Cambridge University Press et al v. Patton et al

Filing 144

NOTICE Of Filing Motion for Summary Judgment by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc. Notice of Filing Exhibits 11 through 20 (Attachments: # 1 Exhibit Exhibit 11 in Support of Plaintiffs' Motion for Summary Judgment, # 2 Exhibit Exhibit 12 in Support of Plaintiffs' Motion for Summary Judgment, # 3 Exhibit Exhibit 13 in Support of Plaintiffs' Motion for Summary Judgment, # 4 Exhibit Exhibit 14 in Support of Plaintiffs' Motion for Summary Judgment, # 5 Exhibit Exhibit 15 in Support of Plaintiffs' Motion for Summary Judgment, # 6 Exhibit Exhibit 16 in Support of Plaintiffs' Motion for Summary Judgment, # 7 Exhibit Exhibit 17 in Support of Plaintiffs' Motion for Summary Judgment, # 8 Exhibit Exhibit 18 in Support of Plaintiffs' Motion for Summary Judgment, # 9 Exhibit Exhibit 19 in Support of Plaintiffs' Motion for Summary Judgment, # 10 Exhibit Exhibit 20 in Support of Plaintiffs' Motion for Summary Judgment)(Rains, John)

Cambridge University Press et al v. Patton et al

Doc. 144 Att. 2

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ------------------------------x CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., and SAGE PUBLICATIONS, INC. Plaintiffs, v. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. ------------------------------x 1:08 Civ. 1425 ODE

DEPOSITION OF ROBERT B.K. DEWAR New York, New York December 8, 2009

Reported by: MARY F. BOWMAN, RPR, CRR JOB NO. 26341

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December 8, 2009 10:05 a.m.

Deposition of ROBERT B.K. DEWAR, held at the offices of King & Spalding, LLP, 1185 Avenue of the Americas, New York, New York, before Mary F. Bowman, a Registered Professional Reporter, Certified Realtime Reporter, and Notary Public of the States of New York and New Jersey.

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APPEARANCES: WEIL, GOTSHAL & MANGES, LLP Attorneys for Plaintiffs 767 Fifth Avenue New York, New York BY: TODD D. LARSON, ESQ. 10153

KING & SPALDING, LLP Attorneys for Defendants 1180 Peachtree Street, NE Atlanta, GA BY: 30309

STEPHEN M. SCHAETZEL, ESQ.

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IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the respective parties herein, that filing and sealing be and the same are hereby waived. IT IS FURTHER STIPULATED AND AGREED that all objections, except as to the form of the question, shall be reserved to the time of the trial. IT IS FURTHER STIPULATED AND AGREED that the within deposition may be sworn to and signed before any officer authorized to administer an oath, with the same force and effect as if signed and sworn to before the Court.

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DEWAR ROBERT B.K. DEWAR, called as a witness by the Defendants, having been duly sworn, testified as follows: EXAMINATION BY MR. SCHAETZEL: Q. Good morning, Professor Dewar. I am with King & My

name is Steve Schaetzel. Spalding.

Obviously you are in our New York

office here. We are here to take your deposition in matter of Cambridge V Patton, although that style has now changed to Mary Becker -- I am sorry, Mark Becker, who was more recently named president of Georgia State University. He is named in his official capacity. I

would like to get this marked as the first exhibit if I could. (Exhibit 1, Expert Report of Robert B.K. Dewar marked for identification, as of this date.) Q. Professor Dewar, I understand from

looking at the report that has been handed to you as Exhibit 1 for identification that you
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DEWAR have been deposed before. correctly? A. Q. Yes, yes. I presume that this will go very much Do I understand that

as any previous deposition has gone, but I will ask a question. If you don't understand my

question, please feel free to ask me to rephrase it. My purpose will be obviously to elicit

certain information and an understanding of what is in your report. made things mucky. A. Q. So don't hesitate if I have I do not mean to.

Fair enough. With reference to Exhibit 1, could you

confirm for the record, sir, that this is the expert report that was prepared and filed in this case in your name? A. It looks like. Obviously, I won't

take the time to read every word, but, yes, it is familiar, layout is the same, the page is the same. Q. A. Q. That, for example, is your signature? That is my signature, yes. Very well. Does your report contain a

statement of all the opinions that you have
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DEWAR formulated for this matter? A. Q. Yes, it does. What did you do to reach the opinions

that are in this report? A. Well, I -- there are a number of

materials that I consulted, the original complaint, the Crews report, and the deposition material that described the operation of the system. I mean, I had a pretty clear idea of

how the system worked and I confirmed that clear idea from those materials. I also went to the website although -there is a point where you can't go beyond without a password, but I went to that point. Q. Do I understand then, sir, that to

prepare this report, you reviewed the complaint, is that correct? A. Q. report? A. Q. correct? A. Right.
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That's correct. And you reviewed Professor Crews'

Yes, that's correct. And you reviewed certain depositions,

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DEWAR Q. A. Q. report. And you reviewed certain websites? That's correct, yes. If you would look at Exhibit B to your Rather than try and make this a memory

test, let's see if we can short-circuit, I think the only thing we may have missed is looking at some stipulations of fact. A. That's correct, I did look at those

stipulations of fact. MR. LARSON: Let -- just let him

finish his questions. THE WITNESS: Q. Sorry. Is there

That's quite all right.

anything else that you recall reviewing in preparation of this report that is not on this list at Exhibit B or appendix B? A. Q. No. No, this is complete.

Did you ask to review anything that is

not shown on this appendix or that was not given to you to review? A. Q. No. Did you think that there was anything

else you should have reviewed in order to form the opinions that are in your report?
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DEWAR A. Q. No. If we could look at page -- I believe

at the bottom if you use those numbers, Exhibit A-20, that page. MR. LARSON: I should probably note

for the record the Exhibit A20, those numbers at the bottom of the pages were added because this was submitted to the court as an exhibit to some disclosures to the court. Q. There is a heading "Legal Consulting."

