Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 1 of 39
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 2 of 39
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`Page 1
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` UNITED STATES DISTRICT COURT
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` SOUTHERN DISTRICT OF NEW YORK
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` - - - - - - - - - - - - - - - x
`
` NETWORK-1 TECHNOLOGIES, INC., :
`
` Plaintiff, :
`
` vs. : 14 Civ. 2396 (PGG)
`
` GOOGLE, LLC and YOUTUBE, LLC, : 14 Civ. 9558 (PGG)
`
` Defendants. :
`
` - - - - - - - - - - - - - - - x
`
` VIRTUAL VIDEOTAPED DEPOSITION OF: TREVOR DARRELL
`
` DATE: Friday, July 10, 2020
`
` TIME: 1:11 p.m. EDT
`
` LOCATION: Remote Proceedings
`
` REPORTED BY: Denise M. Brunet, RPR
`
` Reporter/Notary
`
` Veritext Legal Solutions
`
` 1250 Eye Street, N.W., Suite 350
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` Washington, D.C. 20005
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` Job No. CS4168610
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`800-567-8658
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`973-410-4098
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`Veritext Legal Solutions
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 3 of 39
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` Q What is your understanding of what it
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` means for knowledge or use to be accessible to the
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` public?
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` A I believe that's a legal matter and I'm
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` not sure I've -- I don't recall having an expert
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` opinion on that, but my view -- if you asked me
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` the question nonetheless, I believe that it would
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` have to be available without undue bar -- you
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` know, available in a library or available on a
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` website or available for sale somewhere.
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` I understand that's a complicated issue.
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` I've heard many different views over the years. I
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` believe it's a legal matter, and I commented to
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` the extent that I have views or analysis
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` specifically elsewhere in the report.
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` Q So are you offering opinions as to
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` whether -- I'll put aside publications and things
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` of that nature for the moment. Are you offering
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` opinions as to whether particular systems that
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` that you describe were accessible to the public?
`
` A I believe they were, and that was in my
`
` opinion. I believe I'm assuming that as a legal
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 4 of 39
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` matter. I have it myself -- I'm relying on the
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` deposition testimony and other items that I refer
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` to later in the report for that -- my belief is
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` that's a legal matter, so that's something that
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` has to be determined by the court. If it a matter
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` for which I am entitled to have an opinion, then I
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` would have the opinion that it is accessible.
`
` Q Okay. And in the last sentence of this
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` paragraph 28, you write about a patent claim
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` potentially being invalid if the invention was
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` made in this country by another who had not
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` abandoned, suppressed or concealed it. Do you see
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` that?
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` A Yes.
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` Q What's your understanding of what that
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` abandoned, suppressed or concealed language means?
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` A Again, formally, I believe that's a legal
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` matter, and I don't know that I have a legal
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` opinion on that point. But, you know, if I tried
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` to explain it to a non-lawyer, I would say you're
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` building something, you created it and you
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` continued to develop it into a final product or a
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 5 of 39
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`Page 97
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` something?
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` MR. HARDY: Sorry, I was just going to
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` note for the record that Mr. Berkeley, who is
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` in-house counsel at Google, did not reconnect
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` after the last break and so has not been on the
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` call or Google Meet for the discussion of Audible
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` Magic, and won't be, because there is some
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` potential confidential information. Sorry to
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` interrupt.
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` MR. LEDAHL: That's okay.
`
` BY MR. LEDAHL:
`
` Q Let me repeat my question. Mr. Darrell,
`
` do you have any basis for suggesting that a beta
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` release of the Clango system occurred prior to
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` August 9th, 2000?
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` A Not other than I testified to in
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` paragraph 135 of my report.
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` Q And is that just relying on the testimony
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` of Mr. Schrempp?
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` A I believe so.
`
` Q What was different between the alpha
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` release of Clango and the beta release of Clango?
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 6 of 39
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`Page 98
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` MR. HARDY: Objection to form.
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` THE WITNESS: I'd have to check to see.
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` It's been such a long time since I did all this
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` work. I don't have it memorized.
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` I mean, in general terms, a beta test is
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` a debugged version, an approved version, probably
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` was more reliable and more polished, and you
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` expect it to be something you would show to users
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` who weren't necessarily your friends who were
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` going to kick the tires on the product, if you
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` will.
