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

Filing 378

DECLARATION of Melinda E. LeMoine in Support re: 234 MOTION for Permanent Injunction.. Document filed by 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., Warner Bros. Records Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4 (Under Seal), # 5 Exhibit 5 (Under Seal), # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Lemoine, Melinda)

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

Doc. 378 Att. 7

Dockets.Justia.com

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ECF CASE 06 Civ. 05936 (GEL) -----------------------------------x ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; BMG MUSIC; CAPITOL RECORDS, INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE RECORDS; LAFACE RECORDSLLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS, INC.; VIRGIN RECORDS AMERICAN, INC.; and WARNER BROS. RECORDS INC., Plaintiffs, - against LIME WIRE LLC; LIME GROUP LLC; MARK GORTON; GREG BILDSON; and M.J.G. LIME WIRE FAMILY LIMITED PARTNERSHIP, Defendants. -----------------------------------x March 6, 2008 9:39 a.m. CONFIDENTIAL TRANSCRIPT Deposition of SAMUEL A. BERLIN, taken by Plaintiffs, pursuant to Notice, held at the offices of Cravath Swaine & Moore, LLP, 825 Eighth Avenue, New York, New York, before Jineen Pavesi, a Registered Professional Reporter, Registered Merit Reporter, Certified Realtime Reporter and Notary Public of the State of New York.

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BERLIN - CONFIDENTIAL ever considered implementing a Peerguardian plug-in? MR. BAKER: A. Q. No. Does LimeWire have a glossary Objection, form. 12:15:11PM 12:15:12PM 12:15:14PM 12:15:16PM 12:15:19PM 12:15:20PM 12:15:24PM 12:15:25PM A. No, I don't know what you're MS. SANKOORIKAL: "Simpp.xml." (Exhibit 258, document titled "Simpp.xml", was marked for identification, as of this date.) (Witness perusing document.) Q. A. Q. A. Q. What is signed message I am not sure. Have you heard of something Yes. What is simpp, simpp? parameter passing? I will mark 12:15:25PM 12:15:27PM 12:15:43PM 12:15:43PM 12:15:52PM 12:15:53PM 12:15:53PM 12:15:54PM 12:15:54PM 12:16:41PM 12:16:42PM 12:16:44PM 12:16:48PM 12:16:50PM 12:16:52PM 12:16:52PM

that it provides to users, a glossary, a LimeWire glossary, have you ever heard of it? talking about. as Exhibit 258 a document titled

known as simpp?

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BERLIN - CONFIDENTIAL A. Q. A. It is a mechanism LimeWire uses 12:16:56PM 12:17:00PM 12:17:02PM 12:17:03PM 12:17:06PM 12:17:09PM 12:17:11PM 12:17:13PM 12:17:18PM 12:17:20PM 12:17:25PM 12:17:28PM 12:17:29PM 12:17:30PM 12:17:34PM 12:17:39PM 12:17:41PM 12:17:44PM 12:17:51PM 12:17:55PM 12:17:57PM 12:18:02PM 12:18:04PM When you say each other, what to send messages to each other. does that mean? send it out to clients and they will send it to other LimeWire clients. Q. When you say LimeWire can sign a message, you're talking about LimeWire, you LimeWire-A. Q. A. Q. The company, yes. Was simpp developed by The protocol, yes. You mentioned that it was used How does it communicate those messages to other LimeWire clients? A. LimeWire, we assign this xml, that's what the numbers are at the top, the alphanumeric numbers, it is a signature, other LimeWires receive the message after we send it, verify it is secure and forward it on.

LimeWire can sign a message and 12:17:04PM

LimeWire, the company?

to communicate messages.

