Miller v. Facebook, Inc. et al

Filing 112

MOTION for Summary Judgment filed by Daniel M. Miller. Motion Hearing set for 4/7/2011 08:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. William Alsup. (Attachments: # 1 Affidavit Declaration of Brian D. Hancock in Support of Plaintiff's Motion for Summary Judgment, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H.1, # 10 Exhibit H.2, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Proposed Order Proposed Order Granting Plaintiff's Motion for Summary Judgment)(Hancock, Brian) (Filed on 3/3/2011) Modified on 3/4/2011 (wsn, COURT STAFF).

Miller v. Facebook, Inc. et al

Doc. 112 Att. 10

EXHIBIT H.2

Dockets.Justia.com

DANIEL MILLER HIGHLY CONFIDENTIAL
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Not that I

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Obechi SWF based on the way Obechi is designed. Are you aware of whether or not ChainRxn is designed in that same basic way as the Obechi website? A What do you mean basic way? a Well, with this -- a user makes -- decides that they want to give Obechi access, and then there's a call made from the user to, for example, your website, and then data in the game is provided back to the user through the Facebook website. Is that -- is that basically how this iFraming technolory works on Facebook? A The iFrame contains a -- a reference to a page that can exist on another server, and that external server can host the -- can host content from the game and also connect to the Facebook API to provide different features. a WeI, in your complaint do you say that Facebook doesn't host the chain reaction website, and instead it's provided through this iFrame, is the way you just described the way basically that you understand ChainRxn to work? A Yes, that's based on how I believe ChainRxn works. Page 269
So kind of the basic way that Obechi works on the Facebook website is the same as you understand the ChainRxn to work? I think fundamentally there's a lot of similarities. Okay. Is Obechi still available on the

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it does not modify the

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to kind of connect to Facebook through the API, are you awar:e that you signed a developer terms of
service?

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process, Facebook creates a page like this for particular applications that are created, is that kind of the way it works? I am not sure. I don't know. Do you know how this page is created?

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I don't recall, but I
Yes.

You would assume as much, right? And as part of that kind of sign-uP

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I don't recall.

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Is it an automated process where you register Obechi? A I'm sorry, I didn't hear you. Is it like an automated process or something every time you want to put a new app on Facebook that Facebook automatically creates this
page?

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I dont know.

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A I believe so. I can't speak for how Facebook operates. a What does Obechi mean? A I'm sorry? I didn't hear you. a What does Obechi mean? A

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Obechi? It's actually just a random word.

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I think ifs an African wood. a How did you come up with that name? A I think I went on a random word generator
website one day. Other than this game Obechi, are there any other games that you operate on Facebook? Not that I'm aware of. MR. CHATTERJEE: Let's mark itas2034. (Document marked for identification as Defendant's Exhibit 203 4.) Hopefully you don't make me read all this.

Facebook website? To my recollection I believe so. MR. CHATTERJEE: 2033. (Document marked for identification as Defendant's Exhibit 2AT.\

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BY MR. CHATTERIEE:
Do you recognize this document 2033? Yes. What is it? lt's a web page. Is this a web Page that You set uP? Define "set up." Well, did you create kind of the the page that says Obechi is on Facebook to allow for discussion about it? I didn't create the page. Facebook generated the page. I provided certain pieces of

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BY MR. CHATTERJEE:
Well, if you can look at the document
requests that number 31.

I gave you, there's a document request

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A Do you know what Page that is? a l don't know offthe top of my head, but I1l find it for you real quick. It's about 37. A What number? What document number was it? a Request number 31. A 31. Sorry, ifs a lot of documents in
front of me. 231 --2031? a No, no, it's -- I'm sorry, ifs 2029. I apologize. I thought you were asking me what the

content.

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Okay. So when you --

so when you wanted

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DANIEL MILLER HIGHLY CONFIDENTIAL
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document request number is.

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MR. CHATTERIEE: You can PutYours in front of him if you want.

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Okay.

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Facebook about ChainRxn has helped generate revenue for Boomshine?

