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

Filing 426

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 425 Reply to Response to Motion,, >>PLAINTIFFS' NOTICE OF FILING PUBLIC REDACTED VERSIONS OF REPLY DECLARATIONS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT<< (Attachments: # 1 Affidavit Reply Dweclaration of Jennifer V. Yeh in Support of Plaintiffs' Motion for Summary Judgment (public redacted version), # 2 Exhibit 151 to Declaration of J. Yeh, # 3 Exhibit 152 to declaration of J. Yeh, # 4 Exhibit 153 to Declaration of J. Yeh, # 5 Exhibit 154 to declaration of J. Yeh, # 6 Exhibit 155 to Declaration of J. Yeh, # 7 Exhibit 156 to declaration of J. Yeh, # 8 Affidavit Reply Declaration of Dr. Ian Foster in Support of Plaintiffs' Motion for Summary Judgment (public redacted version), # 9 Exhibit A to Declaration of I. Foster, # 10 Exhibit B to Declaration of I. Foster, # 11 Affidavit Reply Declaration of Dr. Richard Waterman in Support of Plaintiffs' MSJ (public redacted version))(Stetson, Karen)

Yeh Exhibit 152

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF FLORIDA

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MIAMI DIVISION

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DISNEY ENTERPRISES, INC.,

TWENTIETH CENTURY FOX FILM

Case No.
11-20427

CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP

COLUMBIA PICTURES INDUSTRIES
INC., and WARNER BROS.
ENTERTAINMENT, INC.,

Plaintiffs,

vs.

HOTFILE CORP., ANTON TITOV,
and DOES 1-10,

Defendants.

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HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
DEPOSITION OF DANIEL S. LEVY, PH.D.
SAN FRANCISCO, CALIFORNIA
TUESDAY, JANUARY 17, 2012

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REPORTED BY:

CYNTHIA MANNING, CSR No. 7645, CLR, CCRR
JOB NO. 45587

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January 17, 2012
9:04 a.m.

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Deposition of DANIEL S. LEVY, PH.D.,

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taken on behalf of Plaintiffs, at 235 Montgomery

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Street, 17th Floor, San Francisco, California,

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before Cynthia Manning, Certified Shorthand

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Reporter No. 7645, Certified LiveNote Reporter,

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California Certified Realtime Reporter.

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APPEARANCES:
FOR PLAINTIFFS:
JENNER & BLOCK
BY: DUANE POZZA, ESQ.
1099 New York Avenue, NW
Suite 900
Washington, DC 20001-4412
202.639.6000
[e-mail]
FOR DEFENDANTS:
FARELLA, BRAUN + MARTEL LLP
BY: ANDREW LEIBNITZ, ESQ.
235 Montgomery Street
17th Floor
San Francisco, California 94104
415.954.4400
[e-mail]
Also present:
Richard Waterman, Ph.D.
(Telephonically appeared except from 11:00
to 11:30 a.m. PST)

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the incidence of infringement occurring on

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Hotfile?

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A.

I've provided comments on the protocol

that Dr. Waterman has provided.
Q.

Have you designed such a protocol

yourself?
A.

No, I haven't been asked to design a

protocol to sample.
Q.

So you've not been asked to design a

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protocol to attempt to measure the incidence of

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infringement or noninfringement on Hotfile?

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A.

Not independent of the starting point

that Dr. Waterman has provided.

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Q.

But just to be clear -- this might be

implicit in your answer -- do you have an opinion
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on the level of infringement that is occurring on

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Hotfile?

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A.

I haven't been asked to design a sample

to do that, and I haven't done so.
Q.

Why not?
MR. LEIBNITZ:

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Objection; calls for

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speculation, outside the scope of the report.

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Object to form.
THE WITNESS:

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do so.

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to do so?

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I haven't been asked to

BY MR. POZZA:

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Is your question why I haven't been asked

Q.

