Petroliam Nasional Berhad v., Inc.

Filing 140

Declaration of Joseph G. Fiorino in Support of 112 Go Daddy's Motion for Summary Judgment filed by, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Slafsky, John) (Filed on 11/23/2011) Modified on 11/28/2011 (vlk, COURT STAFF).

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EXHIBIT 2 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PETROLIAM NASIONAL BERHAD, ) ) Plaintiff, ) ) vs. ) No. 09-CV-5939 PJH ) GODADDY.COM, INC., ) ) Defendant. ) ___________________________________) GODADDY.COM, INC., ) ) Counterclaimant, ) ) vs. ) ) PETROLIAM NASIONAL BERHAD, ) ) Counterclaim Defendant. ) ___________________________________) C O N F I D E N T I A L VIDEOTAPED DEPOSITION OF TINA DAM Los Angeles, California Friday, November 11, 2011 Reported by: Deborah R. Meyers, CSR No. 8569 40 1 Q Do you recall any conversations with 2 Mr. Clark in between your retention as an expert and 3 your signing or execution of the report? 4 you spoke to him regularly -- You said 5 A Sure. 6 Q -- for a period of days. 7 A Sure, about, like I said before, how does 8 registrations function, how does resolutions 9 function, how does the DNS function. 10 11 Q Okay. And did he offer you any other direction beyond your initial conversation? 12 A Direction? 13 Q Instructions, guidance? 14 A No. 15 Q Did he offer you any assumptions to make 16 for purpose of preparing your report? 17 A No. 18 Q Did he contribute in whole or in part to 19 the preparation of the report? 20 A He contributed in part to it, yes. 21 Q And what was the manner of his contribution 22 to the report? 23 A Drafting sections of the report. 24 Q Okay. 25 together? So the two of you drafted the report Is that accurate? 41 1 A I would say Mr. Clark would do the draft, 2 and I would then make edits on it so that it would 3 become my report and my writing. 4 5 6 7 8 9 10 11 12 13 14 Q So you would speak to Mr. Clark, he would draft the report, and then you would review it? A Based on what I told him, and I would take it then and edit it, yeah. Q Okay. Were there portions of the report that were deleted during the editing process and didn't make it into the final report? A There was -- I did a lot of edits on it, yes, to make it technical, factual correct. Q Are there any statements in the report that are not yours? 15 A No. 16 Q Are the graphics in the report yours? 17 A Some of them are, yes. 18 Q And the others were prepared by whom? 19 A Provided by Mr. Clark and asking me if that 20 21 22 was an accurate illustration of what I had told him. Q Did you have any other assistance from other individuals -- 23 A No. 24 Q -- the course of preparing the report? 25 A No. 42 1 Q Are the opinions in the report yours? 2 A I think you just asked that, and I said 3 4 5 yes. Q I asked if the statements in the report were yours. 6 A (Nods head up and down.) 7 Q Now I'm asking about the opinions. 8 A Oh, okay. 9 Q Did you carefully review all the documents 10 Yes. attached to the report? 11 A Yes. 12 Q Did you suggest the inclusion of any of the 13 exhibits to the report? 14 A Well, some of the screen shots are mine -- 15 Q Okay. 16 A -- that I provided as evidence for how I 17 would provide a certain statement. 18 Q Okay. 19 A So yeah, those are mine. 20 Q Okay. 21 A I think I also referred Mr. Clark to a 22 couple of the RFCs, which are the technical 23 documents for how protocols function. 24 Q What does RFC stand for? 25 A Request for information. It's a little 43 1 misleading because it really -- RFCs really are -- 2 oh, sorry, Request for Comments. 3 Q Okay. 4 A And it is a little misleading because RFCs 5 6 are technical standards. Q Did you come to any conclusions in the 7 course of your work that are not reflected in the 8 expert report? 9 A No. 10 Q Are you able to approximate what portion of 11 the report was prepared by Mr. Clark and what 12 portion was prepared by you? 13 14 A I think -- I think that's probably hard to say, but... 15 Q More than 50 percent? 16 A How do you -- how do you divide that up? 17 mean, I redlined and edited all of it. 18 not -- it isn't like there's a section in here that 19 is his and a section that's mine. 20 really -- 21 Q I There's So I wouldn't In terms of the original drafting of the 22 text in your report, how much of it is yours and how 23 much would come from Mr. Clark? 24 25 A The initial draft was provided by Mr. Clark based on our calls. 44 1 2 Q Okay. But in terms of the end result, the end report, what -- 3 A That is mine. 4 Q And is 100 percent of the wording in that 5 final report that you signed wording that you came 6 up with originally, or is some part of it conceived 7 by Mr. Clark? 8 9 A That's impossible for me to say, but it certainly is my opinions. 10 Q Why is it impossible for you to say? 11 A Well, I don't remember if like there's a 12 sentence that he wrote three of the words and I 13 edited three of the words. 14 you be a little bit more specific? 