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

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believe in the first part of your answer you discussed

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things that you read in Warner's internal e-mails;

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correct?

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A

That certainly was included in my answer,

yes.
Q

Okay.

And the summary that you gave there,

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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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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

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appreciate as a nonattorney.

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Whether I have the opinion that

isn't

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capable of identifying infringing content as a

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technical tool, or whether I'm citing the executive

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director of anti-piracy for the plaintiff on that

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matter is kind of a technical fine point of -- of law

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that I don't claim to be expert on.

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If I were speaking colloquially, not with

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respect to expert obligations and rights and

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responsibilities, and not with respect to that legal

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question, at a minimum, I would say that the data

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provided by plaintiffs support my own opinion, and it

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may also rise to an opinion -- the level of an opinion

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has been, at a minimum, described by its own

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users as incapable of being used, or more generally

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that such tools are incapable of being used to

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identify infringement.

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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

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numbered, but bears the -- the cover sheet saying

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"Expert Report of Andrew S. Cromarty, Ph.D.," and is

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dated November 18th.

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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.

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include all of the attachments and appendices and

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other material, and it does not include the referenced

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materials, including the documents, the Bates numbered

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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

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is otherwise a true and accurate copy of the main body

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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

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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

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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

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Internet handling of files generally and file

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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

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question of infringement, and the Bates numbered

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documents also, in my view, directly support that

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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

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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.

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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

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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.

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, and that as some

And in one detailed Bates numbered e-mail

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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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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

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reasons that I neglected or through some editing

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error, was not provided in my report.

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And, of course, at any time we determine

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that's the case, I would be delighted to provide any

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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.

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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?

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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

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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

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enough information already provided here to reach the

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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

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well.

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Q

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I'd like to direct your attention to

paragraph 198 --

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A

Yes.

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Q

-- of your report here, and you note toward

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the end of that paragraph that ownership and

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permission is a nontechnical manner.

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A

Yes.

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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

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practitioner in the field, that there are unresolved

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questions of law alone as to this matter, so it may

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not be a fact question whether or not authorization

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has been granted.

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questions that are currently unresolved with respect

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to case law as to whether authorization has been

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granted or is necessary or not required when one is in

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possession of a digital asset.

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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

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a hypothetical.

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owner is intentionally uploading a piece of their

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content to Hotfile.

I want you to assume that a copyright

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A

Okay.

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Q

Wouldn't it be true, in that hypothetical,

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that Hotfile could acquire awareness of the authorized

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nature of the content through nontechnical means, such

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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

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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

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have a conversation in which Warner uploads data to

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Hotfile servers and then Warner communicates their

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opinion as to the authorization of that content.

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Is it possible for a conversation to occur?
Yes, it's possible for a conversation to occur.
Is it -- is it determinative that that

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provides authorization?

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almost certainly no, and the reason is that it is not

I believe the answer is

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possible for Hotfile to independently vet the

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allegation or assertion as to either infringement or

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ownership and authorship of any particular asset.

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Now, that is a -- a legal matter that depends

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on a very complex web of interactions and ownership

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and rights management that is well beyond the purview

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of Hotfile to vet, and upon which the representation

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of any one individual cannot be reliable.

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And I will give you a specific example of

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this, which is, when I was working as the CTO of the

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principal file sharing company that was engaged by

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substantially all the plaintiffs to share their own

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content among themselves and between these companies,

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that I came to learn that there's an extremely complex

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rights management culture within the -- the

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entertainment industry, specifically in the film
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industry and probably also extending to TV and other

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parts of the entertainment, the commercial

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entertainment industry, an individual asset may have

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as many as 20 to 30 individual rights into which it is

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divided.

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As a -- as a -- as an example, there might be

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a right to show the film on Tuesdays in Hungary, and

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the rights is -- is a -- an area where it is so

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balkanized that there are companies in this industry

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that specifically exist to manage just the rights or

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to produce rights management systems and software.

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And in that context, my answer is no, it is

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not possible for a Hotfile to reliably vet and receive

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and process information based simply on a claim from a

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plaintiff in this suit or any other possible source of

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information.

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So on the one hand, yes, they can have a

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conversation.

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reliable source of information, even if it's a large

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company of whom we have heard.

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On the other hand, it's not -- it's not

And I'll finally close this answer by saying,

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again, I think on top of this there are additional

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legal, open questions where there're, apparent to me,

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unsettled matters of case law as to what constitutes

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authorization.

And as long as those are open, even if
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all other questions could be answered, it's difficult

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and impossible, probably impossible, for a company in

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Hotfile's position to receive information and reliably

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act on it.

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Now, this is not to say that they don't

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receive that information.

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act on it, and I have given the opinion in my report

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that they make what I judge, as a professional in this

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field, are commercially reasonable best efforts to do

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It's not to say they don't

so.

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But with this context, the answer to your

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question, I think, is a resounding no as to a

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hypothetical.

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Q

You're familiar with the YouTube website;

right?

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A

Generally, yes.

17

Q

And you're aware that on YouTube there are

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companies that posts content through their own

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official company accounts; right?

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A

I'm aware that there has been reported in the

21

press an increasing set of relationships between

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Google, the owner of YouTube, and entertainment

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companies.

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with respect to establishing contractual

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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

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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

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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

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re- -- terms "reliable" and "reliability" a lot in

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your answers.

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Can you explain to me what you mean when you
use those words?
A

Well, there are probably several uses of

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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.

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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

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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

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Vampire Diaries files were uploaded from the official

5

Warner account as an indication that the files were

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uploaded were -- were authorized to be there.

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And I believe, and you can correct me if this

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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

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the uploads; is that a fair characterization?

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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

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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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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

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and so forth.
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CERTIFICATE OF REPORTER

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I, ANDREA M. IGNACIO HOWARD, hereby certify

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that the witness in the foregoing deposition was by me

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

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nothing but the truth in the within-entitled cause;

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That said deposition was taken in shorthand

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by me, a Certified Shorthand Reporter of the State of

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California, and was thereafter transcribed into

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typewriting, and that the foregoing transcript

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constitutes a full, true and correct report of said

14

deposition and of the proceedings which took place;

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That I am a disinterested person to the said
action.

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

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

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