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BERLIN - CONFIDENTIAL Q. The alphanumeric numbers that 12:18:07PM 12:18:09PM 12:18:13PM 12:18:15PM 12:18:18PM 12:18:22PM 12:18:28PM 12:18:32PM 12:18:32PM 12:18:35PM 12:18:38PM 12:18:41PM 12:18:42PM 12:18:48PM 12:18:51PM 12:18:54PM 12:18:58PM 12:19:00PM 12:19:01PM 12:19:07PM 12:19:10PM 12:19:11PM 12:19:12PM 12:19:14PM you reference at the top, are those the numbers that LimeWire, the company, assigns to it so that other LimeWire clients that see the simpp.xml file know that it is an authentic version of the xml file that LimeWire, the company, is distributing? A. We don't decide what those alphanumeric letters or numbers are, we typographically secure signature. Q. But this is in fact the signature, this alphanumeric signature, is in fact what the other LimeWire clients look for to verify that in fact it is an authentic LimeWire LLC simpp that is being distributed, correct? A. Q. A. Q. Yes, they verify this message What is the simpp.xml file A variety of things. Can you give me some examples is authentic based on that. actually used for?

of what it is used for?

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BERLIN - CONFIDENTIAL A. Sure. Changing various properties in the client, things related to the DHT, related to what to display in the UI, what version of bugs should or should not be sent, when to publish locations in the DHT, if you can click on a link to send you to a browser, what the title of the browser tab should be called, how long to delay after downloading an update message. I can go on if you want. Q. A. of them are. be alive before it joins the DHT, how long to try downloading an update to LimeWire before giving up, what URL to go to when you click on the link in the client, how large your acquirer outtable should be, how long to delay after receiving or attempting to download updates. single one is. Feel free to keep going. I am not really sure what some 12:19:17PM 12:19:17PM 12:19:20PM 12:19:29PM 12:19:31PM 12:19:36PM 12:19:39PM 12:19:41PM 12:19:43PM 12:19:48PM 12:19:50PM 12:19:55PM 12:19:56PM 12:19:57PM One is allowing-- a leaf should 12:19:58PM 12:20:06PM 12:20:11PM 12:20:16PM 12:20:19PM 12:20:22PM 12:20:25PM 12:20:33PM 12:20:37PM

I am not really sure what every 12:20:35PM

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BERLIN - CONFIDENTIAL Q. A. Q. Are there others that you have Yes. With regard to this list, are 12:20:39PM 12:20:40PM 12:20:41PM 12:20:43PM 12:20:44PM 12:20:53PM 12:20:55PM 12:20:56PM 12:20:58PM So you have set some of these 12:20:58PM 12:21:00PM 12:21:03PM 12:21:06PM 12:21:10PM 12:21:12PM 12:21:16PM 12:21:19PM MR. BAKER: Q. A. Or setting? Well, the other clients aren't Objection to form. 12:21:20PM 12:21:21PM 12:21:22PM 12:21:25PM 12:21:28PM 12:21:29PM 12:21:31PM skipped over?

these all parameters that are being controlled by LimeWire LLC, are being set by LimeWire LLC? A. parameters. Q. parameters and once they are set and another LimeWire client receives the updated version of the simpp.xml from LimeWire LLC, it will then in turn update its simpp.xml to adopt the settings for the parameters that LimeWire LLC is controlling? Yes, we can set certain

receiving it directly from LimeWire, no, from LimeWire LLC, no. When they receive a simpp message from anyone, if it is secure,

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BERLIN - CONFIDENTIAL according to the signature, they will update their client with the latest one. Q. long. have referenced, are those settings that are set by LimeWire LLC? A. Q. Yes. So once they are set by My question probably was so 12:21:34PM 12:21:36PM 12:21:40PM 12:21:42PM Some of these settings that you 12:21:43PM 12:21:45PM 12:21:47PM 12:21:50PM 12:21:51PM 12:21:53PM 12:21:57PM 12:22:00PM 12:22:01PM 12:22:04PM 12:22:06PM 12:22:08PM 12:22:12PM 12:22:18PM 12:22:19PM 12:22:20PM I don't know. Is it 50? I don't know. Is it more than 50? 12:22:20PM 12:22:20PM 12:22:21PM 12:22:21PM