Do you see that? A. Q. Yes. I would like to ask you about some of

the legal consulting work that's listed here. The first one, "National Data Communications versus St. Mary's Hospital," and it states, "Case involving software copyright issues. Trial in U.S. Federal Court, Texas, 1982." My first question is, is the year 1982 there a reference to the date the case was tried? A. Q. I believe so. Would it be safe to say that you did
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DEWAR the consulting work in the 1982 time frame? Would it have been much earlier than that? A. Q. No, it was in that time frame. What was the nature of the consulting

that you did in that matter? A. The St. Mary's had produced a hospital

data system and they had been previous customers of the other party and the other party was threatening to file a copyright infringement suit, never actually did file that suit, St. Mary's filed for a declaratory judgment. Q. the case? A. To examine the systems and give What was the role that you played in

opinions on whether there was infringement of copyright. Q. What did you do to determine whether

there was infringement of copyright? A. Looked at extensive documentation of

the software involved, I interviewed people who had worked on the software at St. Mary's, exact -- I actually examined some of the source code involved, a fairly deep examination of the two systems.
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DEWAR Q. What was the copyrighted material that

the other party contended was infringed? A. It was their software program for

hospital management. Q. A. Q. So, for example, was it source code? It was source code, yes. And was the -- I guess the owner of

the copyright was National Data? A. Q. Yes. What material did you look at that

belonged to National Data, as best you recall? A. It's a long time ago. I believe I had

access to their software under, you know, protective order. I certainly had access to a I don't know if I -- I

lot of their material.

can't for sure recall whether I actually examined their source code. Q. I believe I did.

Do you recall if you came to a

conclusion as to whether or not there was infringement? A. I definitely came to the conclusion

there was no infringement. Q. What was the basis for your conclusion

of no infringement?
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DEWAR A. access. program. The primary basis, there was no St. Mary's never had access to that I mean, they used the program, but

never had access to the source code, never had access to internal documentation, and to my satisfaction, they had developed their system entirely independently. Q. Do you recall if you found

similarities between the National Data copyrighted material and the St. Mary's source code that was accused of infringement? A. Not beyond what is dictated by

external requirements. Q. So there was some similarity but it

was dictated by external requirements? A. Q. court? A. Q. It did, yes. Was there an issue of fair use that Yes. Did your role include testifying in

you recall in that case? A. Q. A. No. There was no issue of fair use? There was no issue of fair use.
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DEWAR Q. If you look at the next item on

page -- we are referencing as Exhibit A20? A. Q. Yes. This is the Selden v. Honeywell case.

It appears from the description here there was no issue of copyright at all in this matter, is that correct? A. Q. None whatsoever. The next item, number 3, after the

cite, it is listed as Intergraph versus Bentley, 1998. Can you explain for me what the 1998

reference is? A. That's, to the best of my

recollection, was the date of the trial and the date at which, around which I did all the work for that. Q. In -- I guess before we move, one

further question, if we could back up to the first item, National Data Communications, I presume you were retained by the St. Mary's side of the case, is that correct? A. Q. That's correct. In the Intergraph versus Bentley case,

which side of the case were you retained by?
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DEWAR A. Q. A. Intergraph. What was your role in this matter? I was asked to give opinions on -- it

was more centered around the licensing issues, so I was asked to give technical opinions on the meaning of certain terms in the license agreement. Q. What, if any, role did you play in the

part that's listed here for the side of the case to the extent it involves software copyright? MR. LARSON: Objection to the form.

You can answer. A. ancillary. The copyright issues were really If the license wasn't valid, then

one could have concluded there was a copyright infringement, but the center of the case was on the licensing issues. Q. Did you address in this work whether

there was copyright infringement? A. then. No. I should add some clarification

Indirectly, yes, because the licensing,

if the license had been read one way, there was clearly a copyright infringement. If the

license was read another way, there wasn't a
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DEWAR copyright infringement. itself was not a focus. Q. Is it correct that if the license was But the copyright

found to be valid, there was no copyright infringement, and if the license was found to be valid, there was at least arguably copyright infringement? A. Correct. MR. LARSON: Just to -- did you mean

invalid in the second part of the question? A. Q. I think you meant invalid. I think I did mean invalid, thank you,

because the first part I obviously said was valid. A. Q. Yes. So in other words, if whatever the

defendant was doing was not licensed, it was arguably copyright infringement? A. Q. Yes. Correct, OK. What was the nature of

the testimony that you were asked to provide as it pertained to licensing? A. The specific issue was what it meant

for one program to use another, a rather vague
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DEWAR term in the license that was the focus of the case. Q. What was Intergraph's position as to

whether or not one program used another under the terms of that license agreement? A. Intergraph's position was that the one

program was not using the other. Q. Did you give an opinion as to whether

or not one program was or was not using the other program? A. Q. A. I did. What was that opinion? That it wasn't using it in the sense

of the license agreement. Q. Did you work in -- did your work in

that matter include testifying in court? A. Q. that case? A. Q. this list. A. Q. Yes. GEAC v. Grace. The date there are No. I would like to go to item number 4 in It did. Was there any issue of fair use in

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DEWAR listed as 1997 to 2000 and it reads, "Case involving software copyright issues. Newark Federal Court." First of all, could you explain the dates, what was done between 1997 and 2000? A. Well, it dragged on for a long time; Trial in

extended discovery, depositions over a long time, trial delays. Q. A. OK. What was your role in this case?

To give opinions on whether software

copyright infringement had occurred. Q. What did you do to determine whether

any copyright infringement had occurred? A. I looked extensively at all the

software involved on both sides. Q. issue? A. It was tax payroll preparation What was the nature of the software at

software for an IBM mainframe. Q. A. Q. case? A. Grace was the defendant in the case,
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Who was your client in this matter? Grace. And Grace was the defendant in the

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DEWAR yes. Q. Did you come to an opinion as to

whether or not Grace had infringed any copyrights? A. Q. A. Q. I did come to an opinion. What was that opinion? That there was no infringement. What was the basis for your opinion of

no infringement? A. Well, the -- the plaintiffs were

putting forward a novel but unsustainable theory on infringement which I couldn't agree with technically. Q. A. What was that theory? That if a program is running under an

operating system and make a call to an operating system function, then that's logically equivalent to copying that piece of the operating system into the program and, therefore, should be treated the same from the point of view of infringement. Q. Because the plaintiff argued that that

copy, under this novel system, as you called it, would have been the infringing copy?
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DEWAR A. Q. that call? A. no copy. There is no -- technically, there is I mean, the control -- if you run a Would have been the infringing copy. Why was there no copy being made in

program under Windows and it calls a Windows function, nothing is being copied. Q. OK. And in application to the GEAC v.