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` I don't recall whether I offered an
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` opinion on any specific code differences between
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` alpha and beta. It's possible I do later in the
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` report. I just don't recall.
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` BY MR. LEDAHL:
`
` Q Can you point me to where in the report
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` you identify any code similarities or differences
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` between the alpha and beta releases that you
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` discuss?
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` A Since I just testified that I couldn't
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` recall, it would be difficult to do so without
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 7 of 39
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`Page 99
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` reading my entire report to check if it was there.
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` Q So having prepared for several days and
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` reread your report, you are unable to tell me any
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` differences between the Clango alpha release that
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` you're relying on in your report and the Clango
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` beta release that you're relying on?
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` A Are you just trying to restate the
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` previous question?
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` Q Do you not understand my question, sir?
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` A I think I answered it.
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` Q So you're unable to recall any
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` differences between the Clango alpha and Clango
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` beta release, correct?
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` A I don't remember any specific examples
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` that I testified to where I've claimed that the
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` code changed from the alpha to the beta versions
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` in my report. I mean, my report is 246 pages and,
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` you know, I don't recall having an opinion on that
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` in my report.
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` Q Do you recall ever reviewing the specific
`
` source code that was compiled into a Clango beta
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` release?
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 8 of 39
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`Page 102
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` aware of that, for example, on page 97 and on
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` page 108 and the following two pages. And I also
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` cite code on pages 115, 117, and so on and so
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` forth.
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` Q All right. Well, let's look at the code
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` that you referenced on page 97. Is this code that
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` appears on page 97 of your report code that was
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` compiled into the Clango alpha release?
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` A I believe it has, and I believe I relied
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` on the testimony of the creators of this system
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` for that opinion.
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` Q So you did not have a separate
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` compiled -- or directory of the code that was
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` itself actually compiled into the alpha. You're
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` relying on the testimony that this is code that
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` was in the alpha?
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` A Whatever my opinions are, I believe my
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` basis for them in these paragraphs are the
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` testimony from the creator's depositions.
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` Q And that's it, the testimony, right?
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` A That is it.
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` Q There was no other document, for example,
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 9 of 39
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`Page 103
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` that indicated that this particular code on
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` page 97 of your report was actually part of the
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` Clango alpha release, correct?
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` MR. HARDY: Objection to form.
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` THE WITNESS: I don't recall seeing
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` anything like that.
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` BY MR. LEDAHL:
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` Q Okay. And you also mention code that you
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` excerpted starting at page 108 of your report; is
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` that right?
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` A Yeah.
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` Q Now, this code on page 108 is an include
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` file?
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` A Well, I believe it's literally an SCCS
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` file. But it's an SCCS file that represents an
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` underlying include file.
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` Q When you say an SCCS file, what do you
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` mean by that?
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` A As described in paragraph 189 of my
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` report, it's the file from a source code control
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` system. The name of that -- of the particular
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` source code control system was, unsurprisingly,
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 10 of 39
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`Page 104
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` SCCS.
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` Q And what is include file?
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` A It's a file that was used -- in
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` particular, this is an include file in the C
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` programming language, and it is part of the source
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` code for a computer application or a computer
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` program.
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` Q And an include file identifies other
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` source code files to be included in the
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` definitional and functional sense of the code. Is
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` that fair?
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` A I actually think it might be slightly
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` more fair to reverse it and say an include file is
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` a file that another source code file includes to
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` access routinely defined or included elements.
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` Q Okay. Was the source code that you
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` excerpt on page 108 of your report included in the
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` Clango alpha release?
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` A I can't recall which release it was, as I
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` sit here today. I would have to refresh my memory
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` from the report.
`
` Q Well, let me direct you to the text you
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 11 of 39
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`Page 105
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` have in paragraph 189. You offer the assertion
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` that this source code file was created on
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` July 26th, 2000. Do you see that?
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` A Yes.
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` Q And that's three weeks after the date you
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` say the Clango alpha release took place, right?
`
` A That's correct.
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` Q So unless people at Audible Magic were
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` engaged in time travel, this file would never have
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` been a part of any alpha release of the Audible
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` Magic Clango system, correct?
