Vargas et al v. Pfizer Inc. et al

Filing 87

DECLARATION of Christopher Keegan in Support re: 85 SECOND MOTION for Summary Judgment.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit Ex B# 2 Exhibit Ex C# 3 Exhibit Ex D# 4 Exhibit Ex E# 5 Exhibit Ex F# 6 Exhibit Ex G# 7 Exhibit Ex H# 8 Exhibit Ex I# 9 Exhibit Ex J part 1# 10 Exhibit Ex J part 2# 11 Exhibit Ex K# 12 Exhibit Ex L# 13 Exhibit Ex M# 14 Exhibit Ex N part 1# 15 Exhibit Ex N part 2# 16 Exhibit Ex O# 17 Exhibit Ex P# 18 Exhibit Ex Q# 19 Exhibit Ex R# 20 Exhibit Ex S# 21 Exhibit Ex T# 22 Exhibit Ex U# 23 Exhibit Ex V)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 87 Att. 12

EXHIBIT L

Dockets.Justia.com

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

000--RALPH VARGAS and BLAND-RICKY
ROBERTS

Plaintiffs,
) No. 04CV 9772

vs.

(JCF)

PFIZER, INC. ; PUBLICIS, INC.
FLUID MUSIC; EAST WEST

COMMUNICATIONS, INC. and
BRIAN TRANSEAU, p/k/a " 8T"

Defendants.

Deposition of
STEVEN W. SMITH, Ph.

Tuesday, August 15, 2006

CERTlflED

COpy

Reported by:
GEORGE SCHUMER, CSR

(01-384619)

LEGALINK~
A WORDWAVE

LegaUnk San Francisco 575 Market Street, 11th Roor
San FranCisco, CA 94105

tel [phone] tel [phone]
fax [phone]

www.legalink. com

COMPANY

GLOBAL COURT REPORTING. LEGAL VIDEOGRAPHY . TRIAL SERVICES

STEVEN W. SMITH , Ph.

August 15 , 2006

11:53:51
11: 53: 58

Defendant Exhibit 36?

Yes.
After you prepared your fax, and sent it off
to Mr. Chin, what happened next?

11:54:03 11:54:16

11:54:19
11:54:30
11: 54: 34

Mr. Chin requested that I spend additional
time, and develop the full expert report.
Did you agree to do

so?

11: 54 : 35

Yes.
Did you

11:54:36
11:54:40
11:54:44

have any

restrictions
being able

your time
to do

that

caused you

concern,
Mr. Chin

this?

told
limited; that

that

my time was going to be

11:54:46
11: 54: 49

could perhaps

spend

few days

it.

I certainly couldn t spend a few weeks on

it.

11:54:52 11:54:59 11:55:03
11: 55: 05

You agree ,

don '

t you,

that the overall methods

used by Boulanger are standard techniques in signal
analysis; is that right?

Yes.
And you agree that the overall methods used by
Boulanger are appropriate for the analysis at hand in
this case?

11:55:06
11:55:10

11:55:15
11: 55: 15

Yes.
What led you to believe, at the time of your
February 26 fax, that Aparthenonia -- at least in some
sections -- is a copy of Funky Drumm~r?
MR. CHIN:

11:55:16
11:55:28

11:55:40
11 : 55: 45

Obj ection.

LegaLink

Merrill Communications Company

[phone]

.. '

STEVEN W. SMITH , Ph.

August 15 , 2006

12:07:59
12: 08: 02

I purposely looked at a wide range of
to see what would be the best figures in the
preparation of my book.
MR. OLSON:

signals,

12:08:05
12: 08: 08

Were you looking for figures

12:08:09
12:08:14

in the preparation of your book, that would produce
clear sine waves?

12:08:21

Not necessarily.
What were you looking

12:08:23
12:08:27

for?

I was looking for sounds that produced

12:08:31
12: 08: 36

interesting- looking
book.

and informative figures for the

12:08:36
12: 08: 39

What year was this, that you were looking at
the audio waves?
1996 or 1997.