Do you know why you haven't been asked

to do so?
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I -- I don't know all the possible

reasons why I haven't been asked to do so.
I do know that the time from

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probably would take -- in most situations you

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would want to have more time than that to do

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that.

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Q.

So for January 2011, do you have an

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opinion as to what percentage of the downloads of

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files on Hotfile were infringing?

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A.

Sorry, I just didn't hear the beginning

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Q.

Just taking the month of January 2011,

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do you have an opinion as to what percentage of

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the downloads of files on Hotfile were

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infringing?

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A.

I haven't been asked to come up with

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that number.

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percent of files that were infringing.

I don't have an opinion as to the

I have -- I don't have an opinion as to

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the percent of files that were infringing, but I

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do believe it is not the figure that Dr. Waterman

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produced, because I don't think his analysis was

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based on a scientific sample.

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Q.

Do you think it's higher or lower than

his figure?
A.

I think that is something that's

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knowable, it's something that could be done, and

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I don't think anyone in this matter has yet
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provided the study that would provide a

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scientific basis for that.

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Q.

So you have no reason to conclude

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whether or not the actual level of infringement

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is higher or lower than the number in

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Dr. Waterman's report?

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A.

Well, I think to -- at this point, you

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know, an opinion on that would be speculation.

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So there isn't information in the case that

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Dr. Waterman has collected that would allow

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someone to make that assessment.

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Q.

But the work could be done, you said?

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A.

I think a valid sample could be done.

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Q.

But you haven't done the work?

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A.

I haven't yet been asked to do that

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work, as I said in great part, because the time

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between the report that Dr. Waterman provided and

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the time of my report is relatively short for

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doing that.

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Q.

When were you retained in this case?

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A.

Sometime in -- I believe sometime in

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A.

The report Dr. Waterman provided

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doesn't have any downloads from 2010, so it would

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be speculation to provide an answer to that.

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Further analysis would have to be done and work

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would have to be done to come up with an answer

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for that.

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Q.

So you don't have an opinion as to

December 2010?
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I think, based on the information in

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the case, anyone who had -- Dr. Waterman or

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myself having an opinion on that would be

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speculation.

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Q.

Dr. Waterman clearly said that his

Do you have any reason to believe that

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the level of infringement in December of 2010 was

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higher or lower than the 90 percent figure that

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was provided in Dr. Waterman's report?

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A.

Again, it would be speculation to

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suggest whether it was higher or lower.

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information in the sample could have been done to

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analyze that, but Dr. Waterman didn't do that

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sample.

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Q.

And you have not done it either?

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A.

I have not done that analysis in the

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The

short time frame that I was provided since
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that it was the same as what is in Dr. Waterman's

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report.

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Q.

Do you have any reason to believe that

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it would likely fall outside of the margin of

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error of the infringement percentage that

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Dr. Waterman calculated for his sample in his

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report?

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A.

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I think it would produce a different

mean, and I think the confidence intervals would

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change, and I believe that Dr. Waterman's

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confidence intervals for downloads in general, as

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we're talking about now -- not big D downloads,

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as he analyzed in the big D download file, but

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small D, which I understand to be the more

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important issue in this case, along with other

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services -- that the confidence interval that he

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provided is not scientifically determined,

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because he didn't use a scientifically-drawn

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sample to determine that confidence interval for

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downloads in general.

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Q.

For all downloads in a month?

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A.

For downloads as being discussed as the

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Q.

Taking into account all those
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categories of downloads that were not included --

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recorded in the Dailydownload file, do you

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believe that the level of infringement in January

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2011 was higher than 90 percent?

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A.

I believe one can make hypotheses about

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that, and some factors would indicate that there

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would be a reason to think that there could be a

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change, a difference.
But in order to determine that, rather

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than just speculating on it, you have to do the

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study that provided the information needed to

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determine the rate of infringement for downloads

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in a given day or for a month or for any other

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time period or geography you wanted to analyze.

