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`Case 1:14-cv-02396-PGG-SN Document 269-2 Filed 09/07/22 Page 1 of 17
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`EXHIBIT B
`EXHIBIT B
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`Case 1:14-cv-02396-PGG-SN Document 269-2 Filed 09/07/22 Page 1 of 17
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`EXHIBIT B
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`Case 1:14-cv-02396-PGG-SN Document 269-2 Filed 09/07/22 Page 2 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`14 Civ. 2396 (PGG-SN)
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`14 Civ. 9558 (PGG-SN)
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`NETWORK-1 TECHNOLOGIES, INC.
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`Plaintiff,
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`- against -
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`GOOGLE LLC and YOUTUBE, LLC
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`Defendants.
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`EXPERT REPORT OF DR. SAMRAT BHATTACHARJEE
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`identification.”422 In my opinion, the technology described in the Iceberg Patents is comparable
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`to that described in the Asserted Patents.
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`XVI. THERE ARE NO TECHNICAL IMPEDIMENTS TO THE NON-INFRINGING
`ALTERNATIVE OF GEOGRAPHICALLY LOCATING A PORTION OF
`DEFENDANTS’ CONTENT ID SYSTEM OUTSIDE OF THE UNITED STATES
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`453.
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`I understand that Defendants contend that an “available non-infringing alternative
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`is geographically locating the servers running the Accused Instrumentalities, or a portion of the
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`Accused Instrumentalities, outside of the United States.”423
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`454. On February 10, 2020, I spoke with Matthias Konrad, the lead engineer for Content
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`ID, and Oleg Ryjkov, a member of Mr. Konrad’s team, to gain a further understanding of the
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`geographical location of the servers running Defendants’ Content ID system. Based on that
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`conversation and my review of the other evidence, I understand that
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` typically is performed in the same data center where
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`YouTube generates transcodes of user-uploaded videos.424 These data centers currently are located
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`in at least Asia, Europe, South America, and the United States.425
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`455.
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`I understand that the Match System component of the Content ID system currently
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`operates on machines located in the United States and Europe.426 With respect to
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` there are currently
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`422 Mitzenmacher Rep. ¶ 294.
`423 Defendants’ Third Supplemental Response to Plaintiff’s Interrogatory No. 13; see
`Mitzenmacher Rep. ¶ 505.
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`424 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020; Konrad Depo. Tr.
`52:14–53:7.
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`425 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`426 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`212
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` on machines located in the United States and
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` on
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`machines located in Europe.427
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`456.
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`I understand that
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` runs on different servers than
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`.428 The servers running
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` may be located in different data centers than
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`those running
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`.429 The servers that serve videos and advertisements to YouTube
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`viewers likewise may be in altogether different data centers than the servers that run the
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`430
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`457.
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`In my opinion, there are no technical barriers to relocating the instances of the
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`Match System that are currently located in the United States to another country. I have reviewed
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`Dr. Mitzenmacher’s analysis of this non-infringing alternative, which includes his assertion that
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`“there are significant outstanding questions (both technical and cost-related) concerning whether
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`or not locating the servers (or a portion of the servers) running the Content ID Accused
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`Instrumentalities outside the United States is a viable alternative.”431 I disagree with Dr.
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`Mitzenmacher.
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`458. The geographical location of servers affects latency. All else equal, the time it takes
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`to transmit data from one server to another increases as the distance between them increases.
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`Typically data transmitted on a fiber-optic network will travel at around two-thirds the speed of
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`light, or about 5 microseconds (0.000005 seconds) per kilometer. The chart below illustrates
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`427 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`428 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`429 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`430 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`431 Mitzenmacher Rep. ¶ 505.
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`213
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`approximate round-trip transmission times in milliseconds (0.0001 seconds) for data traversing a
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`fiber-optic cable:432
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`459. As the chart above indicates, a round-trip data transmission from New York City
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`to San Francisco using a fiber-optic cable would take approximately 0.042 seconds, while a
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`transmission from New York City to London would take approximately 0.056 seconds.433 The
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`chart below illustrates the round-trip transmission time in milliseconds for certain trans-Atlantic
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`submarine fiber-optic cables in use in 2015:434
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`432 Ilya Grigorik, High Performance Browser Networking, available online at
`https://hpbn.co/primer-on-latency-and-bandwidth/.