Grace case, what was the program that was at issue that would be the equivalent of Windows in the example you gave? A. It was an applications programs

created by the plaintiff, by GEAC. Q. Is GEAC, an appropriate way to say the

plaintiff's -A. Q. expert? A. Q. A. Q. They did. Do you recall who that was? Not reliably. Do I understand from the last part of If I am remembering right, yes. Do you remember if GEAC retained an

this, trial in Newark Federal Court, that you testified in Newark?
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DEWAR A. Q. case? A. Q. No. Looking at the last item in this list, I did. yes. Was there an issue of fair use in this

it appears to me there was no copyright infringement issue in the Cable & Wireless case, is that correct? A. That's correct. It was purely a

patent case. Q. Have you been involved in any other

legal consulting that is not a part of this list? A. Q. or -A. Q. No. OK. Generally describe what is the Yes. Has any of that resulted in testimony

nature of the other legal consulting that you do? MR. LARSON: Objection to form.

You can answer. A. Q. A number of unrelated matters. Let me ask some additional questions
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DEWAR that might help to focus it. For example, have

you been involved in other legal consulting, making a determination of whether or not there was copyright infringement? A. Q. Yes, I have. Have you been involved in other legal

matters of making any determination as to whether or not there was fair use under the copyright statute? A. Q. No. When you generally described in these

instances where you're making a determination for copyright infringement, what do you do in order to make that opinion? MR. LARSON: Objection to the form.

You can answer. A. It is difficult to give a general

answer, but I understand the notion of a software copyright infringement pretty well. I'm familiar with the Altai tests of the Third Circuit and so it has varied how deeply I have moved into the case. Q. In these cases where you -- I am In these instances where you

sorry, not cases.

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DEWAR are trying to make a determination of copyright infringement, do you look at the copyright owners' software generally speaking? MR. LARSON: of the question. I object to the vagueness If you can answer on a

general level, you should. A. Q. In some cases. In what cases would you not look at

the copyright owner's material? A. If it could be clearly established

there was no access to that material, there is no point in looking at it. Q. In those cases where you do look at

the copyright owner's material, do you undertake a comparison of the copyright owner's material to the potentially infringing material? MR. LARSON: A. Q. Same objection.

Yes, in at least in some cases, yes. Have you had the experience of trying

to go through the copyright owner's material and potentially accused infringing materials to determine if they are similar enough that there would be copying? MR. LARSON: Objection to the form.

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DEWAR You can answer. A. Not really. In the cases I have been

involved in, it didn't get that far. Q. In any of these other matters -- I

apologize if I have asked this question, so that's fine if I have, do I understand correctly that you have not participated in an evaluation of whether or not certain acts constituted fair use under the copyright statute? A. I'm stuck with negatives. So let me

state it this way:

Fair use has never come up

in any of the cases I have been involved in. Q. Or in the other legal consulting that

you have been involved in? A. Q. Right. Looking at the first item, the St.

Mary's case, do you recall who the attorneys were that you worked with at the law firm? A. remember. Q. In the third item, Intergraph case, do No, it is a Dallas law firm is all I

you recall who the attorneys were in Philadelphia? A. It was -- Lunara, L-U-N-A-R-A, was the
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DEWAR principal attorney and it was his small company that -- I don't know if it was called Lunara Associates, but it was something like that. Q. company? A. They were attorneys. He was really They were the attorneys or it was his

the attorney and he had some people working for him. Q. What about the GEAC case, do you

recall who the attorneys were that represented Grace that you worked with? A. I am sorry, that was -- what one were Lunara was for GEAC and

you asking about? Grace. Q.

I apologize. Quite all right. If we could back you

up, Intergraph v. Bentley case. A. Q. I can't remember. In any of the cases that are listed

here, did you ever have an occasion to consider whether or not there was an issue of a transformative use? MR. LARSON: Objection to the form.

You can answer. A. Could you say what you mean by that
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DEWAR exactly. Q. Sure. Let me ask you this first, have

you ever heard in a copyright case of an issue of a transformative use? A. It's never come up in any of the cases I have a vague

I have been involved in.

recollection that it has something to do with -it is one of the four conditions of the fair use thing, but it has never -- it has never come up in any of these cases. Q. What about in your other legal Have you had an occasion to address

consulting?

an issue of whether or not a particular use is transformative? A. Q. No. If you could please turn to the second This one we can use report It happens

page of your report. pages properly.

This is page 2.

also to be Exhibit A2. A. Q. Yes. Do I understand correctly that you

first began teaching in 1968 at IIT? A. Q. That's correct. Perhaps a quicker way to ask this
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DEWAR question, if you could turn to the page that has been marked as Exhibit A10. This is a page from your CV and I'm looking at the heading, "Teaching experience." If you could look at what's

listed here for undergraduate courses, graduate which bridges over to the next page and just confirm that this is a complete list of all the courses that you have taught. MR. LARSON: I will object only to the

extent that above it, it says it is a representative list. A. Q. It is nowhere a complete list. OK. Let me ask the question, does it

continue to be a representative list? A. Q. It does. Have you ever taught any courses that

dealt with issues of copyright infringement? A. Q. No. At the end of this item and on the Technical

next page, there is "In preparation:

Aspects of Software Copyright Issues with NYU Law School." A. What is that work?

