Oracle Corporation et al v. SAP AG et al

Filing 834

Declaration of Joshua L. Fuchs in Support of 833 Memorandum in Opposition, filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Related document(s) 833 ) (Froyd, Jane) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 834 Att. 1

EXHIBIT A

Dockets.Justia.com

STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ORACLE CORPORATION, a Delaware Corporation; ORACLE, USA, INC., a Colorado Corporation, and ORACLE INTERNATIONAL CORPORATION, a California Corporation, vs. Plaintiffs, No. 07-CV-01658-PJH (EDL)

SAP AG, a German Corporation, SAP AMERICA, INC., a Delaware Corporation, TOMORROWNOW, INC., a Texas Corporation, and DOES 1-50, Inclusive, Defendants. ______________________________/

*** HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY *** DEPOSITION OF STEPHEN GRAY VOLUME I (Page 1 - 315) June 8, 2010

Reported by: Natalie Y. Botelho CSR No. 9897

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Do you have any detailed understanding of what "protected expression" means in terms of the copyright act? A. I have served as a copyright -- an

expert -- a technical expert in a copyright matter in the past, and the term "protected expression" arose in that matter. Q. A. Q. Okay. So I'm not asking --

So I have some understanding, I think. As you sit here today, do you have a

detailed understanding of what "protected expression" means? MR. FUCHS: THE WITNESS: Objection; form. Well, again, you're asking

me the general -- that's what I heard before in the first question that I wasn't sure about. There's a

general question there, and so in the matter -matters in which I've served as a technical expert where copyright was part of the -- or was an issue, was the issue, I have developed some expertise understanding the technical aspects of copyright, and it -- the term "protected expression" arose certainly in both of those -- as a matter of fact,

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I'm sure -- matters.

And so to that extent, I have

some experience and expertise in that area.

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Q.

Would you hold yourself out as an expert

in determining whether COBOL contains protected expression under the Copyright Act? A. I would -- I would -- I think I would hold

myself out as someone who could perform analysis of a body of COBOL code and could serve as a technical expert in a matter like this to make a determination, I suppose, of whether or not there was protected expression in a body of code. Again,

it would -- I'm not saying that that is -- includes a definition that I arrive at independent of some legal guidance by the attorneys involved, but I would be -- I think I would be capable or qualified to serve as a technical expert witness in a matter where the questions at hand had to do with providing expertise in COBOL, or identifying protected expression in a body of COBOL source code.

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Q.

I'm asking -- you said, "I think

authorship is an issue with respect to -- can be an issue with respect to protected expression." asking, when? A. I'm

What is the basis for that statement?

I think it comes down to whether or not --

my understanding -- again, this is as a layperson. I'm not -- not as a layperson. As a person who has

a technical background and has served as a technical expert in copyright matters in the past, I'm just giving you my understanding, not as an attorney. I

don't want to -- I don't want to step over the line and try to sound like I'm trying to be an attorney. Having said that, I think that authorship issues do arise in copyright matters. we're talking about? Is that what

I may have lost the question.

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MR. POLITO:

Q.

You referred earlier to

two matters in which you had performed analysis for copyright cases. list? A. Q. A. Q. No. One of them is. Are those two matters on this

Which one? MathWorks v. COMSOL. That is a 2008 case, according to your

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Appendix 2? A. Q. That's correct. Okay. And what was the subject matter of

your expert report in MathWorks versus COMSOL, generally speaking? A. The -- there were two matters in the

MathWorks v. COMSOL, so let me -- I think so -- and I wrote two expert reports. Oh, but, you know, one I'm with

of the expert reports was not -- okay. you. I was just sorting it out.

I think the

copyright case in that matter, my expert report was an analysis of COMSOL's software and MathWorks' software and a comparison between them to identify the use of MathWorks' software in the -- in COMSOL's software. Q. party? A. Q. languages? A. It was a programming language which was The -- it was called M. I was retained by MathWorks. What was the programming language or By whom were you retained? By which

proprietary to MathWorks. It's just -- it's -Q. A.