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MR. BRIDGES: 31. BY MR. CHATTERJEE:

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a So request number 31 asks for all documents that relate or refer to any Facebook user information you collected or through -- from or through the Obechi video game. Do you see that? A Yes. a This was a document that Mr. Hancock sent us in response to that question. Do you see that? A Yes. a Do you know what these numbers are that
are on these pages?

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No. Are you aware of what the average growth rate in revenue was for Boomshine from inception to May 2009? A Not off the top of my head. a Would it surprise you that on average the growth rate of revenue from the inception to May 2009 for Google Ads was negative 1.2 percent
relating to Boomshine? Again, I -- I don't have that in front of me, so. And that after your notice of infringement your aveftrge growth rate was 4.84 percent? I'm not aware of those numbersOkay. And didyouknowthatwhen Facebook removed ChainRxn from its website, Boomshine's average reyenue growth from Google Ads fell back

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A I believe those are what I stored as Facebook user names or user IDsa User IDs. And there's about i35 pages them, correct? A I don't know exact amount, but I'll take
your word for it.

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score.

The pages are numbered'
135, yes.

Why did you keep these user

ID*?

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down to negative 1.63 Percent? I'm not aware of that. Once ChainRrn was removed from Facebook's website, is there any particular reason you didn't launch Boomshine on Facebook's website? I felt that it was too late.

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Page

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I needed a way to link the user to their

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Did you -- did you provide a privacy policy on your game?

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I have a privacY PolicY on mY game' Is there any other user information you store other than these numbers? There's no other Facebook user information that I store that I'm aware of. How would you be able to confirm that? I'm not sure I understand your question. Well, if you wanted to confirm that these

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You had seen other similar games launch and become very popular on Facebook, though, right? But you still felt it was too late even though other people had succeeded? Yes. MR. CHATTERIEE: 2034? THE REPORTER: 2035. MR. CHATTERIEE: 2035(Document marked for identification as Defendant's Exhibit 203 5.)

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Yes.

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user IDs were the only thing that you kept, how would you be able to search your database or your computer servers to know that? I have a column marked Facebook user lD or user ID which is Facebook users. Do you think Obechi was a successful game

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MR. BRIDGES: I'd like to markthe document highly confidential, if we can. MR. CHATTERJEE: That's fine. Let's mark the transcript highly confidential as well. MR. BRIDGES: Agreed.

BYMR. CHATTERJEE:
document?

on Facebook? Depends on your definition of success. Do you think that your dispute with ChainRrn -- has helped Facebook about ChainRxn generate revenue for Boomshine? I'm sorry, canyourepeatthe question?

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I thought that it would be valuable for you guys to have. a Did you give this W-9 to somebodY?

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Do you know whY You Produced this

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Yes.

Do you think that your dispute with

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Who? My lawyer.

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ads?

lt's not cost Per Mochi? And earnings, what does the earnings mean? How much money was eamed total. And that's earned total as a result of

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Yes. ECPM is I think Per 1,000

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MR. CHATTERIEE: Let's take a break. I might be done. MR. BRIDGES: Not a problem. TFIE VIDEOGRAPFIER: Stand by, please. We're off the record. The time is approximately
5:37.
(Recess 5:37-5:46 P.m.)

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impressions how much money is earned. Okay.

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MR. CHATTERIEE: I thinkthis is my last document, we'll have a five*minute break, then I'll
decide if I
have more questions.
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MR. BRIDGES: No Problem. (Document marked for identification
Defendanf s Exhibit 2041 .)

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BY MR. CHATTERJEE: a This is a document that was produced today. I just want you to take a quick look through it and tell me what the various pieces of this
document are.

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A a So for the first several pages before we get to the tax statements, what are these documents? A This is a ad revenue rePort. a And who creates this ad revenue report? A Kongregate'
Okay. I looked through it.

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THE VIDEOGRAPTIER: Back on the record the time is approximately 5:46. You may continue' (Document marked for identification as Defendant's Exhibit 2042.) BY MR. CFIATTERIEE: a So, Mr. Miller, what I've handed you is Developer Principles & Policies. If you look under Roman numeral I in presenting your policies, Facebook has a requirement that you must provide a link to your privacy policy and any other applicable policies in the info section of your application's profile page and on every page ofyour application. You see that? Do you do that with Obechi? I don't recall if it's inside the info settings, but I believe that it should be -- you know, there should be a privacy policy accessible'

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Yes.