`
` A No.
`
` Q So it's your testimony that this file
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` created on July 26th was included in a release
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` created at least three weeks earlier, according to
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` your testimony?
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` A I believe my testimony is this is
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` representative and is consistent with Mr. Wold's
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` testimony. And as you know from other discussions
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` in this matter, the source code control system,
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` this just shows the latest date this file could
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` have been created. This file may have existed for
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 12 of 39
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`Page 106
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` months or years before. And indeed this file was,
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` according to the testimony, most likely obtained
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` from a external open source repository that had
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` existed for years and reflected source code and
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` algorithmic knowledge that one of ordinary skill
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` in the art would be very familiar with it.
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` So I believe my testimony in
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` paragraph 189 is clear, which is that it's
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` consistent with the testimony regarding the alpha
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` release.
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` Q So as to the functioning of the alpha
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` release, am I understanding correctly that you're
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` relying on testimony and that the code that you
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` reviewed was not actually the code from that alpha
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` release?
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` MR. HARDY: Objection to form.
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` THE WITNESS: I don't believe I've give
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` an opinion on that one way or the other. It's
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` very consistent with the testimony. And the
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` testimony was that they incorporated available
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` implementations of approximate nearest neighbor
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` searching, and that this file is consistent with
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 13 of 39
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`Page 107
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` what they did at the time even though the date on
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` this -- the date that they have on the record
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` was -- perhaps it had been moved -- in fact, if
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` you look at the source code control metadata, it
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` appears that they cleaned up or relabeled or
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` renamed the files.
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` This file is clearly based on an
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` implementation of algorithms that, you know, date
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` from 1997 to 1993 that were, according to the
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` testimony, not written by Muscle Fish, but they
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` were downloaded and used by Muscle Fish. So this
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` file is just one of many copies that had likely
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` been around the web that you could get.
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` And so the fact that this file has a date
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` on it of July of 2000 is not evidence that they
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` didn't have access to the source code earlier;
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` it's just this happens to be the date that the --
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` whatever archive process had produced.
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` I find the source file useful in showing
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` an illustration of a contemporaneous example of
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` what the testimony was talking about.
`
` BY MR. LEDAHL:
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 14 of 39
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`Page 108
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` Q What's the first date that this source
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` file was in Audible Magic Clango software?
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` A I'm not sure.
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` MR. HARDY: Objection to form. Sorry.
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` BY MR. LEDAHL:
`
` Q You don't know?
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` A I don't know a specific date. I only
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` know the testimony of the creators.
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` Q And you wrote that Mr. Wold created
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` kd-tree code in July of 2000 in paragraph 189 of
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` your report, correct?
`
` A Correct.
`
` Q So do you have any basis to suggest that
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` that file was created before July 5th, 2000?
`
` A Yeah. The file he created -- I believe
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` his testimony is not that he wrote this, but that
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` he had downloaded it and used it. His testimony
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` is that they had a version that was running prior
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` to this. Obviously, there's no evidentiary record
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` of a version earlier than this, but that's not
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` evidence that it didn't exist before.
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` So I'm relying on the testimony of the
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 15 of 39
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`Page 110
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` available for years to anyone who was interested
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` in this matter.
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` And the specific file that I reproduced
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` on 108 was, I assume, the earliest record they
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` could have which has a date of July 26th, 2000.
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` And that doesn't prove or disprove what dates they
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` may have earlier had this file.
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` Q And you -- my question to you, sir, is
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` the simple question: You've seen no evidence of
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` the existence of this file at Audible Magic
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` earlier than July 26th, 2000, correct?
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` A I mean, I'd say no. I have seen evidence
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` that this file was available to anybody who wanted
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` on the Internet in the late '90s. And I've seen
`
` evidence in their testimony that they wanted to go
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` out and get something like that and they got it.
`
` So to me, that's evidence.
`
` Q What evidence have you seen that this
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` file was implemented in any version of the Clango
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` system prior to July 26th, 2000, sir?
`
` A The deposition testimony of the creators
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` of the system.
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 16 of 39
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`Page 111
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` Q And that's all?
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` A That's quite enough.