I had some preliminary conversations
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DEWAR with someone at the law school and we thought it would be a good idea to prepare such a course, but nothing ever happened. Q. When you were a professor at IIT,

which I believe -- and you know just roughly we are talking in the late '60s and '70s here? A. Q. Correct. Did you have materials put on reserve

as a professor? A. Q. I did. Did you have supplemental reading

materials put on reserve? MR. LARSON: Object to the vagueness

of the term "supplemental" by counsel. A. I had certain books put on reserve

that were recommended but not required reading. Q. Did you form an opinion as to whether

or not a certain percentage would read recommended but not required readings? A. Q. No. Did you have any reason to think that

all of your students in a given class would read recommended but not required materials? A. Hard to recall. I very rarely used

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DEWAR the library reserves during the IIT period. not actually completely sure I ever used them because it is hard for me to separate what happened at NYU and what happened at IIT. Q. Have you had the experience where less I'm

than all of -- let's stay focused in the IIT time frame. Do you recall if you had an

experience where less than all of the students in the given class would have read recommended but not required materials? MR. LARSON: I object to the

foundation, but the witness can answer. A. No, most courses, several students

don't even read the required material, so I would have to say yes to that question. Q. Do you recall if in the late '60s and

'70s, while you were at IIT, was there any form of electronic reserves at IIT? A. Q. No, it was pretty early on. In your report, you referred to the What do you

course management system.

understand a course management system to be? A. Well, I was -- first of all, let's

narrow the term down to electronic course
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DEWAR management because I believe that's the focus. And it's some system that allows the -- that assists or helps with preparing online materials for students. Q. In an electronic course management

system, would students have access to it? A. Q. Certainly in some cases, yes. And in, as -- just generally speaking,

electronic course management system, the professor would also have access to it, would he not? A. Q. Yes. Was there such a system in place at

IIT when you were there in the late '60s and early '70s? A. Q. No. On page 2 of your report, under

"Background and Qualifications," the third sentence in the third line, from 1976 to 2005, I was professor of computer science at the Courant forgive me -A. Q. Courant. Courant Institute of Mathematical Is it -- did you

Sciences, New York University.
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DEWAR stop teaching in 2005? A. Q. A. Q. A. Q. A. Q. A. I stopped teaching in 2005. Are you still employed full-time? Not by New York University. But you do have a full-time job? I do. That's being CEO of Ada Core? Exactly, yes. What is the business of Ada Core? We produce software systems that are

used to build big critical systems, avionics, air traffic control, space applications, defense applications. Q. In terms of the number of people,

approximately how many people are employed by Ada Core? A. Q. I think it is 28 now. Do I understand correctly you have

locations in New York and France? A. Right, we have a sister company in

France which we work as a technical unit with. Q. Do the people in France include the 28

that you mentioned? A. No. It's about double.
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It's about

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DEWAR that number on both sides. Q. OK. Do you continue to testify or

provide expert testimony even though you have stopped teaching? MR. LARSON: A. Objection to form. I

You are saying have I done so. Let me just --

don't believe so. Q. helps. A. Yes.

Please, that's back at A20 if that

Akamai preceded my retirement

from the university. Q. So then once you retired from the

university, are you still available to serve as an expert witness? A. Q. that? A. Q. Yes. The other consulting or other legal Yes. And today is obviously one instance of

consulting that you mentioned, has any of it been between your retirement from the university in 2005 and today? A. Q. Yes. I would like to focus on the time
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DEWAR frame while you were employed at New York University between 1976 and 2005. While

teaching courses at New York University, did you make use of the library reserve systems? A. Q. Occasionally. Generally speaking, under what

occasions would you make such use? A. There were one or two courses where I

put some books on reserve. Q. When you did so, were you aware that

New York University had a copyright policy? A. Q. Yes. What, if anything, did you do to

determine if you were in compliance with that policy? A. For putting hard copies of books on

reserve at the library, I don't believe the issue arises. Q. If I had been a student in your class

and had gone to the library to get that hard copy book that was on reserve, would I have been able to make a hard copy of portions of the book? A. I don't know.
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DEWAR MR. LARSON: A. Q. Object on foundation.

But I don't know. Do you know if anything that you

provided to the library was ever put on any form of electronic record? MR. LARSON: A. library. Q. I am sorry, I thought you at least Object to the form.

I never provided anything to the

provided a couple of hard copy books for the library? A. No, they are books in the library

collection and I asked them to be put on reserve. Q. I see. So they were not your books

that you gave -A. Q. They were not my books, no. When you put things on reserve, you in

a sense took -- designated books that were already in the library to be placed on reserve, is that correct? A. Q. Yes, that's correct. When you had those books placed on

reserve, in your role as a professor, did you do
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DEWAR anything to preclude students from trying to -or from being able to make a copy of those books? MR. LARSON: A. Q. No. To your knowledge, did the library Objection to form.

service do anything to preclude students from being able to make a hard copy of those books? A. Q. I have no knowledge of that. Do you know if there were copying

machines available in the library at NYU? A. Q. No, I don't know. To your knowledge, does New York

University have an e-reserve system? A. Q. I don't know. To your knowledge, does New York

University have an electronic course management system? A. I don't know. We never used one in

our computer science department because we know how to do that ourselves. Q. Outside of your teaching experience,

have you ever had any experience with -- and other than this case, have you had any
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DEWAR experience with a course management system or using a course management system? A. Q. No. Outside of this case, have you had any

experience with using an electronic reserve system? A. No. Could I just ask for a I am

clarification from the previous questions?

taking in your questions, when you say a course management system, some commercial piece of course management system software? Q. Or, well, any electronic course

management, perhaps you had your own that you did through your students, but yes, I am certainly interested in some commercial software. the report. A. I never used any commercial software For example, you mentioned uLearn in

and I have no experience -- did I do all sorts of stuff on my observe websites, I managed them myself and I did various stuff which I'm sure is somewhat similar in some respects to the commercial software but I wasn't including that in my answer.
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DEWAR Q. OK, in terms of your own websites that

you did, would you allow students to have access there so, for example, I could, if I were a student in your class, I could see what my assignment would be for the class? A. Yes, yes. MR. LARSON: Objection to form.

You can answer. Q. Did you post reading materials to your

own website? A. Q. Yes. How would you post reading materials

to your website? A. It might be PowerPoint slides of my

lectures or what was posted, stuff I had written as PDF files, assignments, exams, students' assignments if they gave permission. Q. Do you recall posting anything that

was authored by anyone other than yourself or a student? A. On some occasions, I posted sets of

slides that had been authored by another faculty member at NYU. Q. Anything else?
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DEWAR A. Q. No. In terms of things that you had posted

on your own websites, have you ever performed an analysis in an effort to determine whether that posting would constitute fair use? A. Q. No. In connection with the work that you

have done in this case, have you done anything to try to determine whether anything posted on the Georgia State for example uLearn system, that course management system constitute a fair use? A. Q. No. Have you done anything in this case to

determine whether or not anything posted on the Georgia State e-reserve system constituted a fair use? A. Q. No. Have you been asked to undertake any

sort of a determination as to whether or not anything posted on the Georgia State electronic reserve system or on the uLearn system constitutes a fair use? A. No.
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DEWAR Q. In the maintenance of your own

websites that you mentioned -- we are still at this NYU time period, while you were at NYU, whose responsibility was it to be certain that those websites complied with the copyright laws? A. Q. Unclear. Did you believe that you had such a

responsibility? A. Q. Yes. Did you believe that anyone else had

such a responsibility? A. No. Let me amend that a little bit.

