Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
449
NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Version of the Declaration of Andrew Leibnitz and Exhibits Thereto Filed In Support of Defendants' Opposition to Plaintiffs' Motion to Strike Portions of Boyle, Cromarty and Titov Declaration (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)(Munn, Janet)
Exhibit 15
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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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pen?
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MR. PLATZER:
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Let's go off the record.
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MR. SCHOENBERG:
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record.
Yeah, we can go off the
I'm sorry about that.
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Not at all.
THE VIDEOGRAPHER:
The time is 11:34, and
we're off the record.
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(Recess taken.)
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THE VIDEOGRAPHER:
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and we are on the record.
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MR. PLATZER:
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Q
The time is 11:35 a.m.,
Okay.
Dr. Cromarty, that's a long answer.
I
13
believe in the first part of your answer you discussed
14
things that you read in Warner's internal e-mails;
15
correct?
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17
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A
That certainly was included in my answer,
yes.
Q
Okay.
And the summary that you gave there,
19
that wasn't -- that wasn't your expert opinion about
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the e-mails.
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understood the e-mails to mean; right?
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23
24
25
A
That was just you observing what you
I'm not certain that's an accurate
characterization, for several reasons.
The first is the one I answered with, which
is there may be fine, legal distinctions between what
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is and is not an expert opinion that I don't
2
appreciate as a nonattorney.
3
Whether I have the opinion that
isn't
4
capable of identifying infringing content as a
5
technical tool, or whether I'm citing the executive
6
director of anti-piracy for the plaintiff on that
7
matter is kind of a technical fine point of -- of law
8
that I don't claim to be expert on.
9
If I were speaking colloquially, not with
10
respect to expert obligations and rights and
11
responsibilities, and not with respect to that legal
12
question, at a minimum, I would say that the data
13
provided by plaintiffs support my own opinion, and it
14
may also rise to an opinion -- the level of an opinion
15
has been, at a minimum, described by its own
16
users as incapable of being used, or more generally
17
that such tools are incapable of being used to
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identify infringement.
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20
Q
include an opinion as to the adequacy or accuracy of
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Your expert report in this case does not
; does it?
A
To answer that, I would want to have a copy
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of my report to review, and that hasn't been provided
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to me yet today.
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Q
Why don't we mark that as an exhibit.
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Mark this as Cromarty 1.
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(Document marked Cromarty Exhibit 1
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for identification.)
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THE WITNESS:
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And just for the record, I understand your
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question to be pending; is that correct?
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Thank you.
MR. PLATZER:
Q
That's correct.
And, for the record, the -- what's been
marked as Cromarty Exhibit 1 is a document, not Bates
10
numbered, but bears the -- the cover sheet saying
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"Expert Report of Andrew S. Cromarty, Ph.D.," and is
12
dated November 18th.
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14
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A
Right, and I would note also for the record
that this is not my complete report.
So what we have here, at most, is what I
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refer to as the body of my report.
17
include all of the attachments and appendices and
18
other material, and it does not include the referenced
19
materials, including the documents, the Bates numbered
20
documents that I just referred to.
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It does not
So in that regard, at a minimum, it's
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incomplete.
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accept, for purposes of the deposition today, that it
24
is otherwise a true and accurate copy of the main body
25
of my report.
But with your representation, I will
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Q
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That's true.
Carrying three copies of the entire thing,
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with appendices, on the plane to San Francisco would
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have been rather heavy.
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A
I understand.
363 pages of documents plus
the Bates numbered documents, yes.
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Q
Why don't I withdraw the pending question --
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A
Okay.
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Q
-- and just ask a foundational one here.
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Is -- is -- Cromarty Exhibit 1, is this a --
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the body -- excluding appendices, is the body of the
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report that you prepared?
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A
I'm accepting your representation that it is.
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It appears to be, and I have no reason at present to
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doubt that.
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Q
In this report, do you express an
expert opinion as to the accuracy of the
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Okay.
MR. SCHOENBERG:
Objection; vague and
ambiguous.
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THE WITNESS:
I think the best answer is yes.
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MR. PLATZER:
Okay.
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Q
Can you tell me where in the report that
opinion is located?
A
Well, first let me tell you the nature of it,
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and then I'll be happy to look for it.