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Q.

Do you have any reason to believe that

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the number of infringing downloads in January

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2011, counting all downloads, is lower than 90

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percent?

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A.

Well, again, I could develop hypotheses

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about that that could be tested.

Countries are

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different.

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excluded -- just picking one -- and I haven't

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gone through and developed an overall perspective

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on it.

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are -- from the -- from the free downloads

On average, the countries in the

But the countries that are excluded

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include some very large poorer countries that

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might have very different downloading behavior,

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might use downloads in a very different way, may

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be spending more time storing files, may use it

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as a storage location.
There are all kinds of hypotheses that

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would -- would suggest that it could be that it's

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lower.
But in order to determine that you'd

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have to study it, as I've said many times, you'd

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have to capture the data and look at the data

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that you want to understand the behavior of,

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rather than speculate on it.

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Q.

Do you believe that users in countries

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with a lower GDP are less likely to download

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infringing content?

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A.

I -- it's possible that they're using

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Hotfile in a very different way and downloading

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different material due to language, due to

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economic conditions.

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possibilities.

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Q.

There are all kinds of

Have you studied any of those

possibilities?
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No.

I think they are things that could

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A.

Well, one of the aspects of the way

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they are paid is by looking at what's recorded in

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the Dailydownload file, but that does not mean it

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records all the downloads that occur in a day.

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It's just what they decide to keep there.
There are also other aspects of how

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affiliates are paid that have to do with other

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dimensions, such as conversion, file size, and

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other things.

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Q.

Right.
But the way that Hotfile determines how

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many downloads they're going to compensate the

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affiliate for is by looking at the download

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counts in the Dailydownload data as opposed to

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download counts in some other data?

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A.

Yes.

The Dailydownload file, it's my

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understanding, contains the counts that are used

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in that fairly complicated algorithm that is in

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the file size and conversion and other things.

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Q.

Right.
And that's part of the incentives that

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level of infringement on Hotfile?

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MR. LEIBNITZ:

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THE WITNESS:

Object to form.
I would -- again, as a --

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as -- that's something that could be analyzed,

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actually.

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which things changed and the pattern of

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infringement over time and see how they

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interacted.

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number of different ways.

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I mean you could look at the dates in

So you could analyze that in a

BY MR. POZZA:
Q.

But are you aware of any particular

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change in Hotfile's operations that you believe,

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based on your expertise, would have been likely

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to cause a change in the level of infringement on

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Hotfile prior to January 2011?

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A.

I think as a -- you know, a hypothesis,

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I think behaviors changed, possibly, over time in

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Internet use.

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could be investigated.

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the evidence and information from Hotfile, the

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Q.

So I think that is something that
And, you know, you'd take

Do you know of any evidence that the

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percentage of files that were downloaded that

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were infringing was lower at any point in time

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prior to January 2011 than 90 percent?
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MR. LEIBNITZ:

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THE WITNESS:

Object to form.
Again, you'd have to --

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you'd have to look at the data to determine that,

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or do some other study to do that.

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And Dr. Waterman hasn't done it and I
haven't done it.

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Q.

And a user potentially could provide

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two of those links to others to allow downloads

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of that file through two of the links but not the

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other three; correct?

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A.

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those links.

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Q.

But that is possible; correct?

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A.

Yeah, one of the infinite

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You could do a number of things with

possibilities.
Q.

And the three links that are not sent

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or distributed to other people, those would show

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up as records with zero downloads in the

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Uploaddownload table; correct?
MR. LEIBNITZ:

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Object to form,

incomplete hypothetical.
THE WITNESS:

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to know.

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I'd have to study it more

BY MR. POZZA:

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Q.

So sitting here today, are you aware of

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what percentage of the zero download file records

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are multiple URLs for files that have been, in

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fact, distributed?

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A.