LimeWire LLC and another client receives, knows that there is a new version of simpp, whether it is from LimeWire LLC or another LimeWire client, those set parameters, the ones that are set by LimeWire LLC, will then be incorporated into the LimeWire client that that user has, correct? A. Q. there. A. Q. A. Q. Yes. How many such parameters are

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BERLIN - CONFIDENTIAL A. Q. A. Q. A. Q. I really don't know. 12:22:22PM 12:22:39PM 12:22:41PM 12:22:44PM 12:22:46PM 12:22:47PM 12:22:49PM 12:22:51PM 12:22:53PM 12:22:55PM 12:22:57PM 12:22:59PM Q. A. Q. A. Q. What is the current version? I don't know. Is it greater than 388? I don't know. Have you ever changed any of 12:22:59PM 12:23:01PM 12:23:02PM 12:23:05PM 12:23:10PM 12:23:15PM 12:23:17PM 12:23:20PM 12:23:20PM 12:23:21PM How often does LimeWire update 12:22:23PM Infrequently.

the simpp.xml?

When you say infrequently, what 12:22:43PM I don't think there is any Let's take a look it at the

do you mean, once a week, once a month? specific time frame. second line, it says version 388; does that mean there have been 388 versions of this simpp.xml? A. 388. It means this one is version

these simpp settings to the LimeWire LLC simpp.xml file? A. Q. A. Yes. Which ones did you set? I don't know offhand.

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BERLIN - CONFIDENTIAL Q. A. Can you identify any of the The links for the UI after 12:23:22PM 12:23:24PM 12:23:25PM 12:23:29PM 12:23:35PM 12:23:35PM 12:23:37PM 12:23:40PM 12:23:42PM 12:23:45PM 12:23:50PM 12:24:01PM 12:24:04PM 12:24:06PM 12:24:07PM 12:24:09PM 12:24:10PM 12:24:12PM 12:24:16PM 12:24:17PM 12:24:25PM 12:24:26PM 12:24:29PM ones that you have set? search click link, the browser title, a variety of them. Q. Apart from those two, can you think of any others that you have ever set for LimeWire LLC? A. The UI intro click link, the content authorities, there is all panel search warning, latest bug version. Q. Why does LimeWire distribute a simpp.xml file, what is the purpose of this xml file? A. Q. To set properties after the This is to set properties client has been installed. within all LimeWire clients once LimeWire has been installed? A. Q. Yes.

With regard to this document in 12:24:23PM

particular, I am going to represent to you that it is a printout from Windows notepad of a simpp.xml file taken from the

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BERLIN - CONFIDENTIAL application data folder associated with the recently downloaded copy of LimeWire basic, which had previously been connected to the Gnutella network. page, there are what I believe a series of IP addresseses prefaced by filtersettings.hostileips. What does that setting, filtersettings.hostileips, control? A. Q. A. The setting is used to -network level blacklist. What do you mean by a network Settings listed here are level blacklist? exchanged throughout the network, so the entire network uses them as a blacklist. Q. So the entire network, meaning any LimeWire client that has this version of the simpp.xml will treat all of these -is what follows that a series of IPs? A. Yes, I should correct myself, 12:24:36PM 12:24:38PM 12:24:41PM 12:24:43PM 12:24:48PM 12:25:00PM 12:25:01PM 12:25:06PM 12:25:09PM as a 12:25:13PM 12:25:17PM 12:25:33PM 12:25:35PM 12:25:38PM 12:25:42PM 12:25:44PM 12:25:47PM 12:25:51PM 12:25:55PM 12:26:00PM 12:26:02PM 12:26:04PM 12:26:06PM

If you could turn to the second 12:24:45PM

it is not the entire network because there are people on the network that are not

