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. 11

E,XHIBIT I

Dockets.Justia.com

TIMOTHY
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HALBERT
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2ILLIaOLI

HIGHLY CONFIDENTIAL
IN TIIE I'NITED STATES DISTRICT COTJRT
NORTHERN DISTRICT OF

CALIFORMA

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SANFRANCISCO DIVISION IN THBMATTEROF

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WITNESS INDEX Page Witness TIMOTHY HALBERT (swom)... . . ....

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Examination by MR. AVALOS -................-.....6

DANIELM. MILLER
v.

Plaintiff, CASENO: cv-10-264 (WHA)

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EXHIBIT INDEX No. Description
Page

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FACEBOOK, INC. and

Exhibit2063Plaintiffs

YAO WEIYEO
Defendant.

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. ...............,,.19 objections and responses to defendant Facebook, Inc.'s fi rst interrogatories and requests for production of
documents

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HIGHLY CONFIDENTIAL DEPOSITION OF TIMOTITY HALBERT

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Exhibit 2064 Email from T. Halbert to D. Miller dated March 7

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2007,BatesNo. 137-138
Exhibit 2065 Email conversation .............. --... .36
between gamebalance@gmail com and k2xl@k2x1-com dated March
8, 2QA7, Nl:llet 427 -428 Exhibit 2066 Email from T. Halbert ..... .'..... ...45 to D. Miller dated March 8, 2N7.Mlller 412 Exhibit 2067 Email from T. Halbert......... .. ....47 to D. Miller dated March 14,

VOLIIME I
Friday, February 1 1, 201
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Taken at:

Orrick Herrington & Sutcliffe LLP (London)
10? CheaPside

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EC2V 6DN. London United Kingdom
Reported by: Leanne Shipp Accredited Real-time RePorter JOB No. 155429

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2007,

Miller 135-136

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Exhibit 2068 Email conversation ...... -.............. 56 between A. Khalek and [e-mail] dated March 10, 2007.Miller 429-432

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Exhibits Continued. Exhibit 2069 Email from D. Miller ... '.-..... ...58 to T. Halbert dated March 24, 20O7,.ll{iller 47O-471 Exhibit 2070 Emarl from D. Miller .........--........61
to T. Halbert dated March26' 2007, Miller 435 Exhibrt2071 Spreadsheetof....... .. 1icense payments, Miller
84-1,1

APPEARANCES
Appearing for the Plaintiff: MR. B. HANCOCK 2224 ls1 Avenue

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HENINGER GARzuSON DAVIS LLP

Nor:h Birmingham
Alabama 35203 Tefephone: [phone]
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Appearing for the Defendant: MR. J. AVALOS and MS. J. VILARDO
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Exhibit 2072 Emaii from T. Halbert " ..... . ...'-.69 to D. Miller dated MaY 11,
2007, Miller 451

Exhiblt 2073 Two tables of....--... .-...... . -....84
decompiled code

ORRICK, HERzuNGTON & SUTCLIFFE LLP The Orrick Building
405 Howard Street San Francisco, Califomia, 94105-2669 TelePhone: [phone]

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Exhibit 2074 Email from M. Woollen .. .- ..... ..... 90 to D. Mil1er dated MaY 17, 2007,M.iller 452-464 Exhibit 2075 Wikipedia entry about ... ..... .. .-92 GP2X Wiz dated February 6,
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MS. S. AITKEN ORRICK, HERRINGTON & SUTCLIFFE LLP
107 Cheapside

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London EC2V 6DN United Kingdom

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Exhibit 2076 Screenshots ftom ..."...... . ..- ...92 K2xl-.com, 38 Pages Exhibit 2077 Screenshots ofthe '...... .-.. .. ..-.102
Boomshine game

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Exhibit 2078 Cotor version of t}Ie .. . ..
Boomshine screenshots

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VideograPher

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TIMOTHY

HALBERT
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ZILLIaOLI

HIGHLY CONFIDENTIAL
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iPhone one ... um ... and I didn't make any effort to chase up any kind ofshare ofthe money for that because I thought I'd already ... um ... exhausted his generosity enough by

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I suppose you could call it integration between the Obechi
game and

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and the Facebook

APl- Is that an accurate

statement?