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And so Kongregate -- is that kind - is this kind of like Kongregate's version of what Google Ads and Mochi do? A Based on my understanding, Yes' a Is there any particular reason why this stuff wasn't produced earlier? A I was looking through my stuff, and I rcalizedthatlmay have left this oul and I wanted to produce it to you guYs. a And these miscellaneous income forms, are these -- are these basicallY -A Which ones,I'm sorry? a At the very end, the last two Pages.

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Is it on every page of the application? I'm not sure. Did you ever take any measures to make sure you were being compliant with Facebook's developer principles and policies?

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added a privacy PolicY. And have you read this before? I think I have seen this page before. MR. CI{ATTERJEE: So, Julio, why don't we pull up Obechi.

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Yes. What did you do?

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Are these basically tax statements that Google and MTI Enterprises has issued to you?
Yes. Under the MTI agreement there was a time when the game was supposed to end, right? A I don't recall specifically offthe top of

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Okay.

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(Off-the-record discussion.)

BY MR. CT{ATTERJEE:
So where on this application page is there an indication of the privacy policy? Can you scroll down? Keep scrolling.

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Have you ever checked to see were true? if that A I don't think I ever checked. Okay.

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There. After the Twitter. a Okay. So that's -- that's where you've identified the profile? Okay. So if we click start, is it framed in that? So that's what you did, you put the privacy policy at the bottom, and then you framed
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if it ended,

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Yes.

inside?

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profile page. (Off-the-record di scussion.) BY MR. CHATTERJEE: a So this is the Obechi profile page, right? A I don't know if I would call it a profile page, but it's a page that Facebook generates. a Are you familiar with anything else that Facebook would call an -- your applications profile
page?

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Looks like that's what I did. Okay. Let's go to the applications

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what

Again I'm not, like, sure legality

of

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- what you mean by pseudonym and all this stuff, but K2xL is just the name that we chose to represent what we do. a Was it the name that you and Mr. Halbert chose or the name that you chose? A Name that I chose, but then we chose to represent Obechi. a Okay. And - and you didn't mean to suggest that -- when you entered that name that it
was K2xL,

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No. Is your profile -- is your privacy policy

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LLC,right?

Correct. If I did I would have written

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K2xL,LLCOkay. Is there any particular reason you decided to sue Facebook in Georgia originally? I can't answer that due to privilege. Did you ever take a look at your terms of selice or the developer policies prior to suing Facebook?

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listed on this page? A Not that I'm aware of.

MR. CHATTERJEE: Click to the info
section, Julio.

BY MR. CHATTERJEE: a There's also an info section up above. Is your -- is your privacy policy listed anywhere
there?

I don't recall.

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Obechi, is that something written by you? A I don't recall if I wrote that.

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No.
Is that

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is that content about -- about

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Do you ever remember investigating whether you had contractual obligations to Facebook because you were a Facebook member you had launched applications on Facebook? A I don't recall'
(Off-the-record discussion.)

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a Who else would have written it? A Tim. a Okay. And about K2xL, would you have written that? A Tim might have written that. a It has your phone number on it, right? A That's not my personal phone number. a It's K2xL's? A It's this Google voice phone number that I
have.

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BY MR. CHATTERJEE:
So subject to us resolving some of these document issues which I view as pretty significant,

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I think I'm done here.

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lfs been a long day. Thank you. THE VIDEOGRAPHER: Standby, please. This concludes this videotaped deposition of Danny Miller. The time is approximately 5:48. We are off
the record.

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Okay.

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a A No. a It's for you? A Yes. a Why doesn't this identifr anything on Mr. Halbert on there? A On this page?
phone number?

Okay. Does Mr. Halbert maintain that

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(Deposition concluded at 5:48 p.m.)
(Signature reserved.)

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We felt that -- I have no idea why, but guess it's better that it's not identifuing either

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Yes.

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ofus. It is identifyingK2xl-, right?
Yes.

And is thatK2xl-, LLC or your pseudonym^?^

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