knowledge of any files

13

that appear to be -- to you to be orphan works of any

14

sort?

15

A.

As I said, I didn't examine any of the

16

files in the study.

17

out that there were particular reasons why this kind of

18

content is extremely hard to classify.

19
20
21

Q.

What I tried to do was to point

Do you know whether or not there are any

"user generated remixes" of pornography in the sample?
A.

I note that Mr. Zebrak classified as

22

noninfringing at least one piece of work that had the

23

designation amateur.

24

was a user-generated remix or not.

I don't know whether or not that

25

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not the word amateur in the title of a pornographic

2

film indicates whether or not it is in fact user

3

generated and authorized for public distribution?

4

MR. GUPTA:

5
6

A.

Objection, it's vague.

I think in general, a file name is simply

not an adequate proxy for title.

I think that it marks

7

10

Q.

Do you have any reason to believe that

11

Mr. Zebrak did not look closely at files to make an

12

assessment of whether he thought the pornographic files

13

distribution of the pornographic tiles would be a fair

14

use?

15

A.

I don't know whether he did or not.

I note

16

that in other portions of this study, I was concerned

17

that he had not carried out a full fair use analysis.

18

So to the extent that concern carries over, it would be

19

replicated here.

20

Q.

There's nothing specific about the

21

pornographic files for which you think Mr. Zebrak did

22

not engage in a full, fair use analysis?

23

A.

I simply don't know.

My point was that in

24

this class, it was going to be harder to classify, and,

25

thus, the confidence interval will have highly likely

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1

infringing was going to be harder to reach.

2

As I note in the study, I do not claim that

3

it is clear error to include the pornographic files.

4

What I say is I would either have excluded them or I

5

would have gone through a procedure of doing

6

confirmation that they were in fact infringing.

7

Q.

Well, if the reason why there needs to be a

8

greater, you believe, that there should be more steps

9

along the way to confirmation is that many of the files

10

have certain characteristics, such as being short clips

11

or teasers, why, as a category, do you believe that all

12

pornographic files should have been subject to this

13

heightened level of confirmation, even if they weren't

14

short clips or teasers?

15
16

MR. GUPTA:

Objection, it's

complicated and confusing, it's vague.

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2

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

22

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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1

have problems with extrapolating the study, but this,

2

for the purposes of argument, I took their

3

classifications and accepted them.

4

Q.

Well, no, these numbers themselves you're

5

taking a different variable, the paid for variable,

6

right?

They didn't analyze that?

7

A.

That is correct.

8

Q.

And you're saying that you can take that

9

variable, calculate this conversion rate, which is

10

based on this other variable daily download total that

11

they did not consider?

12

A.

I believe they did consider.

13

Q.

Daily download total?

14

A.

Well, they looked at daily downloads,

15

excuse me.

16

MR. GUPTA:

Objection, this line of

17

questioning is obviously somewhat confusing

18

and complicated.

19
20

BY MR. POZZA:
Q.

I'm trying to figure out if these

21

conversion rates that you claim for different

22

categories of infringing and noninfringing content, are

23

you claiming that those conversion rates would

24

extrapolate to the entire population of files or

25

downloads on Hotfile?

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1
2
3

MR. GUPTA:

Objection, to the extent

it seeks a statistical analysis.
A.

What I'm claiming is that if Dr. Waterman

4

and Mr. Zebrak were correct about, first of all, the

5

statistical representativeness of their study, about

6

which I raise questions, and also the accuracy of it,

7

about which I raise questions, but if we assume that

8

for the sake of argument they are claiming that it

9

provides a generalizable representative picture of

10

Hotfile, if they take their assumption, the assumption

11

they make in their report, then I would expect that the

12

paid for could be extrapolated to the rest of Hotfile.

13
14
15

Q.

Would it be extrapolated in the way that

you have done here?
A.

I think a court might extrapolate it in any

16

number of ways.

17

and they are presenting estoppel from which conclusions

18

can be extrapolated, then their sample and their

19

classifications with this one extra piece of

20

information, namely, the sample paid for is a

21

percentage of daily download totals.

22
23
24
25

Q.

I think if their argument is correct,

Is that based on your understanding of the

statistical methods that Dr. Waterman employed?
A.

It's based on my understanding that

Dr. Waterman claims that his study is a statistically

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1

representative picture of Hotfile.

2

assuming that for the sake of argument.

3

actually accept that it's a statistically

4

representative picture, but assuming it for the sake of

5

argument, then one would be able to extrapolate.

6
7

Q.

As I said, I'm
I don't

But to be clear, Dr. Waterman does not

analyze this paid for variable, right?

8

A.

That is correct.

9

Q.

Or this conversion rate variable?

10

A.

That is correct.

11

Q.

Do you have any technical knowledge as to

12

whether Hotfile is physically suitable for storage of

13

large files, large amounts of files?

14
15
16

MR. GUPTA:
A.

Objection, that's vague.

You said two different things, large files

and large amounts of files.

17

Q.

I meant large amounts of files.

18

A.

So you mean large numbers of files?

19

Q.

True, large numbers of files, large numbers

20
21

of files.
A.

I assume, based on the fact that hundreds

22

of millions of files, a hundred million files were

23

listed in the never downloaded category, that sounds

24

like a large number of files to me.

25

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SIGNATURE PAGE

1

you.

2
3

(Whereupon the deposition was
concluded at 5:43 p.m.)

4

(Signature reserved.)

5

~ßt¡

6

7

Digitally signed by James Boyle
ON: cn=James Boyte, 0, OU,
email=[e-mail],c=US
Date: 2012.01.31 15:55:27 -05'OQ'

JAMES BOYLE

8

9

10

11 SUBSCRIBED AND SWORN to before me this
12

day of

, 2012

13
14

15
16

NOTARY PUBLIC

17

18 My Commission expires:
19

20
21
22

23
24

25
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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

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25

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