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`433 As discussed below, the transmitting data
`requires a modest amount of bandwidth, such that there would be little or no additional latency
`due to queuing of the data. See ¶¶ 469–72 supra.
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`434 TeleGeography and Hibernia Networks, Trans-Atlantic Network Latency Reduced (Oct. 9,
`2015), available online at https://www.thebroadcastbridge.com/content/entry/3988/trans-atlantic-
`network-latency-reduced.
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`214
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`460.
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` Distance-based latency can be an important consideration for some products and
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`services. For example, a delay of a few milliseconds might make a difference to investment firms
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`that run automated high-frequency trading platforms that are designed to buy and sell stocks a
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`fraction of a second before the rest of the market moves. Relatively small amounts of latency can
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`also affect the user’s experience with certain web services, such as live multiplayer online gaming.
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`461. For Defendants’ Content ID system, however, distance-based latency is nearly
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`irrelevant. According to Mr. Konrad, Defendants’ Content ID system is designed to complete the
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`matching and claiming processes
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` Mr.
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`Konrad provided the following answers to questions from Network-1’s counsel:435
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`435 Konrad Depo. Tr. 138:23–1451:15.
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`215
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`the amount of time to process an incoming
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`user-generated video? Not so muchlive streams,
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`but normal uploads?
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`Q. And what does that translate to in
`terms of the latency requirement?
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`Correct?
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`MR. HARDY: Objection to form.
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`216
`216
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`462. Relocating the US-based Match System component of the Content ID system to a
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`country other than the United States would have no meaningful effect on Defendants’ ability to
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`meet their stated goals with respect to latency. For example: Assume that Defendants relocated
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`the portion of the Match System that currently operates in the United States to Europe, where the
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`other servers currently running the Match System are located.436 The relocation could contribute
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`436 There may be practical reasons why Defendants would not want to have all instances of a
`system operating in the same data center, such as the risk that the lone data center would go offline
`due to a natural disaster, power outage, or other event. For purposes of this example, one could
`assume that Defendants would
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` As discussed
`further below, the analysis does not change meaningfully if it is assumed that the U.S.-based Match
`217
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`additional distance-based latency because the data
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` that are generated in the United States would need to be transmitted to Europe after
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`they are generated, rather than being sent to nearby servers operating the Match System in the
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`United States.
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`463. As discussed, however, the latency attributable to the added distance between
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`certain servers following a relocation would be measured in milliseconds, as there are numerous
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`fiber-optic undersea cables capable of transmitting data between the United States and Europe with
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`latency less than 100 milliseconds (i.e., 0.1 seconds).437 That is a small fraction of the overall time
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`available for the Content ID system to determine whether a newly uploaded video should be
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`subject to one or more claims. As noted, Mr. Konrad testified that
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`.438
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`464. The additional latency attributable to the relocation of the US-based instances of
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`the Match System from the United States to Europe would have, at most, an extremely modest
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`effect on the ability of the Content ID system to satisfy its stated goals with respect to latency. If
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`the increased distance added 100 milliseconds (i.e., 0.1 seconds) of latency, that would constitute
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`System is relocated to Asia, South America, elsewhere in North America, or any other place with
`an adequate data center.
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`437 See, e.g., TeleGeography and Hibernia Networks, Trans-Atlantic Network Latency Reduced
`(Oct. 9, 2015), available online at
`https://www.thebroadcastbridge.com/content/entry/3988/trans-atlantic-network-latency-reduced.
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`438 See Konrad Depo. Tr. 138:23–1451:15.
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`218
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`only
` in which the Content ID system endeavors to determine
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`whether a claim should be made.
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`465. My opinion would not change if the instances of the Match System operating in the
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`United States were relocated to Asia, Australia, South America, or anywhere else in the world.
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`Even the distance-based latency between, say, the United States and Australia would be trivial
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`compared to the time frames on which the Content ID system operates.439
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`466. My opinion also would not change if Defendants needed to meet a more aggressive
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`target for determining whether a recently uploaded video should be subject to one or more claims.
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`For example, Mr. Konrad noted that
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`”440 Even assuming that the objective was to
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` an additional 100 milliseconds (i.e., 0.1 seconds) of distance-
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`
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`based latency would still constitute less than
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` of the available time.