M like the letter? Uh-huh. It's a proprietary language to

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MathWorks.

Some C programming language.

And when I

say "C," I mean variants of C.

Could have been C++. And Java.

Some of the modules might have been C++. Q.

Was it -- do you recall whether the C

involved object-oriented code or not? A. My recollection is that some of the --

certainly some of the modules that I analyzed were object-oriented. I don't recollect whether or not

the modules at issue were object-oriented or not. Q. matter? A. Oh, yeah. The two -- the parties' Did you analyze M and C and Java in that

software was written in a variety of languages, M, C, and Java. Q. And you analyzed code in all three of

those languages? A. Yes.

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Q.

And how did you go about determining

whether there was protected expression that was copied between the MathWorks and the COMSOL products in that matter? A. Generally by abstracting -- creating

various abstractions of the soft -- of both bodies of the software, then comparing -- then, you know, removing not -- unprotected expression from those

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bodies that -- and then comparing the residue and making a determination as to whether or not the copying had occurred. Q. Did you use software that was purchased

from a third party to do that filtration? A. Q. A. I did not. Did you write it yourself? I analyzed it myself.

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Q.

Other than the -- are you familiar with

the term "abstraction filtration comparison"?

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A. Q.

I am familiar with the term. Is that an accurate description of what

we've just been discussing regarding your work in MathWorks versus COMSOL? A. Yes. MR. FUCHS: THE WITNESS: MR. POLITO: Objection; form. Sorry. Q. I'll read it again. Is

abstraction filtration comparison an accurate description of what we've just been discussing regarding your work in MathWorks against COMSOL? A. Yes, it is. MR. FUCHS: MR. POLITO: Objection; form. Q. And what does

"abstraction filtration comparison" mean to you, Mr. Gray? A. A process by which a technical expert like

myself can use to identify the common elements of bodies of software, filtering out those things for which comparison is not required.

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Q.

And so in that -- in the list of cases

that you've participated in where copyright was the central issue, is it correct that there are two cases in your history as an expert, one being the MathWorks case, and one being the second case? A. That's -- I think that's -- yeah, I think

that's correct.

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Q.

What's the other case?

And you said it's

not in Appendix 2. A. I think -MR. FUCHS:

Is it in your CV in Appendix 1?

Objection; compound. I think -- I think that the

THE WITNESS:

other case is in my CV, on Page 10. MR. POLITO: A. Q. A. Q. I'm getting there.

Page 10 of my CV. And what's the matter? In 1984, O'Melveny & Myers, IBM v. NCR,

NCR Comten. Q. And which -- for which party did you

perform analysis in that matter? A. Q. report? matter? A. So I think -- the answer to your question, IBM. And what was the nature of your expert Did you submit an expert report in that

I think, is no, I did not submit an expert report, which is why it's not on the prior testimony and depositions, because I didn't -- and I don't recollect that I was deposed in that case. fuzzy. 1984 was a while back. That's

But I did submit a

report, but I don't recollect that it in that matter at that time rose to the level of an expert report

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that -- right, so I submitted a report.

I may have

just been a consulting as opposed to a testifying expert in that matter. fuzzy. Q. Sure. What was the nature of your I'm just -- it's a little

engagement in that matter, as far as what was the subject matter of your engagement? A. The subject matter was whether or not NCR

Comten had used IBM software in a product. Q. involved? A. In both instances it was an assembler What was the set of programming languages

language which was peculiar to the device that each of the companies had manufactured. I think the It was an

assembler language, it wasn't -- sorry.

assembler language that was peculiar -- that had been written for the hardware under which these were both operating. Q. A. Q. A. Do you remember the name of the device? Sure. What was it? Well, there -- the IBM device was a -- the That was

number, model number, whatever, was 3705. the hardware platform.

And the software was a NCP stands for Network

software program called NCP.