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BERLIN - CONFIDENTIAL LimeWire, so it is all LimeWire. Q. So it is the LimeWire portion of the network, anyone who has this version of the simpp.xml, would put the IP addresses following filtersettings.hostileips into a blacklist, is that correct? A. Q. A. ranges. It is a little hard to read through it. Q. A. What do you mean by blacklist? That our clients won't connect Yes. Are these individual IP I can read through the whole 12:26:07PM 12:26:09PM 12:26:10PM 12:26:12PM 12:26:19PM 12:26:20PM 12:26:23PM 12:26:24PM 12:26:24PM 12:26:29PM 12:26:30PM 12:26:32PM 12:26:37PM 12:26:39PM 12:26:40PM 12:26:48PM 12:26:50PM 12:26:52PM 12:26:54PM 12:26:59PM 12:27:01PM 12:27:05PM 12:27:08PM

addresses, are there ranges as well? thing, at first glance it looks to be just

to them, download from them, receive searches results from them. Q. connect, receive search results and can't download from them, does that mean anyone, any user that's got an IP associated with something that's on this blacklist cannot

When you say that clients can't 12:26:56PM

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BERLIN - CONFIDENTIAL connect to the network? A. Yes. 12:27:12PM 12:27:12PM 12:27:17PM 12:27:18PM 12:27:23PM 12:27:24PM 12:27:29PM 12:27:34PM 12:27:39PM 12:27:42PM 12:27:43PM 12:27:44PM 12:27:48PM 12:27:49PM 12:27:55PM 12:27:57PM 12:27:59PM 12:28:00PM 12:28:04PM 12:28:07PM 12:28:09PM 12:28:11PM 12:28:13PM

They can't connect to LimeWires 12:27:13PM that are using this, they can connect to other people running, other vendors running Gnutella. Q. So anyone who has any LimeWire user that has this simpp.xml will not see any of the users at the IP addresses in the simpp.xml file, is that correct? A. I can't guarantee they won't see them, there might be places in the code where it is not checking for this, but it does prevent them from connecting to, uploading to, downloading from. Q. Before you said this simpp.xml Do you have any sense of whether it has been updated a dozen times? A. Q. A. Based on the number 388, yes. So you would interpret the 388 No, I would say it has been file was updated infrequently.

to mean it has been updated 388 times? updated more than a dozen times.

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BERLIN - CONFIDENTIAL Q. A. Q. A. Q. A. Q. A. skip. Q. Going back to this filterssettinghostile.ip, how were these IPs selected for the blacklist, as you term it? A. I don't do it. From what I know, it uses statistical analysis to measure who on the network is sending and receiving an inordinate number of traffic or inordinately large amount of traffic and then those are blacklisted. Do you think it has been Yes. Do you think it has been Most likely. Do you think it has been Most likely. Do you think it has been I don't know, the numbers can 12:28:14PM 12:28:15PM 12:28:17PM 12:28:17PM 12:28:18PM 12:28:19PM 12:28:21PM 12:28:22PM 12:28:23PM 12:28:24PM 12:28:25PM 12:28:26PM 12:28:28PM 12:28:30PM 12:28:31PM 12:28:37PM 12:28:40PM 12:28:41PM 12:28:43PM 12:28:45PM 12:28:47PM 12:28:50PM 12:28:52PM 12:28:55PM updated a hundred times?

updated 200 times?

updated 300 times?

updated 388 times?

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BERLIN - CONFIDENTIAL THE VIDEO TECHNICIAN: end of tape 7 and concludes today's deposition of Samuel A. Berlin. (Time noted: 6:25 p.m.) Going 06:24:49PM 06:24:51PM 06:24:53PM 06:24:55PM 06:24:58PM off the record at 6:25 p.m., this is the

_____________________ SAMUEL A. BERLIN Subscribed and sworn to before me this day of , 2008.

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CERTIFICATION

I, Jineen Pavesi, a Registered Professional Reporter, Registered Merit Reporter, Certified Realtime Reporter and a Notary Public, do hereby certify that the foregoing witness, SAMUEL A. BERLIN, was duly sworn on the date indicated, and that the foregoing is a true and accurate transcription of my stenographic notes. I further certify that I am not employed by nor related to any party to this action.

JINEEN PAVESI, RPR, RMR, CRR

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