12:08:45
12:08:47
12:08:51 12:08:54
12: 08 : 54

Since that time, have you done any electronic
analysis of music?

No.
Have you done any electronic analysis of

12:08:57 12:08:57

drums?
No.
Other than in this report.

12:08:59
12:09:04

Other than in this

r~port, since the

work you

did on your book in 1996 or 1997, have you done any

12:09:11

electronic analysis of audio files?
No.
You don

12:09:13
12:09:14

't

have a personal knowledge of the

LegaLink, A Merrill Communications Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006

12:09:28

degree of similarity that two different snare drums
would show in a sonogram such as the one shown in your
fax, do you?
MR. CHIN:

12:09:35 12:09:42

12:09:43 12:09:49 12:09:50
12:10:03

Obj ection.
No.
So after you prepared the

THE WITNESS:
MR. OLSON:

fax

which is Defendant Exhibit 36, you said that Mr. Chin

12:10:09
12:10:14
12:10:14

asked you to prepare a fuller report on this case;
that right?

Correct.
What did you do next, with regard to your work
on this case?

12:10:15
12:10:18

12:10:19 12:10:26
12:10:31
12:10:34

I did a more detailed analysis of the data

presented in Dr. Boulanger

I s report,

and from that

more detailed analysis I prepared the expert report the draft of the expert report.

12:10:36
12:10:48

What did you use to do your more detailed

analysis?
m not sure I understand the

12:10:48
12: 10: 50

question.

Did you use any of the materials listed in
your expert report?
Yes, I did.

12:10:53

12:10:55 12:10:56
12: 11: 00
12: 11 : 04

Which ones? Dr. Boulanger s report, almost exclusively.
I know that you reviewed the other material,

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph.

August 15

2006

12:11:09
12: 11: 12

but did any of the other material that you listed in
your expert report as having been reviewed -- did you
rely on any of it in forming the opinion given in your
expert report in this case? No, I didn

12:11:16 12:11:21 12:11:22

12:11:23
12: 11 : 35

Did you use any tools in conducting your
analysis for your expert report?

12:11:36
12: 11: 40

m not sure I understand the definition of

tools. "
Other than reading Dr. Boulanger
1s

12:11:42 12:11:47

report, is

there anything else you made use of?

12:11:49
12:11:55
12: 12: 01

I digitally scanned in some of his data, and

used those electronic files for comparison.

And

his
you

his,

you mean Dr. Boulanger?

12:12:06
12:12:07
12:12:14
12: 12: 18

Yes.

did not feed the audio files
computer; correct?

issue

in this case into a

Correct.
You didn 1
t

12:12:19
12: 12: 23
12: 12 : 26

personally perform any of the

sonogram analysis of the files; correct?

Correct.
And you didn 1 t personally conduct any of the
Fast Fourier Transform analysis on the data in this
case; correct?

12:12:29
12: 12: 33

12:12:41

12:12:42

Correct.

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15, 2006

12:12:44

Your job was to look at Dr. Boulanger

1s

12:12:48

report, and make your conclusions from that; is that

12:12:50
12: 12 : 50

correct?
Correct.
So you were limited to the data that was

12: 12: 51

12:13:00
12: 13: 02

present in Dr. Boulanger s report?

Correct.
Did you feel that that was enough data to
reach your conclusions?

12: 13: 03

12:13:11
12: 13: 12

Yes.
At any point, did you think that it would have
been beneficial to have more data than was provided to
you in Dr. Boulanger
1s

12:13:13

12:13:26
12:13:29 12:13:32 12:13:40 12:13:45
12:13:47

report?

I based my conclusions on whatever data was

available.

If I had additional data, perhaps I could

reach additional conclusions, but the conclusions I

reached were completely justified by the data I had.

12:13:49
12: 13: 54

Because you understood your job being to look
at the reporting data of Dr. Boulanger, and render an
opinion from that; right?