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Control Program.

The NCR Comten device was, I

think, the Comten -- I think it was the Comten 10. You'd think with a marketing department, they could come up with something cleverer than that, but it was the Comten 10. And the language was -- I forget SSP maybe.

what the software was actually named.

Software Support Program, I think, was what it was called for the Comten device. I'm 50/50 confident about that. I had -- that's -But it was written

in an assembler language which was written specifically for that Comten device. Q. A. Q. Sure. Or that Comten hardware family. Were you directed to look for protected

expression in copied material in that matter? A. Well, those were -- it was a little

different environment then, so the assignment that I was given was to compare at a side-by-side level the software which had been written for the IBM 3705 NCP program and the Comten SSP program. I'm just going

to use SSP, knowing that it might not be exactly the right language, but I think it was something like that. So comparing the IBM NCP program to the

Comten SSP program on a side-by-side basis. I guess probably before that was to do a

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function-to-function comparison, then do a code comparison, and then to produce -- that was the comparison that I did on the code. It wasn't

necessarily -- it wasn't necessarily to identify protected expression so much as to identify areas where there were similarities.

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Q.

But you did not perform abstraction

filtration comparison in that matter? MR. FUCHS: THE WITNESS: question. Objection; form. That's an interesting So I

It's -- I never thought about that.

don't recollect it having been called abstraction filtration comparison. I think it might even have

been before the time that abstraction filtration comparison case that we referred to. But the

reality is it probably was kind of an abstraction filtration comparison process, really is what happened. So, you know, it wasn't a formal one. It

wasn't identified as such, but in a sense, it may have been kind of an abstraction filtration comparison process. MR. POLITO: Q. Sure. And how did you

know, then, what to exclude if we sort of analogize it to what we would now call abstraction filtration comparison? A. So just -- I think that the attorneys

working with IBM informed me that there were certain

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aspects of the Comten software that I didn't need to pay attention to or didn't need to worry about, except in a very narrow sense I needed to worry about it, but at some level not have to worry about it too much. I know that's not a very clear answer.

But there were some aspects of it not to worry about, except in a narrow sense and then other aspects to pay more attention to.

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Q.

Other than the two matters that we've just

discussed, have you ever in your capacity as an expert performed analysis regarding copyright infringement?

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A. it's -Q. A.

Let me just quickly go through.

I mean,

Sure. It will take a couple minutes. (Pause.) THE WITNESS: So I think what you've asked

me to do is identify -- well, so, yeah, let me ask, did you ask me to identify matters in which I was asked to do some copyright infringement even if it was not necessarily the central theme? you're asking me? MR. POLITO: Q. To clarify, I'm not Is that what

asking whether you were instructed to infringe someone else's copyright. I'm asking whether you

were instructed to determine whether there was copyright infringement or performance of the functionality in that matter. A. Well, let me give you an example and see

if this is responsive to what it is you're asking. In the matter on the top of Page 6, the first matter is -- the attorneys are Cooley Godward, and the question is Leader v. Facebook. Q. A. I see it, yes. Now, without disclosing too much about

that case, because it's an active case, the --

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Leader has obviously accused Facebook of some patent infringement, and an issue has arisen with respect to copyright as well. And so I have been asked -- I

was asked to look at -- I was asked to deal with some copyright issues with respect to a copyright issue that has arisen not necessarily as the central theme, but as the -- as another theme that has arisen, I guess is the best way to say it. So is

that what you're asking me; are there any other matters like that? Q. A. Yes. Okay.

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A.

So the Cooley Godward matter, I think some CNET v. Etilize --

copyright issues have arisen.