When I was in a position say as associate director of the institute, I did, on a couple of occasions, monitor other faculty's websites and notice problems which I will bring to their attention. So I think

there was some community involvement in that case. Q. Nothing formal. In these instances that you mentioned,

were you acting in effect as a supervisor of these people? A. Q. I just want to know your role.

Not officially. You said you noticed a problem.
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What

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DEWAR would be an example of a problem you would notice? A. One faculty member had written a book

and he assigned the copyright to the publisher and he posted the PDF of the whole book on his site. I commented to him he needed permission He said, It's my

from the publisher to do that. book.

Yes, but you have assigned the copyright

and you should clear that with the publisher. That's the one -- actually that's the one instance I recall. Q. Do you know if New York University has

a policy whereby a faculty member will grant a license to the school for use of the authored work pursuant to the school's mission? MR. LARSON: Object to the form. This is well

Object to the relevance.

outside the scope of the expert report. A. Q. A. Q. No. No, you don't know? No, I don't know. How would you characterize the

statements that you made to this other faculty member about the PDF of his book that he had
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DEWAR placed on the website? MR. LARSON: Objection to the form.

You can answer if you understand. Q. I simply don't want to put words in Would you consider it an

your mouth.

instruction to take it down, advice or friendly recommendation? is -A. Q. book. Friendly advice. You indicated he said, Well, it was my Did he do anything else in response to I want to understand what it

the friendly advice? A. Q. A. He contacted the publisher. What happened then? The publisher said it was fine to put Least I think --

up the PDF in this case.

that's not a solid memory, but I think that was the resolution. Q. In terms of preparing the report,

other than lawyers, did anyone else help you in the preparation of the report? A. We did some work together in the late

editing stages. Q. And when you say we -EXHIBIT 12 - 40

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DEWAR MR. LARSON: other than lawyers. A. Other than lawyers. Nobody other than I think the question was

lawyers came anywhere near it. Q. For example, as a professor,

oftentimes you might have a graduate student do some research. I am looking if there was, other

than lawyers, someone else that helped you. A. Q. No, entirely my own work. While you were teaching at IIT, did

you ever have any experience with the IIT copyright policy? MR. LARSON: of the question. A. A, I don't know whether there was such Object to the relevance

a policy, and B, no, if there was such a policy, I had no interaction with it. Q. Did you ever have any interaction with

the NYU copyright policy? MR. LARSON: A. Not really. Same objection. Whenever I used a xerox

machine at the university, there is a notice posted there, but that's about it. MR. SCHAETZEL: We have been going

EXHIBIT 12 - 41

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DEWAR about an hour, is now a reasonable time to take a stretch. (Recess) Q. Professor Dewar, how did you get

involved in this case? A. I was contacted and asked if I would I guess I don't know exactly I think you told me at

be interested.

what the contact was.

the time, but I have forgotten. (Exhibit 2, document Bates stamped Dewar 00071 marked for identification, as of this date.) Q. You have been handed what has been For the

marked as Exhibit 2 for identification.

record, this was produced at Bates number Dewar 0071. Do you recognize this to be an e-mail

string between you and Mr. Larson? A. Q. Yes. If you look at approximately the

middle of the page, Mr. Larson wrote, "Professor Dewar, Ben Goldberg at NYU passed along your contact information and recommended you as a possible expert witness for a case I am working on. Can you give me a call when you have a
EXHIBIT 12 - 42

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DEWAR moment to discuss the particulars. Todd." A. Q. A. Q. A. Thanks,

That's the language I am referring to? Yes. Do you know a Mr. Ben Goldberg? Very well, yes. Who is Mr. Goldberg? A colleague, a professor in the

computer science department. Q. In e-mail, at least at the top, bears Do you see that?

a date of October 6, 2009. A. Q. Yes.

Is that approximately when you were

first contacted? A. Q. Yes. Do you remember if this was, in fact,

the first contact? A. Well, this is a reply to an e-mail.

So it is not the first contact. Q. You had replied by attaching your

resume, correct? A. Q. Correct. Do you recall how quickly after a

first contact you provided your resume to Mr. Larson?
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DEWAR A. Q. Matter of days. Do you believe you would have been

first contacted about this matter in the first part of October of this year? A. Q. Yes. Once you were first contacted about

the case, what were you told? A. Broad outlines of what the matter was

about and broad outlines of what I would be -what opinions would be sought from me. Q. What do you recall of the broad

outlines you were told in terms of what this case was about? A. That it was about electronic reserve

systems and associated copyright issues. Q. Did you -- first of all, who were you

speaking with? A. Q. Mr. Larson. Did you ever have an occasion to speak

to any other attorneys about this case? A. Q. A. At any point? Yes, sir, at any point. Yes, we met at least one other person Briefly. My

whose name I have forgotten.
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DEWAR primary contact has been with Mr. Larson. Q. Other than attorneys, did you ever

speak with anyone else about this case? A. Q. No. Was the person who first gave you a

broad outline in terms of what the case might be about, was that Mr. Larson? A. Q. Yes. What do you recall of the substance

that Mr. Larson told you in terms of what the case was about? MR. LARSON: answered. A. Just that it was about electronic, use Object, asked and

of electronic reserve systems and associated copyright issues and then I asked him to give me a copy of the complaint. So I can't -- it is

hard for me to distinguish what I read in the complaint and what you told me. Q. What do you recall in terms of the

broad outlines that you were given regarding an opinion that you might be asked to offer? A. That the issue they wanted me to focus

on was whether and when and under what
EXHIBIT 12 - 45

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DEWAR circumstance copies were being made from a technical point of view. Q. Was there ever any discussion of

whether you would be asked to give an opinion of whether the making of a given copy resulted in an act of copyright infringement? A. Q. No. And you have never been asked to

provide such an opinion, is that correct? A. No, I have never been asked to provide

such an opinion. Q. You mentioned that you asked to review

a copy of the complaint. A. Q. answer? A. Q. I can't recall. You didn't list the answer in the Did you Yes. Did you ask to review a copy of the

materials on Exhibit B to your report. ever have occasion to read the answer? A. No, I -- not that I recall.