12:13:59

12:14:00 12:14:00
12:14:04 12:14:10
12:14:11

Yes.
Mr. Chin never asked you to take audio

files

and start from scratch with digitally analyzing them;

correct?
Correct.

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph

.D.

August 15

2006

12:15:51

And your conclusion as to your second

opinion,

12:16:20
12:16:23

that it is likely that Aparthenonia and Funky Drummer
are copies -- I would like to ask you a question about
that opinion; okay?
MR. CHIN:

12:16:26
12:16:28 12:16:28

Objection.
Yes.
That is based on

You can answer.

12:16:29 12:16:30 12:16:35 12:16:42
12:16:43 12:16:43
12:16:44

THE WITNESS:
MR. OLSON:

similarities

that you perceived in the data presented in
Dr. Boulanger
1s

report; correct?

MR. CHIN:

Obj ection.

You can answer.

THE WITNESS:

I think it is more

than
iIo..

12:16:46 12:16:49
12:16:54

similari ties I perceived. I think I developed

objective evidence that they were. .
MR. OLSON:

?~;:~\~";~:)4-i::"' ..

Your opinion, then, is based

12:16:56
12: 17: 00

on what you have just referred to

as " objective

evidence of similarity between Aparthenonia and Funky

12:17:05

19.

Drummer ; is that correct?
MR. CHIN:

12:17:06
12:17:07 12:17:07

Objection.
Yes.
Anything else that forms the

THE WITNESS:
MR. OLSON:

12:17:12 12:17:13
12:17:17

basis of that second opinion?

No.
You agree, don t you, that frequency spectra

LegaLink,

Merrill Communications Company

(800) 869- 9132

"":. ,~:

STEVEN

W.

SMITH , Ph.

D.

August 15 , 2006

12:17:33

are a much more sensitive measure of the similarity of
audio wave forms than hearing; correct?
Yes, I would agree with that.

12:17:36 12:17:39
12:17:45
12: 17: 53

And you also agree that comparing the
frequency spectra of Aparthenonia and Funky Drummer is

12:17:57
12: 18: 00

an appropriate and powerful method of resolving if
Aparthenonia is a digitally edited and/or manipulated
copy of Funky Drummer; correct?

12:18:06
12:18:08
12:18:08 12:18:11
12: 18: 15

Correct.
So you don
1t

have an issue with

Dr. Boulanger chose to analyze the audio

the tools files;

correct?
Correct.
You think the methodology is

12:18:15 12:18;16
12:18:18

okay; correct?

The methodology, as far as preparation of the
raw data , I have no objection

12:18:22

to.
data

12:18:26
12: 18: 33 12: 18: 35

But it is the conclusions based on that
that you think are incorrect?

That'

s correct.

12: 18: 36

Do you know the name of the -- I know it
referred to in Dr. Boulanger s report and your report

12:18:47

12:18:51
12: 18: 54

as " Funky

Drummer, " but do you know the name of the
drum track that
1s

plaintiffs 1

at issue in this suit?

12:18:57
12:18:58

Yes.
What is it?

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006

13:41:31
13: 41: 34

And then I' ll write " first copy " next to the

line that has the lower case letters in the same order
as the original; okay?

13:41:37

13:41:39 13:41:39
13:41:45
13:41:48

Yes.

And I'

l1 write " second copy " next to the line

that has lower case letters out of order, where they

start with "
Yes.

Do you see that?

13:41:52 13:41:53
13:41:54

MR. CHIN:

I' m going to obj ect.

Do they

represent anything?

The original does not represent

13:42:01 13:42:03
13:42:06 13:42:07 13:42:08
13 : 42 : 11

Bust Dat Groove, and then the first copy does not
represent Aparthenonia.

You are just asking

hypothetically?
MR. OLSON:
MR. CHIN:

Yes.
Okay, I just wanted to understand;

I' m sorry.
MR. OLSON:

13:42:12 13:42:13 13:42:15
13:42:17
we

Dr. Smith, you understand what

re doing here; right?
MR. CHIN:

Obj ection.
You understand -- have you

MR. OLSON:

13:42:20 13:42:23

been confused about anything we have discussed about
the letters 1' m putting on this paper?