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` Q Have you seen evidence that that file
`
` that you excerpted on page 108 was incorporated
`
` into a beta release of the Clango system?
`
` A In paragraph 195, I refer to the
`
` testimony of Mr. Wold who discusses the source
`
` code of the Clango August beta application.
`
` Q Is that this file or a different file?
`
` A I'm sorry, could you repeat that
`
` question? I'm not sure I understand what you mean
`
` by "this file."
`
` Q Well, we've been talking about a file
`
` that you've reproduced, or part of one, on
`
` page 108 of your report. And you just mentioned
`
` testimony that you referred to from Mr. Wold and
`
` discussed in paragraph 195 of your report about
`
` the Clango beta release, you say.
`
` Is that testimony about this file that is
`
` on page 108 of your report?
`
` A I believe my testimony in paragraph 189
`
` is that the source code and include file that
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`Page 112
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` we've been discussing on page 108, that Mr. Wold
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` testified that that was in the Clango system in
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` July of 2000.
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` And separately, on page 113, in
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` paragraph 189, I then proceed to discuss software
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` related to the Clango August beta application.
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` Q Which file are you talking about in
`
` connection with the August Clango beta application
`
` that you're discussing on page 113?
`
` A I'm confused by your question, because I
`
` didn't refer to a file in the August beta
`
` application.
`
` Q Okay. So you're not discussing an actual
`
` source code file of the August beta application in
`
` paragraph 113; is that fair? Or on page 113.
`
` A No.
`
` Q Well, what file are you talking about,
`
` then?
`
` A Well, in paragraph 196, I say that I have
`
` examined the source code files reflected in
`
` Exhibit 18 from the Audible Magic deposition. And
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` then I reproduced a graphical folder depiction of
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`Page 113
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` the set of those files that I'm referring to in
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` paragraph 198 -- excuse me, 196.
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` Q Now, the modification date of all the
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` files that you referred to there on page 114, in
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` paragraph 196, those are all -- with the exception
`
` of the first two files, those are all listing
`
` modification dates in 2013, correct?
`
` A Yeah.
`
` Q Do you have any understanding of what
`
` modifications were made to those files prior to
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` that date in 2013?
`
` A Could you repeat the question?
`
` Q Sure. The files that are listed on
`
` page 114 of your report from this directory all
`
` reflect a modification date in 2013. Do you have
`
` any understanding as to what modifications were
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` made to those files at any time between 2000 and
`
` 2013?
`
` A My understanding is there were none
`
` because the testimony of Mr. Wold is that he
`
` represents this was the source code from the
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` period in question, from the beta release.
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`Page 114
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` Q Did you review any source code control
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` system information that confirmed that
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` representation?
`
` A I relied on Mr. Wold for that opinion.
`
` Q Is it common in a source code control
`
` system to have versioning control that will
`
` recreate, for example, a release of a software
`
` product as a snapshot in time?
`
` A Could you repeat the question?
`
` Q Yes. Is it common in a source code
`
` control system to have a versioning control that
`
` would allow you to recreate, for example, a
`
` particular release of a software product at a
`
` snapshot in time?
`
` A That's a typical function.
`
` Q Did you see any snapshot in time code for
`
` the Clango alpha release in the source code
`
` control system that you reviewed?
`
` A I don't recall one way or the other.
`
` Q Did you see any snapshot in time code for
`
` the beta release of the Clango system in the
`
` source code control system that you reviewed?
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`Page 115
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` A My memory is imperfect. I feel like
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` there may have been, but I can't remember where in
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` my report it is.
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` Q Is there some other section of your
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` report we should be looking at for that
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` information?
`
` A I may be confusing myself between the
`
` FreeAmp software and the Clango software. There's
`
` something in my report about version control, but
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` I can't remember where it is, to be honest with
`
` you. So if you want to guide me to something,
`
` I'll be happy to explain it.
`
` Q Was there some versioning number that was
`
` associated with the Clango alpha release, to your
`
` understanding?
`
` A I don't recall. If it's in my report,
`
` it's true, but I -- I don't recall it being in my
`
` report.
`
` Q And is the same true for the beta
`
` release, that you don't recall one way or the
`
` other whether there was any kind of versioning
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` number for that beta release?