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that stage. Q. Okay, I understand. Are you aware whether or not Mr. Miller was compensated for - for allowing Mr- Thurman to port Boomshine onto the iPhone? A. I believe they have a -- an agreement between them' I don't know if it's a wriften contract or whatever' I would be merely speculating so I would -- that's between
them.

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Okay, I'd like to retraot what I just said. Q. No, I'm not trying to -- I'm not frying to catch you in anything -A. No, it's fine. I may have misunderstood your question. I did -- I wrote none ofthe flash code for the Obechi game, but when it was put on Facebook, I wrote quite

A.

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a lot, probably a good halfofthe code required to integrate it with Facebook and the websites that housed

it'

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Q. Okay. Just going back to the GP2X -- the Boomshine j:.s 2X garne, do you know whether that game includes your music
and sound effects? A. I don't know. Let me see' I I think ifs it's probable it does. I think that s one of Danny's requirements for the for a port to be allowed, that it has to come with it, unless there are reasons for whatever

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Q. That's fine' For the record, Mr. Halbert, I don't think that the two statements that you just said were inconsistent. A. Okay. Q. I was referring on the one hand to the game and on
the other hand to --

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reason like a music file takes up quite a lot it's possible that some people might have to actually remove the music track. Well, I say "remove"; I mean dont include of any type in their final port' Um a music track of any

of memory, so

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in this ... I -- I presume the music was in this port. That's usually the requirement' particular Q. Okay. When you -- when you referred to Danny's

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said you had coded probably half, you of that kind of -- that Facebook API integration' is said,

Q. A. Right, great. Q. Um ... so you

Okay. * integration, that's something else.

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that right?

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Yes, that's what I would saY.

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Q. About how long would you say that that took you?

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"requirements", is thal - what are you referring to there? A. Nothing - nothing stringent of any kind' It's "' um ... merely he wouldn't want someone making a really justice embarrassing clone which does the original game no and, you know, attempting to at all and calling it Boomshine kind of enjoy some success off the back saying, "Oh, this is Boomshine, it's been done by this this porter", if you want to call them one of those, when actually ifs nowhere
near as good as the original' do you Q. And how do you -- how do you know that? How -- yeah, have knowledge of Mr. Miller's requirernents or let's just leave it at that. Is that something that he's
expressed to you?

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We did it October, November'ish of 2009, so I think it was about one month's work. It was a fairly drawn out process, but we eventually got there. Q. So your understanding, Mr. Halbert, having coded, you know, some or half of that code, the SWF -- the SWF flash file for Obechi, do you know where that flash file

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resides online? A. Um ... I could

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I could find the address' Um

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A. I think it's -- I mean it's preffy clear from
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what

the - it will be linked to by one of the web pages that we created for the Facebook application. It will also be on his K2xl.com website as well. Q. Okay. So sorry, I just want to clarif is it your testimony that that SWI file -- well, strike that' If I were to play the Obechi application through the Facebook

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can see ... um ... that when someone does approach him just about a port, he obviously wants it to be good and

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good so as not to defile the actual -- the name of the game' can Q. Okay. All right, thank you, Mr' Halbert' You put those aside.

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I would imagine by common sense he would want it to be L7
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platform, where would that SWF file reside? A. Um ... I'm pretty certain that's hosted on his website, K2xl.com and it just appears in -- in the Facebook
browser.

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Q. Okay. Has Mr. Miller told you anything about his
case against Facebook? A. ... um....

Did you Obechi game?
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did you do any actual programming for the

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Mr. Miller testified that you had helped code some of the --

A. No. I don't think so. Q. Okay. I'll represent to you that on Monday

I'm awate he's been advised to tell me as little possible. He's tried to tell me as little as possible without harming the nature of the case --

Q. And Mr. Yao?

A.

as

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