13:42:26
13:42:27

No, I believe this is just a direct

restatement of what is in my expert. report,

where the

13:42:30

capital letters A, B, C and D represent ' a drummer

LegaLink, A Merrill Communications Company

[phone]

STEVEN

W.

SMITH , Ph.

August 15 , 2006

13:42:34

striking an instrument four times in succession, where
those four would all be extremely similar -- what I

13:42:37

13:42:40

call " associated copies.
MR. OLSON:

13:42:43
13:42:45

Okay, good.

And if we take a wave form analysis of the
original being compared to a wave form analysis of

13:42:50
13:42:55
13:42:58

what I have labeled the second

copy, which bgins with

the drum strikes out of order, those wave forms are
going to look different; correct?
MR. CHIN:

13:43:00 13:43:02 13:43:05 13:43:08
13:43:14

Obj ection.

THE WITNESS:

Yes, and by " yes, "

I mean that

capital A and small B would not be an exact copy of
each other.

And likewise, capital B and small c would

13:43:20

not be an exact copy, ana so on.
MR. OLSON:

13:43:23
13:43:24

Right.

And the wave form analysis of the entirety of the loop that Dr. Boulanger performed in this case

13:43:29
13:43:33
13:43:37
13: 43: 39

showed differences between Bust Oat Groove and

Aparthenonia; correct?
MR. CHIN:

Obj ection.
I didn t understand that.

13:43:41

THE WITNESS:

13:43:41
13:43:42

(Document referred to herein marked

for identification Exhibit 35)
MR. OLSON:

13:43:42 13:43:46

going

to hand you what has

been marked previously by the court reporter -- it

LegaLink ,

A Merrill Communications

Company

[phone]

."

'.

STEVEN

W.

SMITH , Ph
~:..: 0

.D.

August 15 , 2006

15:48 :28

No, I believe that term

is all-encompassing,

15:48:34

what I' m

referring to.
MR. OLSON:

15:48:47

Why don 1

t

we go off the record?

15:48:49 15:48:53 15:48:55
15:48:58

We need to change the videotape.

THE VI DEOGRAPHER :
are going off the videotape

The time now is 3: 49.

record.

This also is the

conclusion of Tape 3 in the deposition of Dr. Steven

15:49:05
15:49:07
15: 53: 13

Smith.
(Discussion off the record)

(Recess taken, 3:49- 4:02

p.

16:00:14

THE VI DEOGRAPHER:

The time now is 4:02; we
This also marks the

16:01:28

back on the videotape record.

16:01:31

beglnning
Dr. Steven

of Tape
Smi th.

in the

videotape record of
couple

16:01:35
16:01:37

We have had
your name

folks Join

us.

Please state

for the record.

16:01:40 16:01:43 16:01:46

MR. KEEGAN:

Chris Keegan of Kirkland and

Ellis, representing Brian Transeau.
MR. TRANSEAU:

Brian Transeau.
Please proceed.

16:01:49
16:01:50
16:01:52

THE VI DEOGRAPHER:
MR. OLSON:

Dr. Smith, we were talking,

before we broke to change the tape, about

16:01:56
16:02:01

Aparthenonia, and what we were referring to as Funky
Drummer; right?

16:02:01 16:02:03

Yes.
And you had mentioned --

we were

talking about

167

LegaLink

Merrill Communications Company

[phone]

STEVEN

W.

SMITH , Ph

.D.

August 15 , 2006

16:02:05
16:02:08
16: 02: 11

whether there should be exact copies in Aparthenonia;

correct?

As compared to Funky Drummer.
I didn
1t

understand that question.

16:02:12

Let me start again, then.
You did not find any exact copies in

16:02:16
16:02:18

Aparthenonia from Funky Drummer; correct?