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`Page 132
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` paragraph 193 on page 111 of your report.
`
` A Okay.
`
` Q You reference sort of towards the bottom
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` of the text on page 193 a particular file. I
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` won't read the whole path, but the file name
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` itself is MF_api.c. Do you see that?
`
` A Uh-huh. Yes.
`
` Q And then the -- the following page is an
`
` excerpt of what you refer to as the corresponding
`
` SCCS file; is that right?
`
` A There's a sentence that says the
`
` corresponding SCCS file to this version, but I
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` don't reproduce it in my report.
`
` Q Oh, I'm sorry, I was looking at the wrong
`
` flip side of the page. You say that it was
`
` created on or before July 26th, right?
`
` A Yes.
`
` Q And you indicate that's the same day by
`
` which the kd-tree code was created, correct?
`
` A Yes.
`
` Q Okay. Did you have access to an
`
` actual -- any sort of formal compiling or source
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`Page 133
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` code control system versioning that showed
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` precisely which versions of files were compiled
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` into either the alpha or beta Clango releases?
`
` A Not other than I included in my report.
`
` Q And I apologize. I don't think there's
`
` any indication of that in your report. So I'm
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` trying to understand if there's something I'm
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` missing.
`
` A No. Other than the -- I think the
`
` general answer is no, but I do discuss some source
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` code control systems in the report. I rely on the
`
` testimony of the creators for the fact that these
`
` are representative source codes that were
`
` incorporated in the versions that they testified
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` to.
`
` Q Understood.
`
` MR. LEDAHL: Okay. Why don't we take a
`
` break.
`
` THE VIDEOGRAPHER: Off record at 1:41.
`
` (Whereupon, a short recess was taken.)
`
` THE VIDEOGRAPHER: On record, 1:59.
`
` BY MR. LEDAHL:
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`Page 152
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` MR. HARDY: Objection to form.
`
` THE WITNESS: Yeah. Ascertain -- you
`
` mean, if they were interested in knowing about it
`
` or just if they were an end user?
`
` BY MR. LEDAHL:
`
` Q From using the Clango system just as an
`
` end user, did a user have information as to the
`
` search algorithm or the type of search algorithm
`
` that was used in the system?
`
` MR. HARDY: Objection to form.
`
` THE WITNESS: I mean, a user wouldn't
`
` know whether it's a bank of human beings doing it,
`
` to be honest. So, no.
`
` BY MR. LEDAHL:
`
` Q And the users of the Clango system did
`
` not have access to the code that implemented the
`
` search functionality in Clango; is that correct?
`
` A I believe some of them could have because
`
` it was available and had been distributed, but
`
` they didn't have to.
`
` Q When you say because it had been
`
` distributed and was available, what are you
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`Page 153
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` referring to?
`
` A The release that was referred to -- the
`
` beta release, for example, that had been
`
` distributed.
`
` Q Okay. So are you referring to the object
`
` code that was distributed to potential users or
`
` something else?
`
` A Right. No. Maybe I'll strike that. I
`
` was confusing FreeAmp and Clango. So the Clango
`
` beta release was not a source code release, so
`
` they wouldn't necessarily have access to
`
` understanding the format of the API or anything
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` like that.
`
` Q Where did Audible Magic or anyone
`
` associated with Audible Magic first publicly
`
` disclose the kind of search algorithm technology
`
` they were using?
`
` MR. HARDY: Objection to form.
`
` THE WITNESS: I believe they distributed
`
` it in the monthly newsletter and other marketing
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` materials that I reference in my report, but I
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` don't know what page that's on.
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`Page 154
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` BY MR. LEDAHL:
`
` Q What monthly newsletter are you talking
`
` about?
`
` A Well, it's in paragraph -- I refer to it
`
` in paragraph 134.
`
` Q Now, is this a newsletter to the public
`
` or to investors in Audible Magic?
`
` A It's for its investors.
`
` Q When was -- when did Audible Magic first
`
` disclose to the public the type of search
`
` technology that was used in the Clango system?
`
` MR. HARDY: Objection to form.