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The nature of it is that I have opined that
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it is for structural and information theoretically not
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possible, and also given the current state of the art,
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for any such tool to reliably answer the question of
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infringement.
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capable of doing that, and I understand
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such a tool.
That a technical tool alone is not
to be
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So, in this regard, I believe the answer is
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yes, I've provided that opinion merely by virtue of
11
12
falling in the category that I've identified as
not capable of providing those answers.
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Now, I have a recollection that I did cite
14
in here, and I'd like to take a look at it and
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see if I need to augment my answer in any way.
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Q
Go ahead.
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A
If you -- if you believe you know the
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reference, just for efficiency, I'm happy to have you
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tell me where I cited.
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through.
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Otherwise, I'd have to look
It's my recollection it's towards the end.
Q
That is my recollection as well.
And to the
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extent it helps shorten your review of Cromarty
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Exhibit 1, I believe you have discussion of Warner
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beginning around paragraph 198.
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matter and is noted in Appendix H.
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to support the technical decision are not part of the
3
Internet handling of files generally and file
4
transfers and file sharing services."
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In any case, data
In particular, that's the last part of
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paragraph 198.
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expressed the specific expert opinion that -- that
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these tools, including the class of tools of which
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And so there and throughout I've
is a member, are not capable of answering the
10
question of infringement, and the Bates numbered
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documents also, in my view, directly support that
12
finding.
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Just so that we're absolutely clear and to
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avoid a possible objection, therefore my answer is
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yes, it is my view that I have included
16
Q
Have you used the
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A
I have not used the
in this.
software yourself?
software, and in my
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professional and expert judgment, it's not necessary
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for me to use it in order to reach my opinion.
20
Q
Can you tell me how it works?
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A
Probably not in considerable detail, because
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the available data about all these systems is very
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carefully kept secret for a variety of reasons by the
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-- the sellers, the marketers of these systems, and
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also by their users.
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For example, you'll notice that even in the
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produced material, information written about
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itself was redacted by the plaintiffs before
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production.
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secret and a variety of other reasons.
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So it's highly secret, probably for trade
So it's generally not going to be possible,
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without a review of their source code software, to
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understand all the details of their system, but
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generally it's my understanding from the
10
correspondence of plaintiff that list of files is
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provided to or through
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combination of service and tool, it's employed to
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identify potentially infringing content and take it
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down or request takedowns of that material.
15
, and that as some
And in one detailed Bates numbered e-mail
16
discussion between employees of plaintiff, there is a
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specific roughly 12-point itemization of various
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features of the analysis that
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other tools might perform, and a specific evaluation
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of which of those might or might not be useful in
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performs and that
versus a competing tool; and that list provides
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some insight into what
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beliefs of plaintiff.
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may be doing based on the
Again, I would emphasize no one can really
know, outside of
, what the tool does, and this
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is a considerable difficulty in the industry as I've
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already opined in my report.
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Q
And is it fair to say that the documents that
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are listed in your appendix to your report constitute
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the entire universe of documents that you reviewed
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regarding
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expressed in your report?
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9
A
in order to form your opinion
With the proviso that it's always possible
that there is an additional document that was produced
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to me that, for purely incidental or accidental
11
reasons that I neglected or through some editing
12
error, was not provided in my report.
13
And, of course, at any time we determine
14
that's the case, I would be delighted to provide any
15
additional information about any sources that I relied
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on or referred to.
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best of my ability to recall, my appendix list is
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complete with respect to the
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referred to or reviewed.
20
Q
But as I sit here today, to the
documents that I
And other the -- other than the list of
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appendix documents regarding
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that you requested further regarding
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conduct your analysis and form your expert opinions
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for this report?
25
A
, is there anything
in order to
Generally, the answer is no, and this is, I
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think, really the question you asked and I answered
2
earlier this morning with respect to having requested
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additional documents.
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a moment ago, that in my judgment, there is more than
5
enough information already provided here to reach the
6
opinions that I have and that I have put into my
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report.
But I would also note, as I did
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Of course, in addition, I have my own
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expertise, and as I've said before, I rely on that as
10
well.
11
Q
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I'd like to direct your attention to
paragraph 198 --
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A
Yes.
14
Q
-- of your report here, and you note toward
15
the end of that paragraph that ownership and
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permission is a nontechnical manner.