I don't

think I read the answer. Q. Did you think it was necessary for you

to read the answer to give any of the opinions
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DEWAR you were being asked to provide? A. Q. No. I would like to get this marked as the

next exhibit please. (Exhibit 3, document Bates stamped Dewar 0001 through 0002 marked for identification, as of this date.) Q. You have been handed what has been What is

marked as Exhibit 3 for identification. this document? A.

I am sorry, what is this document?

This is a reply from Mr. Larson to the Dewar 2. Q. The reply mentions the report of Do you see that? Yes.

Kenneth Crews. A. Q. A. Q. Crews? A. Q. No. Yes.

Do you know Professor Crews? No. Have you ever heard of Professor

Have you formed any sort of opinion as

to Professor Crews' ability in copyright law? A. Q. No. Have you been asked to form any
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DEWAR opinions regarding Professor Crews' ability to serve as an expert in this case? A. Q. No. Do you have any reason to believe that

Professor Crews could not serve as an expert in this case? MR. LARSON: grounds. You can answer. A. I have never been asked that question, Object on foundation

so I guess the answer is no. Q. Also in Exhibit 3, for identification

it says, "Are you available at some point tomorrow for a brief meeting." Did you meet face-to-face with Mr. Larson? A. Q. Yes. Prior to today, how many times did you

meet face-to-face with Mr. Larson? A. Two, maybe three times. MR. SCHAETZEL: I would like to get

this marked as the next exhibit, please. (Exhibit 4, document Bates stamped Dewar 138 marked for identification, as of
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DEWAR this date.) Q. You have been handed what has been

marked as Exhibit 4, Dewar Exhibit 4 for identification. A. Q. A. Yes. What is this? This is the invoice that I sent for

the time I put in on the case up through the last item that's listed here. Q. Did you know if these items

represent -- for the record, this was produced at Dewar Exhibit 00138 or page 138. these represent in-person meetings? A. Certainly meeting with Todd And then we met Do any of

represented a personal meeting.

to, from the work on editing the report because some of the final editing, we met to do in person, met in person to do. Q. Is 450 dollars an hour your standard

hourly rate? A. Yes. MR. SCHAETZEL: Let's get this marked

as the next exhibit please. (Exhibit 5, document Bates stamped
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DEWAR Dewar 00096 through 108 marked for identification, as of this date.) Q. You have been handed what has been Do you

marked as Exhibit 5 for identification.

recognize this document as the fact stipulation document that you reviewed? A. Q. I do. You indicated that you also reviewed a Do you have an

draft set of stipulations.

understanding as to why you reviewed both the draft and the final stipulation? A. My recollection is there was some

contended items in the draft that weren't in the final. I'm not absolutely sure whether that was

on paper in front of me or from discussions. Q. I'm not sure I understand what you

mean by on paper in front of you? A. I know there was a discussion of --

there was a discussion of some stipulations that didn't appear in this final document. And I

believe they may have been in the draft, but I can't remember for sure. MR. SCHAETZEL: I would like to get

this marked as the next exhibit please.
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DEWAR (Exhibit 6, document Bates stamped Dewar 114 through 126 marked for identification, as of this date.) Q. You have been handed what has been Do you

marked as Exhibit 6 for identification. recognize this to be the draft set of stipulations that are referred to in your report? A. Q. Yes, I do.

Is it your practice to refer to things

in draft form in order to render opinions? MR. LARSON: A. that. Objection to the form.

I don't have some standard answer to I mean I don't have a practice one way or

the other. Q. Looking at what has been marked as

Exhibit 6, the draft, were there any particular stipulations or draft stipulations in this document that you relied upon in order to formulate an opinion in this case? A. Q. No. Were there any stipulations in the

final which has been marked as Exhibit 5 for identification that you relied upon to formulate
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DEWAR an opinion in this case? A. No. MR. SCHAETZEL: Let me get this marked

as the next exhibit please. (Exhibit 7, document Bates stamped Dewar 129 through 136 marked for identification, as of this date.) Q. You have been handed what has been For the

marked as Exhibit 7 for identification.

record, it was produced at Bates numbers Dewar 00129 through 136, and I notice that on page 136, there is no signature. So my question is,

does this represent a draft report to you? A. Q. I believe so. Could you please describe the process

that you went through in order to prepare the report? A. I read the materials for the case and

then I prepared essentially a set of rough notes, text for the report, I thought the initial input to the editing process. we met to do the final editing. I'm not very competent in Microsoft Word, so I relied on Mr. Larson's Word
EXHIBIT 12 - 52

And then

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DEWAR expertise to format the thing into a reasonable form. We went through -- he proofread, it was all done in a bit of a hurry, as you know from the time scale. So he went through,

proofread, and we discussed some changes that in form, not really any changes in substance, just changes in form. And I believe -- I

mean, I'm not very good at doing DIFs by a -but these are very close, I believe, and probably this is just before the very final editing comments I made. I think it may be

one or two extremely minor edits that were made to get from 7 to 1. memory. Q. By 7 to 1, you mean what has been That would be my

marked as Exhibit 7? A. Exhibit 7 to Exhibit 1. Most likely, this is the -- this is what we -- that we ended up with from our editing session and agreed was the final form, but then I read it once more very carefully and I found a couple of very minor style issues. Maybe only one. I only remember one.
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DEWAR Q. Let's then look at Exhibit 1 if we And the

could then, the report that is signed. first page.

The second sentence reads, "I have been asked to analyze and offer my opinion on certain technical aspects of the operation of the eRes (electronic reserve) and uLearn systems at Georgia State University (GSU)." If you carry into the next sentence, it talks about the technical aspect here including whether, "In the process of distributing course materials through these computerized systems, additional copies of the course materials are made and to describe how and where these copies are made." A. Q. A. May I make a correction there? Of course. There is no "including" and this was

the -- this was the complete scope of what I was asked to do. Q. OK, thank you. So in terms of that scope, you referred to in the process of distributing course materials and I'm interested in why you
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DEWAR used the word "distributing" there. A. Normal use of electronic distribution

is -- that's very familiar use of the phrase, of the term for any situation in which you distribute materials electronically. Q. So when the professor at NYU put the

PDF copy on his web page, you would have considered that to be an electronic distribution of the book? MR. LARSON: A. activity. Q. A. Which part? Well, actual distribution occurs when Objection to the form.