I didn't -- I did not study that as a

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MR. POZZA:

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(Recess taken)

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We can take a break.

BY MR. POZZA:
Q.

Dr. Levy, are you aware of any dramatic

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change in Hotfile's operations prior to January

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2011 that would cause the level of infringement

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on Hotfile to increase?

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A.

The change in use, uploads and

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downloads, is large enough that there can be

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changes in behavior either direction.

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enough room and growth there that lots of things

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could be happening.

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Q.

There's

And are you aware of whether those

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changes in growth would be likely to increase the

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level of infringement on Hotfile over time?

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A.

You'd have to study that to know.

What

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I can say is there is enough change in the amount

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of activity that there could be many different

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types of users who are now using Hotfile and

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using them in different ways.

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Q.

So you haven't studied that?

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A.

I haven't -- I have not studied that at

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Hotfile.

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level of infringement on Hotfile in January of

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2010, would the January 2011 study be useful at

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all for estimating the amount of infringement in

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January 2010?

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A.
add to it.

In a different type of study it might
Not in this study.
You mean in this study?

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The January --

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the results from this study in 2011 provide us

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information about what happened in 2010?

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Q.

Yes.

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A.

In this study, it does not.

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Q.

If one had information about the level

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of infringement in January 2011 that one thought

Q.

We were talking about storage of files

on Hotfile before the break, and we were talking
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about what I termed zero download files.
Do you recall that?

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A.

Yes.

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Q.

And those are files for which there are

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no downloads recorded in the Uploaddownload

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table; is that correct?

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A.

That's what we were talking about.

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Q.

Have you been asked to do a further

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analysis to determine what percentage of those
files are uploaded just for storage?

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A.

I haven't been asked to do that.

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Q.

What further information would you need

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in order to determine what percentage of those

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files were uploaded just for storage?

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A.

Well, I don't know that I could list

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all the information that you would need.

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some of the information that we were talking

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about before would be needed; more information

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about excluded downloads for the features that

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the Uploaddownload file didn't have.

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But

You might be able to perform some

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analysis based on the log files to determine --

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to gather some more information on that.

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might take some sort of model-based analysis, not

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just straight sampling.
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I haven't thought about it, so -- I

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could think about it and I think I could design a

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sample and then related model-based analysis or

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other analysis to analyze that.

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Q.

Would it be a separate analysis based

on analyzing a separate set of data?
A.

You know, I don't know.

I just

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haven't -- I haven't thought about it.

I don't

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know what -- at the moment, you know -- what the

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best way to go about it would be.

And, you know,

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there may be multiple ways to go about it.
But I haven't been asked to develop

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that, so I'm not sure exactly how that would be

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done at the moment.

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Q.

Do you know what percentage of

Hotfile's premium users upload files at all?
A.

I did not analyze that for this report.

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Sorry.

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report.

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statements that I made.

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Q.

Yeah, I didn't analyze that for this
I don't think it was needed to make the
You talk about a potential major use of

Hotfile being the storage function; right?

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MR. LEIBNITZ:

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MR. POZZA:

Where is this?

Page 17.

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STATE OF CALIFORNIA

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:ss
COUNTY OF SAN MATEO

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I, CYNTHIA MANNING, a Certified Shorthand

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Reporter of the State of California, do hereby

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certify:

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That the foregoing proceedings were taken

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before me at the time and place herein set forth;

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that any witnesses in the foregoing proceedings,

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prior to testifying, were placed under oath; that

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a verbatim record of the proceedings was made by

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me using machine shorthand which was thereafter

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transcribed under my direction; further, that the

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foregoing is an accurate transcription thereof.

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I further certify that I am neither

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financially interested in the action, nor a

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relative or employee of any attorney of any of

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the parties.

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IN WITNESS WHEREOF, I have subscribed
my name this 19th day of January, 2012.

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_______________________________________

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CYNTHIA MANNING, CSR No. 7645, CCRR, CLR

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