Miller v. Facebook, Inc. et al

Filing 115

Declaration of Julio C. Avalos in Support of 114 MOTION for Summary Judgment RE CONTRIBUTORY COPYRIGHT INFRINGEMENT filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C1, # 4 Exhibit C2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Related document(s) 114 ) (Avalos, Julio) (Filed on 3/3/2011)

Miller v. Facebook, Inc. et al

Doc. 115 Att. 9

EXHIBIT H

Dockets.Justia.com

ROBERT MADAYAG CONFIDENTIAL

2/10/2011

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MR. AVALOS:

2049, please. Thank you.

MR. REINHARDT:

(Document marked for identification as Defendant's Exhibit 2049.) BY MR. AVALOS: Q Look over this document, Mr. Madayag, and

tell me when you're done. A Q A Q Okay. Have you ever seen this document before? No. Are you aware that the copyright office

maintains a list of designated agents for purposes of the DMCA? A Q I am. Are you aware of that? Okay.

Do you know how to go about finding that list of designated agents for various companies registered with the copyright office? A Q Not specifically, no. Okay. Before sending out the letter

marked as 2048, am I correct then that you did not first investigate who the designated agent for DMCA purposes was for Facebook? A Q No. Okay. So I'll represent to you,

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Mr. Madayag, that 2049 is titled Amended Interim Designation of Agent to Receive Notification of Claimed Infringement, is the document that was filed with the Copyright Office and that was in place with the Copyright Office at the time that you sent this letter. If you'd look at the line that says,

"Signature of officer or representative of the designating service provider," do you see that line, Mr. Madayag? A Q I do. And underneath that there's a date there, Is that -- I

and it appears to be March 12th, 2009.

know it's a little chicken scratch, but do you see that? A Q I do. Okay. Farther up on the document one,

two -- the third field down is, "Address of service provider." A Q Do you see that? I do. Okay. And the address there is 151 Do

University Avenue, Palo Alto, California 94301. you see that? A Q I do. Okay.

Below that it says, "Name of agent

designated to receive notification of claimed

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ROBERT MADAYAG CONFIDENTIAL

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infringement." A Q I do.

Do you see that?

And it says Theodore W. Ullyot, who I'll

just represent is Facebook's general counsel. Underneath that line it says, "Full address of designated agent to which notification should be sent." A Q Do you see that, Mr. Madayag? I do. Do you see the address that's listed

underneath that? A Q I do. And that says 151 University Avenue; is

that correct? A Q That is correct. Is that the address to which the letter

marked 2048 was sent? A Q No. Okay. 2048 it appears was mailed -- it

says via first class mail, e-mail, and facsimile. Let's take each of those in part. Do you know the

address that this letter was actually mailed to, Mr. Madayag? A The address I imagine is the address

that's on there. Q Okay. And that's 156 University Avenue;

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ROBERT MADAYAG CONFIDENTIAL

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is that right? A Q That is correct. Okay. And that's -- again, that's not the

address that's listed as the full address of designated agent to which notification should be sent in 2049, is it? A Q No. Okay. A few lines below on 2049 you'll

see it says telephone number of designated agent, facsimile number of designated agent, and underneath that it's e-mail address of designated agent. you see that line, Mr. Madayag? A Q I do. Do you see the e-mail address that's Do

listed there as the e-mail address of Facebook's designated agent? A Q I do. Was that the e-mail address to which this

letter was e-mailed? A Q At which point in time? Let's talk about this one in particular on Do you recall whether this letter

May 7th, 2009.

was e-mailed to [e-mail]? A Q I do not recall. Okay. If you look at the address block on

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A Q

No. Okay. But is it fair to say that the

applica -- the words "application directory" don't appear in this letter, do they? A Q I don't believe so. Okay. And it follows then, Mr. Madayag,

that the letter doesn't make any kind of demand that any material be removed -- any listings be removed from the Facebook application directory; is that right? A If the word "application" was not listed I

imagine that wouldn't, yeah. Q All right. According to this letter,

Mr. Madayag, who -- who owns the intellectual property rights in the Boomshine video game? A Q Mr. Danny Miller. Okay. Does Mr. Miller's name appear

anywhere in this letter, Mr. Madayag? A Q Cc. In the cc line.

In the cc line, okay. Anywhere in this letter does it identify

Mr. Danny Miller as the owner of the IP rights including the copyrights in the game Boomshine? A You know, actually, I think it -- I'm not You know,

sure if it was Danny or -- let's see.

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ROBERT MADAYAG CONFIDENTIAL

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Q A

Okay. -- at user operations, Facebook, to me

regarding my -- I guess the letter. Q Okay. I'll represent to you, Mr. Madayag,

that as far as we can tell from plaintiff's production and from a search of Facebook's records that this was the last communication between Facebook and yourself or anyone else at the -- at the Woodcock firm. Do you -- do you remember

responding to this e-mail? A Q e-mail? MR. BRIDGES: Advise the witness not to I don't recall responding to this e-mail. Okay. Why didn't you respond to this

answer to the extent it reveals attorney-client privileged information. A I invoke attorney-client privilege.

BY MR. AVALOS: Q Okay. But it's fair to say that you did

not respond to this e-mail; is that right? A Q I don't recall responding to this e-mail. Okay. MR. AVALOS: MR. BRIDGES: Can we take a break? Sure. Stand by, please.

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