Miller v. Facebook, Inc. et al

Filing 68

Declaration of Julio C. Avalos in Support of 67 Reply to Opposition filed byFacebook, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 67 ) (Avalos, Julio) (Filed on 7/22/2010)

Miller v. Facebook, Inc. et al

Doc. 68

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 5:10-CV-00264 (WHA) DECLARATION OF JULIO C. AVALOS IN SUPPORT OF FACEBOOK INC.'S REPLY BRIEF IN SUPPORT OF IT MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT Date: Time: Court: Judge: August 5, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

OHS West:260956430.1

DECL. OF JULIO C. AVALOS ISO FACEBOOK'S REPLY ISO MTD SECOND AMENDED COMPLAINT 5:10-CV-00264 (WHA)

Dockets.Justia.com

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I, Julio C. Avalos, declare as follows: 1. I am a member of, and in good standing with, the Bar of the State of California and

am admitted to practice before this Court. I am an associate at the law firm of Orrick, Herrington & Sutcliffe LLP, counsel to Plaintiff Facebook, Inc. ("Facebook"). I make this declaration of my own personal knowledge unless otherwise indicated herein. If called as a witness, I could and would testify competently to the truth of the matters set forth herein. 2. Records of registered books, music, art, periodicals, and other works are available

for public search on the United States Copyright Office website, located at http://www.copyright.gov/records/. Upon arriving at that website, I clicked on a hyperlink entitled, "Search the Catalog." This link brought me to a page entitled "Public Catalog" that contained a search bar. I searched for the word "Boomshine" and then clicked on "Begin Search." The result of this search is the copyright registration page for the Boomshine computer file. According to the registration, Boomshine has been registered as a "Computer File" with the registration number TX000708955, with a registration date of May 5, 2009. The copyright claimant is listed as Plaintiff in this matter, "Daniel Menachem Miller, 2079 Kinsmon Dr., Marietta, GA, 30062." Using my web browser, I personally saved this page as an Adobe PDF file. 3. On June 16, 2010, I instructed a senior paralegal at my law firm to formally

request from the Copyright Office the registration deposit that Plaintiff had included with his copyright registration application for the Boomshine computer file, which the paralegal did on that same day. The Copyright Office subsequently delivered to us copies of Plaintiff's deposit. The deposit did not include any printouts, photographs or drawings of the Boomshine game or of the Boomshine game's screen display. The deposit did contain the Boomshine computer file along with other source code files. For instance, the deposit contained a file entitled "Cell.as source file.as." On information and belief, it is my understanding that the ".as" extension stands for "action script" source code. When viewed through a software program entitled Quick View Plus, the "Cell.as source file.as" was readable as computer software source code. In personal

OHS West:260956430.1

DECL. OF JULIO C. AVALOS ISO FACEBOOK'S REPLY ISO MTD SECOND AMENDED COMPLAINT 5:10-CV-00264 (WHA)

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view of me, the senior paralegal assisting me in this matter "printed out" the source code as an Adobe PDF file. The PDF file accurately portrayed the "Cell.as source file.as" source code as it appeared when viewed through the "Quick View Plus" software viewer. 4. Attached hereto as Exhibit A is a true and correct copy of the printout of the

Boomshine computer file copyright registration page followed by true and correct copies of the "Cell.as source file.as" source code file.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was hereby executed at Menlo Park, California on July 22, 2010.

/s/ Julio C. Avalos JULIO C. AVALOS

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DECL. OF JULIO C. AVALOS ISO FACEBOOK'S REPLY ISO MTD SECOND AMENDED COMPLAINT 5:10-CV-00264 (WHA)