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A
Yes.
18
Q
You'd agree that, leaving aside how the tools
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work, it's not really a technical issue whether or not
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a particular piece of content is authorized.
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something that can be communicated through means other
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than through technology?
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MR. SCHOENBERG:
That's
Objection; incomplete
hypothetical; calls for a legal conclusion.
THE WITNESS:
So one difficulty I have with
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that question is that it is my perception, as a
2
practitioner in the field, that there are unresolved
3
questions of law alone as to this matter, so it may
4
not be a fact question whether or not authorization
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has been granted.
6
questions that are currently unresolved with respect
7
to case law as to whether authorization has been
8
granted or is necessary or not required when one is in
9
possession of a digital asset.
10
11
There may be, in addition, legal
So I think it's much broader than your
question implies.
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MR. PLATZER:
Q.
Well, I'm going to give you
13
a hypothetical.
14
owner is intentionally uploading a piece of their
15
content to Hotfile.
I want you to assume that a copyright
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A
Okay.
17
Q
Wouldn't it be true, in that hypothetical,
18
that Hotfile could acquire awareness of the authorized
19
nature of the content through nontechnical means, such
20
as through cooperation with the copyright owner?
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MR. SCHOENBERG:
Objection; incomplete
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hypothetical; lack of foundation; calls for
23
speculation.
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THE WITNESS:
I understand your question to
be, is it possible that -- to concretize this -- that,
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for the sake of an example, Warner and Hotfile could
2
have a conversation in which Warner uploads data to
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Hotfile servers and then Warner communicates their
4
opinion as to the authorization of that content.
5
6
7
Is it possible for a conversation to occur?
Yes, it's possible for a conversation to occur.
Is it -- is it determinative that that
8
provides authorization?
9
almost certainly no, and the reason is that it is not
I believe the answer is
10
possible for Hotfile to independently vet the
11
allegation or assertion as to either infringement or
12
ownership and authorship of any particular asset.
13
Now, that is a -- a legal matter that depends
14
on a very complex web of interactions and ownership
15
and rights management that is well beyond the purview
16
of Hotfile to vet, and upon which the representation
17
of any one individual cannot be reliable.
18
And I will give you a specific example of
19
this, which is, when I was working as the CTO of the
20
principal file sharing company that was engaged by
21
substantially all the plaintiffs to share their own
22
content among themselves and between these companies,
23
that I came to learn that there's an extremely complex
24
rights management culture within the -- the
25
entertainment industry, specifically in the film
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industry and probably also extending to TV and other
2
parts of the entertainment, the commercial
3
entertainment industry, an individual asset may have
4
as many as 20 to 30 individual rights into which it is
5
divided.
6
As a -- as a -- as an example, there might be
7
a right to show the film on Tuesdays in Hungary, and
8
the rights is -- is a -- an area where it is so
9
balkanized that there are companies in this industry
10
that specifically exist to manage just the rights or
11
to produce rights management systems and software.
12
And in that context, my answer is no, it is
13
not possible for a Hotfile to reliably vet and receive
14
and process information based simply on a claim from a
15
plaintiff in this suit or any other possible source of
16
information.
17
So on the one hand, yes, they can have a
18
conversation.
19
reliable source of information, even if it's a large
20
company of whom we have heard.
21
On the other hand, it's not -- it's not
And I'll finally close this answer by saying,
22
again, I think on top of this there are additional
23
legal, open questions where there're, apparent to me,
24
unsettled matters of case law as to what constitutes
25
authorization.
And as long as those are open, even if
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all other questions could be answered, it's difficult
2
and impossible, probably impossible, for a company in
3
Hotfile's position to receive information and reliably
4
act on it.
5
Now, this is not to say that they don't
6
receive that information.
7
act on it, and I have given the opinion in my report
8
that they make what I judge, as a professional in this
9
field, are commercially reasonable best efforts to do
10
It's not to say they don't
so.
11
But with this context, the answer to your
12
question, I think, is a resounding no as to a
13
hypothetical.
14
15
Q
You're familiar with the YouTube website;
right?
16
A
Generally, yes.
17
Q
And you're aware that on YouTube there are
18
companies that posts content through their own
19
official company accounts; right?