16:02:20
16:02:21 16:02:28

Correct.
You stated that one reason for that may be

because of noise that was introduced in translatlng
Funky Drummer from a vinyl to ,

16:02:38 16:02:41
16:02:41

a digital format;

correct?
That'

s a possibility, yes.

16:02:43
16:02:48

Aside from the noise that could have been
introduced, is there any other reason you would hot
find exact matches, or exact copies, in Aparthenonia,
from Funky Drummer?

16:02:51 16:02:55

16:02:56
16:03:01

Yes, the entire issue of ,

- that I would

call

the associated copy versus direct copy.

16:03:06
16:03:07 16:03:14

Can you explain that to me?

As we look at my Figure
seconds out of the 2 _

1, which shows the 1.
times.
and,

second bar, that is a

16:03:19
16:03:22

subsection of thls pattern, repeated 26

For instance, if plaintiffs are correct

16:03:26 16:03:29

for instance, AP-12 out of Aparthen9nia really is a
copy out of Funky Drummer, there s no reason to think

168

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006
AP- 12

16:03:32

that AP- 12 is a direct copy of FD- 12.

could

16:03:39
16:03:41

have been copied out of any of the other 26 copies
that we don
1t

see here on the page.

16:03:43 16:03:45
16:03:48
16:04:02 16:04:07

Now I understand.

Let me ask you a couple of questions about

that.
Are you aware that a drum rhythm can be
created by taking a single bar of drumming and

16:04:13
16:04:14

repeating it?
MR. CHIN:
Obj ection..

16:04:15
16:04:18

THE WITNESS:

It is my understanding that that

is how both of these are created -- repeating a bar,

16:04:20
16:04:24
....,0

either electronically or having a musician repeat
MR. OLSON:

it.

So a musician could just keep

16:04:28

drumming for a certain number of bars; right?

16:04:30
16:04:31 16:04:37

Yes.
On the other hand, a musician could drum;

correct?
Yes, a musician can drum.

16:04:40 16:04:43 16:04:49
16:04:51 16:04:51

And you could take one single bar of that

drummer 1 S drumming; right?

Yes.
And you could then digitally copy that bar,

16:04:56 16:05:00

and just place it one after another, and create a drum

rhythm, say, long enough for a standard .pop song;
169

LegaLink ,

A Merrill Communications

Company

(800) 869- 9132

STEVEN

W.

SMITH , Ph.

August 15 , 2006

16:05:03

right?
MR. CHIN:

16:05:03
16:05:04

Obj ection.

THE WITNESS:
MR. OLSON:

Yes.
And are you familiar that

16:05:05 16:05:10
16:05:14

hip-hop

music, for instance, drum beats are often

created for songs by sampling a small drum rhythm and

16:05:20
16:05:21 16:05:22
16:05:24

repeating it?
MR. CHIN:

Obj ection

.

THE WITNESS:

I have read that in one of the
1t

expert reports.
proceedings.

I wasn

aware of it until these

16:05:26
16:05:27 16:05:28

MR. OLSON:

Do you have any reason to

doubt that?

16:05:29 16:05:29
16:05:33 16:05:38

No.

So let I s

take that example.

I would like you

to assume that the Funky Drummer loop is created by

single bar that 1 s then
okay?

digitally copied and

repeated;

16:05:43
16:05:43
16:05:44

Yes.
If that' s the case , does it change your

16:05:48 16:05:49
16: 05: 52

opinion, in any way?
MR. CHIN:

Objection.
If Funky Drummer was created by

THE WITNESS:

16:05:59
16:06:04

taking the 2. 3- second pattern and ~epeating it the 26
times by digital copying, such that each of those 26

170

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15, 2006

16:06:09
16: 06: 13

individual copies was in fact a direct digital copy,
that would weaken my conclusion.
MR. OLSON:

16:06:15
16:06:17

Because in that case we would

expect you to find an exact copy from Aparthenonia --

16:06:20
16: 06: 26

in Aparthenonia -- from that 2. 6- second loop?
MR. CHIN:

Objection.