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`467. Furthermore, relocating the Match System instances currently operating in the
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`United States would decrease the latency of at least some operations performed by the Content ID
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`system, even as it increased the latency of others. As noted, Defendants operate servers that
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` not only in the United States and Europe, but
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`also in Asia and South America.441 At present the data
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`that are generated in Asia or South America are transmitted to the Match System
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`439 See, e.g., Ilya Grigorik, High Performance Browser Networking, available online at
`https://hpbn.co/primer-on-latency-and-bandwidth/.
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`440 Konrad Depo. Tr. 141:4–15.
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`441 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`219
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`servers in either the United States or Europe, which creates distance-based latency.442 If the
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`relevant instances of the Match System were relocated from the United States to Asia, for example,
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`then there would be less distance-based latency associated with
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` in Asia, even though there would be more distance-based
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`latency associated with
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` in the United States.
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`In other words, the distance-based latency experienced by the Content ID system would increase
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`by a trivial amount for some videos (such as those ingested and transcoded in the United States)
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`and decrease by a trivial amount for others (such as those ingested and transcoded in Asia).
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`468.
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` Dr. Mitzenmacher further asserts that “transmitting data, particularly such large
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`amounts of data, is not without cost,” and that “moving large amounts of video data from one place
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`to another would greatly affect peak load.”443 I disagree with Dr. Mitzenmacher’s implication that
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`access to bandwidth would inhibit Defendants from relocating the Match System instances
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`currently operating in the United States to some other country. The increased bandwidth necessary
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`would be trivial in light of the capacity that it available today and was available in and around
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`2011.
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`469.
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`I understand from speaking with Mr. Konrad and Mr. Ryjkov that even if all
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`would require approximately
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` of bandwidth to
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`, Defendants
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`.444 That is a modest amount by the standard of networks as they exist today and
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`442 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`443 Mitzenmacher Rep. ¶ 505.
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`444 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`220
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`as they existed in and around 2011. For example, Dr. Mitzenmacher cites an article from 2015
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`describing a Google-backed 9,000 km submarine fiber-optic cable connecting the United States
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`and Japan with “a peak capacity of 60 Tbps (terabits per second),” which converts to 60,000
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`Gbps.445 The
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` to instances of the Match System located in a different country
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`would equal approximately
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` of the peak capacity of the single undersea cable discussed
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`in the article cited by Dr. Mitzenmacher. There are several hundred submarine fiber-optic cables
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`currently in operation, some of which have a capacity in excess of the 60 Tbps available in the
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`Google-backed cable cited by Dr. Mitzenmacher.446
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`470.
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`I understand from speaking with Mr. Konrad and Mr. Ryjkov that
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` is an
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`immaterial amount of bandwidth in light of the amounts available to and used by Google.447 For
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`example, in 2010 Google and other members of a consortium completed installation of a trans-
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`Pacific fiber-optic cable delivering up to 4.8 Tbps of bandwidth.448 As of 2018, Google reportedly
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`was the sole owner of 1.4% of submarine cables worldwide and held partial ownership of 8.5% of
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`445 Mitzenmacher Rep. ¶ 505, citing Tim Hornyak, Here’s What It Takes To Lay Google’s
`9,000km Undersea Cable (July 13, 2015), available online at
`https://www.itworld.com/article/2947934/heres-what-to-takes-to-lay-googles-9000km-undersea-
`cable.html.
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`446 TeleGeography, Submarine Cable Frequently Asked Questions, available online at
`https://www2.telegeography.com/submarine-cable-faqs-frequently-asked-questions.
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`447 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`448 KDDI Corp., Unity Cable System Completed, Boosts Trans-Pacific Connectivity (Apr. 1,
`2010), available online at https://www.kddi.com/english/corporate/news_release/2010/0401/.
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`221
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`submarine cables worldwide.449 In late 2019, Google reported that it had completed installation
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`and testing of a submarine fiber-optic cable with a bandwidth of up to 72 Tbps that connects the
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`United States and South America.450 A trans-Atlantic cable currently being installed by Google
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`reportedly is expected to “transmit around 250 terabits per second” when it goes online in late
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`2020.451
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`471.
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` Furthermore, the current geographical placement of the servers running the Match
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`System already requires sufficient bandwidth to transmit the data
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` generated in Asia, South America, and elsewhere to Match System
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`servers in either the United States or Europe.452 If the instances of the Match System currently
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`operating in the United States were relocated to Asia, the transcontinental bandwidth necessary to
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` from the United States to
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`Asia or Europe would increase. At the same time, however, the bandwidth necessary to
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` from Asia to the United States or
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`Europe would decrease because the Match System instances would be located in Asia.