It's part of the distribution

people access that and get copies. Q. OK. And that would apply as well to,

for example, the Georgia State eReserves, right? They would, in your mind, be a distribution when the student accesses an item that's on the eReserve system, is that correct? A. Q. Yes. Do you consider the posting of the

material to the website, whether it is the professor's website or eReserve or some other
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DEWAR website, do you consider the posting of it to be the distribution or merely a part of some distribution? MR. LARSON: Just to be clear, we are

talking about distribution as the Professor is using the term and not in a legal sense. A. It is an informal use of the term. It

is making it available for distribution. Q. OK. Reading on in that last sentence,

it talks about the process of distributing course materials through these computerized systems. For these computerized systems, I

presume, refer back to the Georgia State eReserve and uLearn systems, is that correct? A. Q. Correct. Have, other than what you have

identified already as, you know, reading the depositions and so on, and the websites, I don't mean to exclude anything, have you done anything else to familiarize yourself with the operation of those systems? A. No. MR. LARSON: Can I just hear his

question and the answer.
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DEWAR (Record read) Q. In the next paragraph, which is top of

page 2 of the report proper, near the bottom of the paragraph, you make reference to course packs. Do you see that -- I am sorry, near the

bottom of the first paragraph. A. Q. Yes, yes, I see it. This activity is from a technical

standpoint? A. Q. I see it. And I can tell you over on page 7, you

are welcome to look at it, in the third paragraph of the conclusion, you use similar language but in particular, you say, I've had plenty of experience with course packs, in effect. A. Q. packs? A. Q. I've used them in many of my courses. What did you do to have a course pack Do you see the first sentence of that? Yes. What is your experience with course

prepared in your courses? A. I would take the material over to the

copy shop and I would ask them to make X number
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DEWAR of copies for X-Y-Z cost. Q. IIT? A. Q. A. Q. No. So this would have been at NYU? NYU, yes. Did there -- when you say you would And did you do this while you were at

take them over to the copy shop, was that an NYU copy shop? A. Q. A. Q. No, commercial copy shop. So a commercial copy shop? NYU was more expensive. I can believe it. So you say you What types of

would take the materials. materials would you take? A. Q. published? A. published. Q.

Stuff I had authored. Was any of that material that had been

None of that material had been

Did you ever take any published

material over to a copy shop to be -A. Q. No. I am sorry, let me finish the
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DEWAR question. I understand your answer, I just want

to get it out. Did you ever take any material that had been published to the copy shop in order for it to be placed into a course pack? A. Q. No. Once the copy shop would make up the

course pack, what happened next? A. I would -MR. LARSON: form. You can answer. A. I would tell the students they could I will object to the

get the reading material for the course from such and such a copy shop and they would go over and buy copies. Q. Were you aware of whether other

professors provided course packs in their teaching at NYU? A. Q. Yes. Did you ever see any of the other

professors' course packs? A. Q. Yes. Do you know if any other professors
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DEWAR would have used materials for anyone authored by somebody other than the professor in the course packs that they had prepared? MR. LARSON: of the answer. You can answer. A. Q. Yes. So yes, they would use materials I object to the relevance

authored by others? A. Q. Yes. Did you ever provide, for lack of a

better term, any friendly advice regarding that practice to such other professors? MR. LARSON: relevance. You can answer. Q. Do you have any knowledge as to Object to the form and

whether NYU ever said anything to any of these other professors about course packs? MR. LARSON: Object to the form.

You can answer. A. There were -- there were policy

advisories on the forms that needed filling out and so on.
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DEWAR Q. Do you know if those policy advisory

or those forms included a consideration of -consideration of whether or not the copies being made constituted a fair use? A. No, I have no recollection fair use

was ever an issue. Q. Going back to page 2 of your report.

The first sentence at the top of the page, "Dr. Crews takes the position that the provision of course materials through eRes is essentially the equivalent of putting those materials on hard copy reserve in the library." footnote. The footnote at the bottom of the page reads, "See expert report of Kenneth E. Crews at 8," with a quote from that portion. My question is, do you recall if there were any other portions of Dr. Crews' report that you felt took the position that the provision of course materials through eRes is essentially the equivalent of putting those materials on hard copy reserve in the library? MR. LARSON: You are asking does he And then you

EXHIBIT 12 - 61

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DEWAR recall if there were any? MR. SCHAETZEL: A. Q. I don't recall. And in preparing this, did you attempt That's my question.

to cite to places where you thought Dr. Crews had taken that position? A. Well, I just -- I picked this one cite

which seemed clear and decisive to me. Q. In the next sentence, you state

"However, unlike traditional hard copy reserves, where a single copy of a work is placed in a reserve area in the library, the provision of course materials through eRes or uLearn entails the distribution of a copy of the reading material to each and every student in the class who accesses the material online." Do you see that sentence? A. Q. Yes. Does it matter to you -- I would like

to focus your attention on the words "course materials" there. A. Q. Yes. I am wondering, in terms of your

opinion, does it matter to you whether or not
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DEWAR the course materials are required readings or readings that might be recommended but not required? A. Q. For this sentence, it is irrelevant. And it is irrelevant, as well, for

your opinion in the case, is it not? A. case. Q. Is it your opinion that Dr. Crews It is irrelevant for my opinion in the

would somehow contend that, let's say, for example, downloading a PDF off the internet is not the making of a copy? A. That's speculative a bit, but let's It isn't clear from his report I

say it this way.

that he clearly states that it is a copy. didn't find that statement anywhere in his report.

I can't really speculate on anything

that wasn't in the report. Q. Is it, therefore, also your view that,

for example, Dr. Crews does not clearly state that if a person were to download or, you know -- yeah, I guess download a PDF to a DVD or to some other drive, there was nothing clearly stated in his report that said that was making a
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DEWAR copy? MR. LARSON: question. A. Object to the form of the

His report says what it says.