20
A
I'm aware that there has been reported in the
21
press an increasing set of relationships between
22
Google, the owner of YouTube, and entertainment
23
companies.
24
with respect to establishing contractual
25
relationships, and others appear to have been lawsuits
Some of those appear to me to have been
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So this goes to your question as well.
So
2
even in the case of your hypothetical, I think, to
3
summarize, on the one hand we have that Warner is
4
responsible for the account and they've made
5
agreements with respect to it.
6
it's not entirely reliable to a company in Hotfile's
7
position.
8
unreliability and uncertainty, to simply do the best
9
they can, and that includes under the DMCA Safe
10
11
But on the other hand,
And they have to, in the face of that
Harbors, and also as a -- as an operating business.
Q
Okay.
Dr. Cromarty, you're using the term
12
re- -- terms "reliable" and "reliability" a lot in
13
your answers.
14
15
16
Can you explain to me what you mean when you
use those words?
A
Well, there are probably several uses of
17
that, depending on the question one is faced with in
18
business.
19
scientific questions, and I've used it with respect to
20
some business practice questions.
21
22
23
So I have used it with respect to some
I could try to give you several answers, or
perhaps you have a more specific question.
Q
Well, it's precisely because the term has
24
some variety of meanings.
25
which meaning you intend in each answer that you give.
I'm trying to understand
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So let's first talk about the answer that you
2
just gave to my question about whether or not, in my
3
hypothetical, Hotfile could use the fact that the
4
Vampire Diaries files were uploaded from the official
5
Warner account as an indication that the files were
6
uploaded were -- were authorized to be there.
7
And I believe, and you can correct me if this
8
is an unfair characterization of your testimony, you
9
said that it would not be reliable for Hotfile to rely
10
upon the fact that an official account was used for
11
the uploads; is that a fair characterization?
12
13
14
15
16
A
Well, I won't disagree with it for the
purpose of you allowing your question certainly.
Q
In what sense did -- did you intend the
meaning of the word "reliable" in that answer?
A
Well, it's, I think, an implication of your
17
having posed the hypothetical that you're inquiring
18
about possible business behavior that Hotfile might
19
engage in, and so Hotfile has to make decisions about
20
the business behavior that they will engage in based
21
on the information that's available to them, and there
22
becomes a question when they are working in this
23
complex domain where there are financial and legal
24
implications of any action they take and any choice
25
they make, what their sources of data are in their
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2
decision-making process.
And so one form of the use of the word
3
"reliability," with respect to making decisions that
4
are fraught with legal and financial implications, and
5
certainly we see in the existence of this suit the --
6
the criticality of -- of those decisions and therefore
7
of the data sources.
8
9
And, in fact, to the extent that the
defendant's countersuit has merit, and I'm not making
10
a judgment on that, I'm assuming that's for a trier of
11
fact to do, but to the extent that it has merit and
12
even to the extent that the underlying data that have
13
been presented by the defendants as to -- again, I
14
believe it's plaintiff Warner -- to Warner's takedown
15
issuances of a content they did not own is correct.
16
What we have is that -- that the plaintiff,
17
this plaintiff, has, over time, taught Hotfile that
18
they are not a reliable partner with respect to what I
19
believe is their SRA account.
20
So one thing we learn from this is that when
21
one is in business and making decisions, that the
22
interactions one has with a partner teach whether or
23
not that partner is a good source of information, is a
24
good partner, is providing honest and true information
25
and so forth.
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CERTIFICATE OF REPORTER
2
3
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I, ANDREA M. IGNACIO HOWARD, hereby certify
5
that the witness in the foregoing deposition was by me
6
duly sworn to tell the truth, the whole truth, and
7
nothing but the truth in the within-entitled cause;
8
9
That said deposition was taken in shorthand
10
by me, a Certified Shorthand Reporter of the State of
11
California, and was thereafter transcribed into
12
typewriting, and that the foregoing transcript
13
constitutes a full, true and correct report of said
14
deposition and of the proceedings which took place;
15
16
17
That I am a disinterested person to the said
action.
18
19
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IN WITNESS WHEREOF, I have hereunto set my
hand this 21st day of December 2011.
21
22
23
_______________________________________
ANDREA M. IGNACIO HOWARD, RPR, CCRR, CLR, CSR No. 9830
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