In Funky Drummer , or

16:06:29
16: 06: 30

Aparthenonia?
MR. OLSON:
It is now.

Is my question unclear to you?

16:06:32
16:06:34
16: 06: 37

That'

s what your lawyer is here
second loop, or 2.

for.

Is it a 2.

16:06:58 16:07:01
16:07:04

3, I believe.

Right.

I see that on Page 2 of your report.
Drummer was created by taking the

I f Funky

16:07:10 16:07:17
16:07:24

second pattern that Dr. Boulanger analyzes in his
report, and then repeating it, then we would expect,

if Aparthenonia is a copy of Funky Drummer, to find an

16:07:30

exact copy in Aparthenonia from Funky Drummer;

16:07:33
16:07:34

correct?
No, not what we were calling an exact copy,
but what I would call a "

16:07:37

direct copy. II

16:07:39
16:07:41 16:07:46

What is a direct copy?

A direct copy has the potential of including
noise in it, as opposed to an exact ,

copy, which

we

16:07:49

said was indistinguishable in any way.

171

LegaLink ,

A Merrill Communications

Company

[phone]

;,

STEVEN

W.

SMITH , Ph.

August 15 , 2006

16:10:32
16:10:44

So in the example that I just described, for

each new beginning of the loop, the first drum strike

16:10:48

would be an exact copy of the beginning of

the

16:10:50
16:10:51 16:10:52
16:11:04

previous loop; correct?
Yes.
Now if Aparthenonia was created from Funky

Drummer , as I have just asked you to assume it

exists,

16:11:10

you would expect to find direct copies in Aparthenonia

16:11:13
16:11:15 16:11:17
16:11:17

from Funky Drummer; correct?
MR. CHIN:

Objection.

THE WITNESS:
MR. OLSON:

Correct.
In your report, you don
1t

16:11:23 16:11:26
16:11:28
16: 11: 33

point to any direct copies from Funky Drummer in

Aparthenonia; correct?
In my report I stated that I did not believe
that there could be direct copies that

16:11:39 16:11:41
16:11:44

didn

t specifically look for direct

exist. copies, because I

was under the assumption, very different than what we
are now , about the nature of Funky Drummer being an

16:11:46
16:11:49 16:11:51

exact copy between the various

bars.

What was your assumption about Funky Drummer that you made, when you were performing your analysis?

16:11:56
16:12:00 16:12:02

My assumption is that the 26 or 27 bars of
Funky Drummer are associated copie~, .

meaning that

they

were not exact duplicates of each other

that they

174
LegaLink, A Merrill Communications Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006

16:12:06
16:12:11
16:12:22

were made by a drummer playing the bar over and

over.

Even if the drummer played the bar over and

over physically, there I s a possibility
Aparthenonia, if Aparthenonia is
MR. CHIN:

that you would

16:12:25
16:12:27

find a direct copy between Funky Drummer and

a copy; right?

16:12:31

Obj ection.
It is just on random chance, 1

16:12:33
16:12:37
in 26.

THE WITNESS:

16:12:38

MR. OLSON:

Did you look for any such

16:12:40
16:12:41

direct copy?
I didn
1t

have any way of distinguishing what

16:12:46

was a direct

copy, versus an associated copy.

What I

16:12:50
16:12:53
16:12:55 16:13:08

was able to do was just make a comparison of how
similar they were.

Is there anything you could do to determine

whether there I s a direct copy from Funky Drummer in

16:13:12 16:13:13
16:13:18
16:13:24

Aparthenonia?
I don
1t

believe there is, based on the data
1s

directly, and Dr. Boulanger

report.

Certainly if

you were looking at all 26 bars, there would be the

16:13:26
16:13:28 16:13:31
16:13:34

possibility of examining that data for

it.

Now I want you to assume something different.

I want you to go back to the assumption you had when
you did your analysis, which is that Funky Drummer was

16:13:36

created all by live drumming; okay?

175

LegaLink ,

A Merrill Communications

Company

(800) 8-69-9132

STEVEN

W.