I don't recall any clear statement

but -- to that effect. Q. And it is your opinion in both cases,

whether it is downloaded from the internet or downloaded from some other media, by downloading a PDF, the person has made a copy, isn't that correct? A. I am sorry, I don't understand what

you mean by downloading from some other media. Q. OK. Let's start with just taking If I download a PDF

something off the internet.

from the internet, is it your opinion that I have made a copy? A. What are you doing with it; looking at What are you doing it?

it, printing it? Q. now?

Downloading it on to my machine right

MR. LARSON:

Object to the form.

You can answer. A. That's vague technically because

downloading is -- downloading just involves
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DEWAR getting the bits off the internet wire. question is what happens to those bits. Q. I've not opened it yet. I have So the

right-clicked if you will, clicked "copy," and I have put it on to my hard drive of my computer. A. Q. Certainly a copy has been made. So it doesn't matter, for that

analysis, whether or not I have actually read the document, does it? A. Q. No. And if I receive an attachment in PDF

form, an e-mail attachment from Mr. Larson in PDF format and I transfer that PDF to my hard drive, it is your opinion that I have made a copy, is that correct? A. Q. Yes. Is it your understanding that in

either of those instances, whether I have transferred from the internet or I have transferred from an e-mail attachment, that Dr. Crews takes issue with whether or not a copy has been made? MR. LARSON: Objection to form.

You can answer.
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DEWAR A. That's why I was technically confused. So I don't

E-mail is sent over the internet.

understand the distinction you're drawing. Q. OK, I want to know, I'm trying to

understand where you believe points of contention are with Dr. Crews in terms of whether or not transferring a PDF, whether it be to my hard drive or to a thumb drive or anything else, I just want to understand where you believe the points of contention are as to whether or not a copy has been made. And for

example, I'm just looking at page 6 of your report first paragraph, a PDF is sent as an attachment to an e-mail message. The recipient

clicks on the attachment and has a choice of opening and viewing the file or storing the PDF file in a designated location; for example, a local folder. Is it your opinion that if the

person opens the file and views it, a copy has been made? MR. LARSON: Object to the form.

You can answer. A. Q. Yes. Is it your understanding that
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DEWAR Dr. Crews has a different view of that? A. I was really asked to look at the I wasn't

question of whether there was copies.

asked to look at Dr. Crews' report from the point of view of guessing what he might or might not think a copy is. those questions. Q. Going back to the first paragraph on So I really can't answer

this page, if the PDF is not viewed but rather instead is simply transferred to a local hard drive, it is your opinion that a copy is made there as well, isn't that correct? A. Q. That's correct. The next paragraph on this page speaks

to the second form in which PDF files are transmitted over the internet and this is using browser, correct? A. Q. Yes. And in this instance, the example you

give beginning in the third paragraph is when a GSU student would, for example, access material that may be placed on to uLearn or electronic service, is that correct? A. Correct.
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DEWAR Q. It is your opinion when the GSU

student opens that PDF for viewing on their computer, then a copy has been made, is that correct? A. Q. Yes. What about when the GSU student simply

receives the PDF? MR. LARSON: Q. Objection.

Hasn't opened it, hasn't viewed it,

hasn't transferred it, hasn't stored it? MR. LARSON: the form. You can answer it. A. Q. What do you mean by "receive"? OK. In other words, the -- the GSU Objection, objection to

student clicks in the eReserve, isn't that correct? A. Q. Yeah. There is an item there that they want

to review, a PDF. A. Q. Yes. That person can see that the PDF is on

eReserve, but they haven't done anything to, if you will, transfer it to their machine.
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Is it

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DEWAR your opinion that there has -- they are aware the PDF is there because they can see the link for it. Is it your opinion that at that point

in time, there is a copy what has been made by the student of what's in that PDF? A. Q. No. Any of the work that you have done in

this case, could you determine how many students at Georgia State University in a given class had accessed a given item on the eReserve system? A. Q. No. In any of the work that you have done

in this case, could you determine how many students had accessed a given item in the uLearn system? A. Q. No. Did you ever take a look at any

information that would provide, for example, hit counts or anything of that -MR. LARSON: Object to the form.

You can answer. A. I think there may have been some data

of that kind in some of the materials I reviewed. But I didn't -- it was not germane to
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DEWAR my opinion. Q. And what does the term "hit counts"

mean to you? A. It is a vague term. It is used

generally to reflect the number of people who have done something or other on the web. Q. Have you done anything in this case to

determine, let's say for example that hypothetical here, the Larson on copyright law article has received 100 hits. Have you done

anything in this case to determine whether or not that represents 100 different students or ten students accessing Mr. Larson's article ten different times? MR. LARSON: Object to the form.

You can answer if you are able. A. Q. report. No. Looking again at page 2 of your The last sentence now on the first

paragraph, the activity is -- and by activity, I believe -- take your time to put this in context and you're welcome to take as much time as you need -- but I think we are talking now about the provision of course materials through eRes or
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DEWAR uLearn that's in the previous sentence. activity is from a technical standpoint, therefore, more akin to the use of course packs distributed to students than traditional hard copy reserves." A. Q. Yes. Can you identify any differences Do you see that opinion? "This

between the provision of course materials through eRes or uLearn and hard copy course packs? A. There are myriad differences. One is

always on paper. paper. Q.

The other might not be on

I guess that's the primary difference. If I am the student using eRes, do I

pay for that in the same fashion that I would have paid for the course pack that I picked up -MR. LARSON: Objection to the form.

Are you talking about at Georgia State? Q. We will make me a student at NYU. I

unfortunately never got that opportunity, but if I were, if I got something off of an eRes system or, for example, off of a professor's website
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DEWAR rather than eRes because I understand NYU doesn't have that, if I got something off of a professor's website, I don't have to pay for it in the same fashion that I would have to pay for a course pack at NYU, would I? MR. LARSON: foundation. A. You might. That's a decision on Object to lack of

whoever sets up the system, whether there is a charge. Q. Did you ever have a charge for

materials that you put on your websites at NYU? A. Q. No. Are you aware of any other professors

that that had a charge that the student had to pay to get material off their websites? A. Q. No. You mentioned the paper difference

between the provision of materials through an eRes or uLearn and a course pack. of any other differences? A. Q. No, not really. In order to get materials off of Can you think

uLearn or eReserve, a student can do that
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DEWAR remotely, can they not? A