Arista Records LLC et al v. Lime Wire LLC et al

Filing 175

DECLARATION of Steven Gribble in Support re: 101 MOTION for Summary Judgment (Tertiary)., 108 MOTION for Summary Judgment (Vicarious).. Document filed by M.J.G. Lime Wire Family Limited Partnership, Lime Wire LLC, Lime Group LLC, Mark Gorton. (Baker, Charles)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; BMG MUSIC; CAPITOL RECORDS, INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE RECORDS; LAFACE RECORDS LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.; and WARNER BROS. RECORDS INC., Plaintiffs, v. LIME GROUP LLC; LIME WIRE LLC; MARK GORTON; and GREG BILDSON, and M.J.G. LIME WIRE FAMILY LIMITED PARTNERSHIP Defendants. DECLARATION OF DR. STEPHEN GRIBBLE IN SUPPORT OF DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I, Steven D. Gribble, the undersigned, hereby declare as follows: 1. My name is Steven D. Gribble. I am over eighteen years of age, of sound mind,

ECF Case 06 CV. 5936 (GEL)

and in all ways qualified and competent to make this declaration. I have personal knowledge of the facts contained in this declaration and they are true and correct. 2. I am an Associate Professor in the Department of Computer Science and

Engineering at the University of Washington. I received my masters and Ph.D. degrees in Computer Science from the University of California at Berkeley, and my B.Sc. degree in Computer Science and Physics from the University of British Columbia. My teaching and

research in part focuses on peer-to-peer systems, content delivery systems, and the Web. More broadly, my research specializes in computer operating systems, distributed systems, and computer security, and I have taught both undergraduate and graduate courses on these topics. I make this declaration in support of Defendants' reply in support of Defendants' motion for summary judgment 3. I make this declaration based on my own personal knowledge and experience,

including my review of certain documents. If I am called as a witness before the Court, I could and would testify to the matters set forth herein. 4. I have reviewed the declaration of Thomas Sehested from DtecNet and having the

following comments to make. (a) I agree that the fact that the two hashes are the same make it almost certain that the two files are identical. (There is an astronomically small chance that they are not, given how hashes work, but with extremely high certainty they are -- the footnote on the bottom of page 2 of the DtecNet declaration discusses this.) (b) The fact that two users have a file with the same hash implies that the two users possess a file with (likely) the same contents. It does not, however, imply that those two users shared the file with each other, or that one copied the file from the other. (c) There are many different ways that the two users could have ended up with the same, identical file. They could have both obtained it from the same, non-P2P

source (e.g., if they both downloaded it from a web site, or possibly from different web sites that happen to have obtained some other way.) They could have obtained it from some non-gnutella-P2P network. They could have obtained it from some non-LimeWire

1463568v1

2

Gnutella peer. It could be that this file is available on all of these sources, and each user obtained it using a different source. (d) Just because DtecNet was able to download the file from the users does not mean anybody else downloaded that file from the users. From the declaration I reviewed, it appears as though DtecNet has evidence that those users (or somebody using their IP addresses) uploaded the file to DtecNet that one time. Their declaration does not present any evidence that the users uploaded that file at any other time, or any other files any other time. (e) Paragraph 5 of Mr. Sehested's declaration is ambiguously worded. Saying

"one user's file is a copy of the other" could mean a few things. A correct conclusion is that one user's file, with high probability, has the same content as the other user's file. However, a reader could interpret this to mean that one user copied the file from the other user, but that's not a correct conclusion to draw from the evidence in this declaration, or from the first phrase of paragraph 5. (f) Paragraph 6 Mr. Sehested's declaration implies DtecNet did download the files from the users. It is worth validating that this is actually true -- that they downloaded the full files -- as opposed to simply doing searches, and looking at the names/hashes in search results coming back from the users' computers. If they did not actually download the full files, it is hard to argue that the two users do in fact have those files; the fact that the user's computer knows the hash of a file is not proof that the user's computer possesses a copy of the file. If they did download the full files, it is strange that the declaration relies on comparing hashes of the files, rather than the full content of the files, to assert that the files contain the same content.

1463568v1

3

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that this declaration is executed in Kahului, Maui, Hawaii on November 7, 2008.

Steven D. Gribble, Ph.D.

1463568v1

4