The Kadrey plaintiffs filed the unredacted version of their reply brief in support of their motion to file a Third Amended Consolidated Complaint, which Judge Chhabria granted.
In their Reply, plaintiffs assert: “And just yesterday, when asked about the type of piracy described in the TACC, Mr. Zuckerberg testified that such activity would raise “lots of red flags” and “seems like a bad thing.” Reply Ex. E (Zuckerberg Dep. Tr.) at 102:10–14; 98:24–99:2.
OK, now, we have a little bit more context. Judge Chhabria himself cautioned about the need for having context in speaking at the hearing a week ago. Well, the context casts Mark Zuckerberg’s comments about “lots of red flags” and “seems like a bad thing” probably in a far better light.
Zuckerberg said he didn’t know the LibGen dataset. Given his lack of knowledge, his answers to the questions David Boies posed sound far more equivocal than how the plaintiffs portrayed it in their brief. (Meta’s attorney raised several objections, which will be ruled on later if the testimony is offered at trial.)
1. “Seems like a bad thing”
First, let’s look at Mark Zuckerberg’s comment “seems like a bad thing” in context:
BY ATTORNEY BOIES [FOR PLAINTIFFS]:
Q. Yeah. The question I’m asking really is if you have a website or source that contains copyrighted materials that they do not have a license for and they intentionally are making unlicensed copyrighted materials available to the public, would you agree, as the CEO of Meta, that Meta should not be downloading materials from websites like that?
ATTORNEY GHAJAR [FOR META]: Objection. Vague. Also an incomplete hypothetical. Assumes facts.
THE WITNESS [ZUCKERBERG]: Yeah, I mean, it’s — I think its — it’s —
You know, I mean the way that you frame it, it seems like that’s something that we should be pretty careful about, but I think when you get into the nuances, it’s hard to assess what people’s intent is.
You know, I mean going back to the YouTube example before, where I think that there’s some percent of the content is probably stuff that they don’t have copyright or don’t have the license to distribute. Early on, I think that people did make some assertions about YouTube’s intent on this, and they were less mature about developing their IP rights management.
But even then, I don’t think that I would’ve said that I wouldn’t want people at Meta not to use YouTube, at that point. So — so I don’t know.
I just think that it’s — I think what you’re saying — the way you’re characterizing it, it sort of broadly seems like, yes, that seems like a bad thing. But I just am — I want to caution about making a blanket statement about policies, and this is why we have teams who think through this carefully because there are often more nuances than is kind of apparent the first — in, like, when you just think about it, at first blush.
In context, Zuckerberg’s point seems to be the opposite of how it is portrayed in the plaintiffs’ brief. Zuckerberg qualified his response “the way you’re characterizing it, it sort of broadly seems like, yes, that seems like a bad thing.” But Zuckerberg’s prior discussion in his answer and analogy to YouTube having some infringing videos argues for avoiding “making a blanket statement about policies,” but instead, have “teams who think through this carefully because there are often more nuances than is kind of apparent the first — in, like, when you just think about it, at first blush.“
You can disagree with Zuckerberg. But his comment “seems like a bad thing” does not sound nearly as damaging as the plaintiffs’ brief makes it out to be.
Boies even asked a follow-up question: “When you say ‘that seems like a bad thing,’ what are you referring to?”
Zuckerberg gave basically the same answer as the need for “a little bit further analysis before I can issue sort of like a blanket assessment of what our policy should be.”
Boies tried another question along the same line, but disinguishing YouTube and focusing on “websites like LibGen.
Here’s Zuckerberg’s response:
THE WITNESS [ZUCKERBERG]: Yeah, I mean, I get that you’re trying to get me to give an opinion on LibGen, which I haven’t really heard of.
BY ATTORNEY BOIES:
Q: No I’m saying you haven’t heard of LibGen–
A: No, things like it. Things like it. I understand what you’re saying. It’s just a little hard for me to weigh in on that without looking at the nuances of the case…. [More discussion of YouTube example omitted. Ed.]
2. “That would be a pretty big red flag”
Boies continues to try to distinguish YouTube. That’s when Zuckerberg give the “red flag” comment.
Q: I am asking a different question, and you know perfectly well that YouTube does not purport to be in the business of distributing copyrighted materials for which it has no license, correct, sir?
A: Yes. So you’re saying another website goes out of its way to communicate that it’s distributing illegal materials?
Q: Yes, sir. And you certainly agree you don’t want to do business with somebody like that, right?
ATTORNEY GHAJAR [FOR META]: Objection. Assumes facts and incomplete hypothetical.
THE WITNESS [ZUCKERBERG]: I mean, in general if someone is broadcasting loudly that they’re doing something that is illegal, that would be a pretty big red flag that I’d want us to look at carefully before engaging with them in any way.
Zuckerberg’s comment about raising a “red flag” also seems less damaging in context. (As you may have noticed, the comment “a pretty big red flag” is different from the brief’s quotation of “lots of red flags.” That is likely due to the deposition taking place a day before the brief was filed; at that time, there probably wasn’t an official transcript (and even the Exhibit quotes from an unofficial one).
But you can be the judge or jury.