SMITH , Ph

.D.

August 15 , 2006

16:13:40

Yes.
And that means that the drummer, just from the
beginning of Funky Drummer to the end, it is a drummer

16:13:41
16:13:43 16:13:47

physically playing the pattern; right?
Yes.
Not a digital loop that' s

16:13:49 16:13:50 16:13:55

repeating.

Correct.
If Funky Drummer was played, and it

16:13:56
16:14:09

entirely physically by a drummer, then it is your
opinion that if you compare anyone bar of Funky
Drummer to Aparthenonia, you may not find a direct
copy; correct?

16:14:16
16:14:18

16:14:21 16:14:22 16:14:23
16:14:28

Correct.
But if you were to look at all of Funky

Drummer, then if Aparthenonia is a copy, you should

16:14:32
16:14:37
16:14:38

find a direct copy in Aparthenonia from Funky Drummer;

correct?
MR. CHIN:

Obj ection.
There would have to be a direct

16:14:39
16:14:41
16:14:44

THE WITNESS:
copy present.

Whether or not you could find it or not

is another matter.
MR. OLSON:

16:14:47

Let'

s start with what has to

16:14:49 16:14:59
16:15:04

be present.
Would every drum strike in .

Aparthenonia have

to be a direct copy of some drum strike' in Funky

176

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph

.D.

August 15, 2006

16:15:08 16:15:08

Drummer?
If it was derived entirely from Funky Drummer.

16:15:15
16:15:18

There s certainly the possibility of that additional
content was added to Aparthenonia.
So then let' s talk only about the parts of

16:15:20
16:15:28

Aparthenonia that were allegedly created by copying
Funky Drummer.

16:15:32 16:15:33
16:15:34

Okay?

Yes.
And so we ll put aside for now any thing -

that

16:15:40

mayor may not have been addeq, okay?

16:15:43
16:15:44

Yes.
For every drum strike in Aparthenonia that'

16:15:49
16:15:54

allegedly a copy of a drum strike in Funky Drummer,

there must be the relationship between source drum
strike and direct copy; right?
MR. CHIN:

16:15:58
16:16:04 16:16:04

Obj ection.

THE WITNESS:
MR. OLSON:

Yes.
Accordingly, if you looked at

16:16:05
16: 16: 11

all the drum strikes in the totality of Funky Drummer, and even if a drummer physically played the whole drum

16: 16: 16
16: 16: 20

track, you should be able to find a source for every
direct copy in Aparthenonia; correct?
MR. CHIN:

16:16:35
16: 16: 39

Obj ection.
Again, a source would have to

16:16:42

THE WITNESS:

16:16:45

present.

Whether or not you could find' it is a matter

177

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15, 2006

16:16:47

of speculation, based on actually conducting the

16:16:56
16:16:58 16:17:05

experiment.
MR. OLSON:

For every piece of
s

Aparthenonia that 1

allegedly copied from Funky

16:17:08 16:17:23 16:17:26

Drummer, the source for that direct- copied piece must
exist wi thin Funky Drummer; correct?

Correct.
Now you have said a few times " if you could
find it.

16:17:26
16:17:31
16:1 7:34

What do you mean by that?

It would be my expectation that if

16:17:37

conducted this same kind of analysis of Dr. Boulanger,
tha t we

16:17:43 16:17:45
16:17:47

would find
don

it,

but without actually

doing

that, factors

know if doing that there would
from finding it.

other

which would prevent you

16:17:53
16:18:05
16:18:11

If you or Dr. Boulanger were to look at every

drum strike in Funky Drummer, and you were unable to
find any exact copies between Aparthenonia and Funky

16:18:16
16:18:18

Drummer, would that change your opinion in this case?
MR. CHIN:

Obj ection.
Not exact copies.
If we were

16:18:19 16:18:26 16:18:29
16:18:30
16:18:34

THE WITNESS:

not able to find any direct copies it would certainly
influence it.
MR. OLSON:

I want to take both those in

turn.