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that's in the middle of the page on Page 6 -copyright issues arose. Q. Okay. Before we move any further, since

there might be a couple of these, can you tell me whether you actually performed any -- excuse me -either abstraction filtration comparison or code analysis as part of the copyright issues that you helped to address? A. Q. Sure. And I don't know if you're comfortable

saying that in the Facebook case, but.... A. Well, in the Facebook case, we did not get

to code, so these are -- this is a -- it's not code. Q. A. Q. A. Great. I'll leave it that. Yeah. In the Etilize -- the CNET v. Etilize

case, there was code analysis. Q. A. Q. Related to the copyright issue? Related to an issue of copyright. Can you explain what your distinction is

between copyright issue and an issue of copyright? A. So during -- I'm trying to make a -So what I -- I think So what happened

determine what can I say here.

what I -- I think I can say that.

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is, during the patent -- I was hired -- I was retained by CNET as their expert in -- for invalidity and for infringement, or for validity and infringement. Q. A. Sure. Patent infringement. And what

Patent infringement, correct.

had -- what was discovered is that Etilize -- that CNET ended up discovering that Etilize might have copied a database schema and used it as their own. So the question arose whether that -- whether to pursue a copyright issue there or whether it was a trade secret issue or what had happened. copyright arose in that matter. It is a -- it is a trade secret issue that has -- I think is being -- I think is being tried here soon. It's not on my list because I have too So

much other things to do, and I'm not going to be an expert in that -- in the -- or not going to testify at that trade secret case, but it's being tried soon. So copyright arose, turned out to be a trade

secret issue as opposed to copyright, but -- so it arose there. Q. Did you have any engagement in analysis

related to the question of whether to pursue a copyright issue in that case? And I'm asking a yes

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or no question, if you don't mind. A. Q. So ask it again. Sure. Were you involved in the analysis

of determining whether to pursue a copyright infringement claim in the CNET case? A. I would not consider my activity to have

been -- the activity that I performed was not to make a determination as to whether or not to use -to do a copyright or a trade secret case, no. The

work that I did might have been involved in some of that, but I wasn't personally involved in it. wasn't -Q. A. Q. Okay. Mm-hmm. Are any of the other cases in this CV that Thank you. I

we're reviewing cases in which there was a copyright issue arose, and then when we identify those, we'll talk about the details. And I'm sorry to interrupt you. Before we

move on, are you -- are you personally involved in any of the copyright-related activity in the Facebook matter? A. Q. A. No, I don't -- no, I'm not. Thank you. I don't know where it stands, but I'm not

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doing anything. way. Q.

I'm not active; let's put it that

Thank you.

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Q.

So the Facebook issue in 2009 that's an

active matter, the CNET issue in 2008 as to which there are active matters, but you're not participating? A. That's correct. I think it became -- like

I say, I think it became a theft of trade secrets or

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a -- yeah, something like that. Q. case, yes? A. Q. That seems to me to be right, yes. And in only the two matters that we Right. And then the MathWorks and the IBM

discussed at length, MathWorks and IBM, did you perform any analysis relating to copyright; is that correct? A. Q. A. Q. Well, I don't think that's right. Okay. I mean -- no, I don't think that's right. Okay. How -- which other matters on

those -- of those four did you perform analysis related to copyright? A. Well, I think I've performed analysis I didn't perform -- copyright

related to copyright.

was not the central issue, but there would -- but copyright issues arose, and so I did some -- perform some analysis related to copyright, potential copyright assertions or accusations and so on. did do some analysis, but I mean -Q. So in the CNET case, did you perform any So I

code comparison? A. Q. Yes. Did you perform any abstraction filtration

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comparison? A. I believe -- I believe that I performed The question is did we

abstraction and comparison.

ever get to the point of -- did we ever get to the filtration piece in there, and I guess I'd have to say that to the extent that I did, it was trivial or not very serious. differently. It wasn't a full -- let me say it

I never performed a full abstraction

filtration comparison effort in the CNET v. Etilize matter with respect to copyright issues that arose during the litigation of this patent infringement. Q. And is it -- did you say that in the CNET

issue, it was only a database schema that was at issue, as far as the copyright goes? A. Well, it was database related, not nec -Database related. I

not exclusively the schema.

think what they -- I think what I said was that they discovered the lifting of a schema, but that led to a whole bunch of other stuff that they didn't think was at issue, and that's why -- that's how it started. But yeah, there was a lot of

database-related issues. Q. So did you perform analysis as to the

schema itself? A. Yes.