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`449 Jameson Zimmer, Google Owns 63,605 Miles and 8.5% of Submarine Cables Worldwide
`(Sept. 12, 2018), available online at https://broadbandnow.com/report/google-content-providers-
`submarine-cable-ownership/.
`
`450 Jayne Stowell and Cristian Ramos, Curie Subsea Cable Set to Transmit to Chile, with a Pit
`Stop to Panama (Nov. 14, 2019), available online at
`https://cloud.google.com/blog/products/infrastructure/curie-subsea-cable-set-to-transmit-to-chile-
`with-a-pit-stop-to-panama.
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`451 Klint Finley, How Google Is Cramming More Data Into Its New Atlantic Cable (Apr. 5,
`2019), available online at https://www.wired.com/story/google-cramming-more-data-new-
`atlantic-cable/.
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`452 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020
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`222
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`472. Any increase in bandwidth caused by relocating instances of the Match System
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`outside of the United States would be trivial in relation to the total bandwidth readily available to
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`Google. My opinion with respect to this issue would not change even if Defendants required more
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`than
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` of additional bandwidth to operate the Content ID System with all instances of the
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`Match System located outside the United States.
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`473. The Mitzenmacher Report also notes that matches generated by the Match System
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`and
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` are used for purposes other than applying copyright
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`owners’ policies to user-uploaded videos. Dr. Mitzenmacher asserts:453
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`474. Relocating the Match System to servers located outside the United States would
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`not affect any of these other use cases. I understand from speaking with Mr. Konrad and Mr.
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`Ryjkov that these other use cases currently have latencies
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`454 For example, although Defendants use matches
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`determined by the Match System
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` that process does not need to happen before the matches
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` Thus, increasing
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`453 Mitzenmacher Rep. ¶ 505.
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`454 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`223
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`distance-based latency of the Content ID system by relocating the US-based instances of the Match
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`System would have no perceptible effect on these other use cases, just as it would have no
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`perceptible effect on the partner-copyright use case that is the focus of Dr. Mitzenmacher’s
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`analysis.
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`475. Finally, for the reasons already discussed, any additional latency or bandwidth
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`requirements arising from relocating the Match System would not affect the application of Content
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`ID
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` As Dr. Mitzenmacher notes elsewhere in his report, the Match
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`System component of the Content ID system
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`456
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`476.
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`Increasing the distance between the server where
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`where the Match System is located could increase the distance-based latency associated
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`with this process, but again the distance-based latency would be immaterial compared to the
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`latency that is already built into the Match System and the objectives articulated by Defendants.
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`Ms. Pasula explained in response to questions from Network-1’s counsel that
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`455 See, e.g., Mitzenmacher Rep. ¶ 68.
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`456 Pasula Depo. Tr. 172:12–174:7.
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`224
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`
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`457
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`…
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`477. As discussed above, the increased latency attributable to transmitting data,
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` from one continent to another is on the order of milliseconds (i.e.,
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`thousandths of a second).458 Furthermore, I understand that Defendants’
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`
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`457 Pasula Depo. Tr. 86:2–87:16.
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`458 See, e.g., Ilya Grigorik, High Performance Browser Networking, available online at
`https://hpbn.co/primer-on-latency-and-bandwidth/.
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`459 Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`225
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`478.
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`Finally, distance-based latency is already built into
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`regardless where the uploader and viewer are located. For the reasons already discussed, the data
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`^^' The distance-based latency of some or all of those match operations would decrease
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`slightly (i.e., on the order of milliseconds) if the instances of the Match System currently located
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`in the United States were relocated
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` The fact that
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`Defendants currently run the Match System from only two geographical locations even though
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`YouTube uploaders and viewers are located throughout the world demonstrates that the effects of
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`distance are not an impediment to achieving the system’s objectives.
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`479.
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`In sum, there are no technical barriers to relocating the US-based instances of the
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`Match System component of the Content ID system to a cormtry other than the United States.
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`Dated: February n _, 2020
`ii
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`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020; Pasula Depo. Tr.
`172:12-174:7.
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`Interview with Matthias Konrad & Oleg Ryjkov, February 10, 2020.
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`226
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`
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