`
` THE WITNESS: I'm not sure I understand
`
` the legal standard of "disclose" here. Do you
`
` mean -- with the system, do you mean when they
`
` would use the system that had that or that a user
`
` would have to understand how signal crossing and
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` databases and networking worked? I'm not quite
`
` sure I understand the legal standard involved
`
` here.
`
` BY MR. LEDAHL:
`
` Q Well, my question, sir, is not one that
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`Page 155
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` requires you to understand the legal standard. My
`
` question is, when did Audible Magic tell the
`
` public about the kind of search technology that
`
` was used in the Clango system?
`
` MR. HARDY: Objection.
`
` THE WITNESS: I don't think I've offered
`
` an opinion on that.
`
` BY MR. LEDAHL:
`
` Q Did you offer an opinion that Audible
`
` Magic filed any patent applications that reflected
`
` the techniques used in either the Clango alpha or
`
` beta system?
`
` A I don't recall.
`
` Q And did you offer an opinion that Audible
`
` Magic published any papers, such as academic
`
` papers, on the functioning of the Clango system at
`
` any time?
`
` A Well, when we -- no, that was -- sorry.
`
` I'm getting myself confused between the different
`
` systems. I don't think so.
`
` Q Am I correct that the entirety of your
`
` opinion about the disclosure of the functioning of
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`Case 1:14-cv-02396-PGG-SN Document 234-6 Filed 11/11/20 Page 27 of 39
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` Patrick Breslin and Sean Ward, and so most of the
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` engineering that we're discussing here was created
`
`Page 182
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` by them.
`
` BY MR. LEDAHL:
`
` Q And when was the FreeAmp system that you
`
` rely on first in existence, to your understanding?
`
` A Well, the Free -- the FreeAmp music
`
` player existed for quite some time. But the
`
` FreeAmp system would reasonably be -- in my
`
` report, when I say FreeAmp or the FreeAmp system,
`
` I refer to the FreeAmp client application in
`
` combination with the TRM server and the
`
` MusicBrainz server. And that -- as I outline in
`
` paragraph 145, the first version of that was the
`
` beta 6 version of release 2.1 which was first
`
` released to public on August 18th.
`
` Q August 18th of 2000; is that right?
`
` A Yes.
`
` Q So the earliest date you're relying on
`
` with respect to that MusicBrainz and FreeAmp
`
` system is August 18th of 2000; is that correct?
`
` A Yeah. For the beta 6 version of
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`Page 183
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` release 2.1.
`
` Q Okay. And did that version have a
`
` particular number beyond release 2.1? Was it
`
` 2.1-point-something, to your knowledge?
`
` A I don't recall.
`
` Q Now, have you ever seen any working
`
` version in its entirety of the beta 6 version that
`
` you just referred to of the FreeAmp system?
`
` A I'm not sure. Not that I recall in
`
` conjunction with this litigation, but I certainly
`
` was a user of FreeAmp back in the day and may or
`
` may not have used a version that had this. I
`
` mean, I do remember versions that would
`
` automatically identify songs, but I don't remember
`
` what year I would have used it.
`
` Q Did you review source code that was
`
` specific to the beta 6 version of the FreeAmp
`
` system?
`
` A Yeah, I believe so.
`
` Q And where do you describe that in your
`
` report? Which software are you going to be
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` referring to?
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` TRM_000212; is that correct?
`
` A That's correct.
`
` Q And I think you indicate this in your
`
` report here in paragraph 249, that folder or that
`
` part of the production includes source code as of
`
` March of 2001, and you cite some deposition
`
` testimony; is that correct?
`
` A That's correct.
`
` Q And March of 2001 is not the timing you
`
` were asserting was that of the beta 6 release of
`
` the FreeAmp system; is that correct?
`
` A That's correct. But as I continue to
`
` testify, I also understand, however, that much of
`
` the code was in place before September 14th, 2000
`
` during the initial releases of FreeAmp with the
`
` TRM technology, and for that I rely on the Sean
`
` Ward deposition.
`
` Q And the -- did Mr. Ward -- well, strike
`
` that.
`
` Did you review any source code repository
`
` of TRM software that was dated earlier than March
`
` of 2001?
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`Page 187
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` A I don't recall.
`
` Q You're unaware of any such earlier
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` software from TRM?
`
` A I don't recall.
`
` Q Do you recall what the changes were
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