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Q. licensing? A.

Mr. Gray, are you an expert in software

I wouldn't -- you know, I don't have -The

the experience -- let me say it differently.

experience that I have had with software licensing has been to some extent in the negotiation of licenses, to some extent in the definition of licensed content, in some -- to some extent in trying to make sure that groups that were working for me or that I was working with were abiding by licenses and so on. So I've had experience with

licenses, but I don't think that I -- that that qualifies me as a -- I don't think that that expertise rises to the level of being able to opine on licensing matters per se. I don't think so.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Are there any other areas in which you

would hold yourself out as an expert that we haven't discussed? MR. FUCHS: THE WITNESS: Objection; form. Well, I have fairly broad

range of expertise in the software -- is this just a general question, just generally? MR. POLITO: A. Q. (Nods head.)

I have quite a bit of expertise in 35

years of -- or so, maybe a little more -- of effort in the software development industry. So there's a

number of areas where I'm -- where my experience can be brought to bear in analyzing the reports and helping interpret it for a jury. So I think there

are a number of areas where my expertise would be applied.

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MR. POLITO:

Q.

Would you agree that your

experience relates more to the design of software than to the development of software? MR. FUCHS: THE WITNESS: Objection; form. Well, so you really are

asking -- I think what you're asking -- the way you asked that question leads me to ask you, then, what you mean by "development." I don't know how to -- I

wouldn't have teased that out. MR. POLITO: Q. Let's hypothesize that

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there's a development practice by which someone creates a functional specification and perhaps a technical specification, then someone else implements the technical and/or functional specifications. Would you agree that your

experience is more in the matter of developing functional and technical specifications rather than in the matter of implementing technical and functional specifications? MR. FUCHS: Objection; form, compound,

incomplete hypothetical. THE WITNESS: So using your definition of

"implementation," which I -- does that include tests as well, or is it ended -- or does test in there -MR. POLITO: Q. Let's keep tests

separately for a minute. A. program -MR. FUCHS: THE WITNESS: MR. FUCHS: THE WITNESS: programming. Objection. Sorry. Go ahead, Josh. Okay. So you're really talking about

Same objection. I think you're talking about

When you say "implementation," you're

really talking about programming? MR. POLITO: Q. Sure.

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A.

Okay.

All right.

So my latter experience

over the last few years has more to do with analyzing source code and designing systems and software than it does with programming, over the last -- over the last few years. Q. years? A. I think certainly since I have been And "last few years," are we talking ten

involved -- I'd say since -- at least since the mid '90's. So what's that; 15 years? Yeah. Goodness.

Fifteen years, jeez.

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Q. Mr. Gray? A.

Did you analyze the Titan source code,

I remember looking at some Titan source

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code. Q. A. Did you analyze it? In -- when you say an -- the term "analyze

the source code" could mean a, you know, pretty broad range of things. What did you mean when you

say did I analyze the source code? Q. Did you, for instance, try to determine

how it worked? A. There were certain parts of it that I There were some

tried to determine how it worked.

aspects of the Titan source code that I looked at to determine how it worked. I don't -- I don't know if

that's completely responsive, but -- so yes, I determined how some parts of it worked. Q. sorry. A. Did you perform your analysis -- I'm Were you finished? I was going to say I looked at it to I was just

determine how some parts of it worked. trying to be complete. Q.

Did you perform analysis independent of

the analysis performed by Mr. Funck and his associates? A. Q. Yes, I did. And are -- is that analysis reflected

anywhere in your report?