I understand what you are s~ying, but let'

16:18:36

just talk about exact copies

first, all- right?

Using
178

LegaLink

Merrill Communications Company

[phone]

STEVEN W. SMITH , Ph.

August 15 , 2006

16:18:39
16:18:43

the definition we have agreed to of " exact copy.

Okay?

16:18:43
16:18:44

Yes.
If you were to look at every drum strike in

16:18:52

Funky Drummer, and you could not find a single exact
copy between Aparthenonia and Funky

16:18:55
16:18:59 16:19:01 16:19:03
16:19:04

Drummer, would

that affect your opinion in this case?
MR. CHIN:

Objection No.

THE WITNESS:
MR. OLSON:

Not at all?
talk about direct copies.

16:19:06 16:19:06
16:19:21

No.

Now let 1

s

Well, first, I think it is clear, but could
you state your definition of " direct copy
MR. CHIN:

16:19:28

16:19:30
16:19:34

Objection.

Asked and answered.

You can answer.

16:19:35

THE WITNESS:

A direct copy is a copy that

16:19:39
16: 19: 45

also includes the effective noise.
MR. OLSON:

So it is a copy from an

16:19:56
16:20:01
16:20:04

original that has some differences from noise in the
copying process; right?
MR. CHIN:

Obj ection.

16:20:05
16:20: 07

THE WITNESS:

Yes.

For instance, if there was

a drum strike on a vinyl record, an~ I copied that

16:20:10

into a digital medium, I would call those direct

179

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph.

August 15 , 2006

16:20:14 16:20:17

copies - -

meaning there is some noise introduced into

the process by the time it got to the digital signal.
MR. OLSON:

16:20:21
16:20:34

Se if you were to conduct an

analysis of all the drum strikes in Funky Drummer, and

16:20:40

couldn 1

t

find a single drum strike in Aparthenonia

16:20:45
16:20:48

that was a direct copy of any drum strike in Funky

Drummer, would that change your opinion in this
MR. CHIN:

case?

16:20:50

Obj ection.

16:20:52
16:20:55
16:20:58

THE WITNES S

Yes, if I was able to conclude

that any of the potential matches I found were not
direct copies.

But deciding that something is a

16:21:06
16: 21 :11

direct copy versus an associated copy would be a very
I don t know if you difficul t task - - an experiment

16:21:15
16:21:24

could do that or not.
MR. OLSON:

So you don t know, one way or

16:21:2
16:21:35

another, if FFT would allow you to say when drum
strikes copied from a vinyl album into a digital
format are direct copies?
MR. CHIN:

16:21:40
16:21:45

Objection.
Is that right?

16:21:46
16:21:47

MR. OLSON:

That 1 S correct.

The only way you could

16:21:49
16:21:51

actually tell is to actually do the experiment, and

see how compelling the data

are.

16:21:53
16:21:55

You have not done that experiment?
I have not.

180
LegaLink, A Merrill communications Company
[phone]

CERTIFICATE OF REPORTEE
I, George Schumer.. a Certified Shorthand

Reporter. hereby certify

that the witness in the

forgoing matter was by
within-entitled cause;

me duly sworn to

te~l the truth..

the whole truth and nothing but the truth in the

That said proceeding was taken down
shorthand by me.. a

in

disinterested ' person..

at the time and

place therein stated, and that the testimony of the
witness was thereafter: reduced to typewriting.. by

said

computer, under my direction and supervision;
That before comp~etion of the
review of th~ transcript

was

deposition. was not requested.

If requested..

any changes

made by the deponent (and

provided to the reporter)
appended hereto-

during the period allowed are
said of this

1: further certify that I am not of counsel
attorney for either or
deposition.. nor in

any of the parties to

the

any way vested in the outcome

cause, and that X am not related to any of the pa~ties

thereto.
DATED:
If"" "-J t-

l.l, u.u
CSR 337-6

lJ/-y'

GeoJ;"ge Schumer...