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(Pause.) THE WITNESS: I don't -- I'm trying to I don't

recollect if I made any reference to it.

see that I have cited to it, to my analysis of the Tit -- of any aspects of the Titan source code. don't know that I've cited to any body of Titan source code. I can't remember. So while I remember I

looking at some Titan source code, I must not have relied on it. MR. POLITO: Q. So your conclusion in

9.5.3, you're relying on a single log file to arrive at that conclusion? A. I've cited to the one log file, and I

believe that's what I'm relying on for the conclusion that is contained in Section 9.5.3. Q. A. And you're not relying on any source code? I don't cite to it, so I must not have I mean, it must be that the log file

relied on it.

is all I relied on for the conclusion that I drew here.

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Q.

That's fine.

How did you decide whether a

document should be on this list or not? A. I think it's -- the qualification is

whether I considered it or relied on it in the development of my report, with probably a bias towards over-inclusion. By that I mean with a bias

towards -- if there was a document that I may or may not have considered very carefully or that was cumulative to some other document that was on there, I think it -- the list should reflect -- have a bias towards over-inclusion, meaning that it should

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reflect documents, even though there may be some cumulative aspect of -- or -- but I don't -- and -no, that's -- that's sufficient.

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Q.

So would you agree that there's no way for

anyone to determine which of the Exhibits 1 through 1,880 you actually considered in creating your report? MR. FUCHS: THE WITNESS: Objection; form. I don't know that -- I don't

know of a way other than to -- I mean, these are exhibits to depositions. The depositions refer to

the plaintiffs' exhibits, and I've read -- there's a lot of depositions that I've read, and so one way to get a better feel for it would be based upon the depositions that I've read, which point to the plaintiffs' exhibits, which would give some indication of which of the files I had opened or read or not, and so on. That would be a better But

way -- that might be a way to approximate it. even at that, I don't think it's going to be

conclusive, but it would be a way of getting closer to understanding that. MR. POLITO: Q. Did you consider every

deposition that you list in your Appendix 3? A. I read some or all of -- I said -- read

some or all of each of these depositions, yes.
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MR. POLITO:

Q.

And is there any way to

tell which exhibits you relied upon as opposed to considered? A. Probably, I think, that it would be -- it

would be true -- at least it's my intent -- to have identified exhibits relied upon actually in the body of the report, would be my intent.

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Q.

Does your report contain or refer to all

data and other information that you considered in forming your opinions in your report? MR. FUCHS: THE WITNESS: Objection; form. Well, of course I have

relied on my own experience and background in addition to the information that is in the report in the forming of my opinions which are contained within the report. But other than that, I believe

and intend that the report contains the information that I have relied on.
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June 8, 2010 ATTORNEYS' EYES ONLY
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C E R T I F I C A T E OF REPORTER

1 , N a t a l i e Y. B o t e l h o , a C e r t i f i e d Shorthand Reporter, hereby certify that the witness i n t h e f o r e g o i n g d e p o s i t i o n w a s b y me d u l y s w o r n t o t e l l the truth, the whole truth, and nothing but the truth in the within-entitled. The s a i d d e p o s i t i o n was taken down i n shorthand by me, a d i s i n t e r e s t e d person, a t the time and place therein stated, and that the testimony of said witness was t h e r e a f t e r reduced to typewriting, b y c o m p u t e r , u n d e r my d i r e c t i o n a n d s u p e r v i s i o n ; That before completion of the deposition r e v i e w o f t h e t r a n s c r i p t [X] w a s l [ ] w a s n o t requested. I f requested, any changes made by the

deponent (and provided to the reporter) during the period allowed are appended hereto. 1 f u r t h e r c e r t i f y t h a t 1 am n o t o f c o u n s e l or attorney for either or any of the parties to the s a i d d e p o s i t i o n , nor i n any way i n t e r e s t e d i n the e v e n t o f t h i s c a u s e , a n d t h a t 1 am n o t r e l a t e d t o any of the parties thereto. DATED: J u n e 1 7 , 2 0 1 0

N a t a l i e Y. B o t

h o , CSR N o . 9 8 9 7