15 Q Sure. So I don't know. Can Are you familiar with the fact that 16 Petronas has retained another expert in connection 17 with this lawsuit? 18 A Yes. 19 Q And have you read the expert report 20 21 22 prepared by that expert witness as well? A No. MR. SLAFSKY: I'm going to mark as 23 Exhibit 4 a highlighted copy of the expert report of 24 Kevin Fitzsimmons in this matter. 25 (Defendant's Exhibit 4 was marked for 45 1 identification by the reporter and is 2 included herewith.) 3 4 BY MR. SLAFSKY: Q Ms. Dam, if you'll just take a moment to 5 flip through the pages here, I'm going to represent 6 to you that this is a copy of the second expert 7 report in this matter without any of the exhibits 8 attached thereto and with the addition of 9 highlighting in a number of sections. 10 A Okay. 11 Q So let's turn to page 2 of this report. 12 There's a highlighted graphic and a number of 13 sections of text that are highlighted. 14 Do you recognize either the highlighted 15 graphic or the sections of text that have been 16 highlighted? 17 18 A Yeah, the graphic is the same as it's in my expert report. 19 Q And does any of the text look familiar? 20 A Yeah. I'm guessing that you have 21 yellow-lined or highlighted text that is either the 22 same or similar in my expert report. 23 Q I think it's identical. 24 A Okay. 25 MR. CLARK: Actually, it's not, because the 46 1 hourly rates are different, and you have the hourly 2 rate on it. 3 BY MR. SLAFSKY: 4 Q I'm only referring specifically to page 2 5 here. 6 mislead you. 7 highlighted text tracks language in your report as 8 well. And I'm not -- my intent here is not to 9 My understanding is that the MR. CLARK: Well, let's be clear. 10 saying it's the same? 11 MR. SLAFSKY: 12 MR. CLARK: 13 THE WITNESS: Well, he's on page -- 14 MR. SLAFSKY: What page are you on? Are you 15 Correct. Well, it's not the same. Are you on page 2? 16 MR. CLARK: 17 MR. SLAFSKY: 18 page 1. 19 I'm on page 1 right here. We're not talking about I'm only referring to page 2. only -- 20 MR. CLARK: 21 MR. SLAFSKY: 22 MR. CLARK: 23 Oh, I see. -- referring to page 2. Okay. Sorry. were -- 24 BY MR. SLAFSKY: 25 Q So I'm So again, my question is -- I thought you 47 1 A 2 3 Oh, it has a number. MR. CLARK: So you're on page 2 of her report? 4 MR. SLAFSKY: Page 2 of her report. 5 page 2 of the Fitzsimmons report is what I'm 6 No, referring to. 7 MR. CLARK: 8 MR. SLAFSKY: 9 MR. CLARK: 10 MR. SLAFSKY: 12 MR. CLARK: 13 MR. SLAFSKY: 15 I thought -- This is --- you were on page 2 of her report. 11 14 Oh, I'm sorry. -- Exhibit 4. Okay. Let's just make sure we're on the same page here. Q So we're looking at Exhibit 4, which is a 16 highlighted expert report of Kevin Fitzsimmons, and 17 specifically we're looking at page 2. 18 19 20 And my question again is, you know, are you familiar with the highlighted text? A So what I said is I'm guessing, but I would 21 have to do a comparison of the two documents. 22 I'm guessing that you have highlighted or 23 yellow-marked words that either are similar or the 24 same. 25 Q Let's turn to page 3 of the -- But 48 1 A Yes. 2 Q -- same exhibit, please. 3 4 Again, there's a highlighted graphic and also some highlighted text. 5 A Uh-huh. 6 Q Do either the highlighted graphic or the 7 highlighted text look familiar? 8 A Uh-huh, sure. 9 Q Okay. 10 A The graph -- I think it's -- if it's not And -- 11 the same, then at least it's similar. 12 that's what a Whois data export looks like for .com. 13 Or actually, this is .net, but they are the same. 14 Q Okay. It's -- So at the bottom of page 3 of this 15 exhibit, there's a highlighted paragraph, and it 16 actually flips over to the next page, page 4. 17 A Uh-huh. 18 Q And there's also some highlighted text 19 there as well. 20 A Uh-huh. 21 Q Does that look familiar to you? 22 A Uh-huh, yes. 23 Q Why don't we look again at Exhibit 2, which 24 25 is your report. Strike that. Why don't I mark as a new exhibit, 49 1 Exhibit 5, a highlighted copy of the Expert Witness 2 Report of Tina Dam. 3 (Defendant's Exhibit 5 was marked for 4 identification by the reporter and is 5 included herewith.) 6 7 8 BY MR. SLAFSKY: Q And I'll just ask you to flip through this report as well. 9 A Uh-huh. 10 Q And I'm going to represent to you that to 11 the best of my understanding, the highlighted 12 language in this document corresponds to highlighted 13 language in Exhibit 4 which we were just looking at. 14 Do you have any understanding why the 15 statements in your report would also appear in the 16 second report by Mr. Fitzsimmons? 17 A I think because they're factual correct. 18 Q Because they are factual? 19 A They're facts. 20 Q Did you and Mr. Fitzsimmons speak in 21 They're facts about how -- connection with your projects? 22 A No, we did not. 23 Q So how would he have known what language 24 25 you were using? A Well, so then, if it's about the exact same 50 1 language, probably because Mr. Clark would have 2 drafted something for Mr. Fitzsimmons as well as he 3 did for me. 4 Q Can you think of any other explanation? 5 A It could have been taken from -- I don't 6 know. 7 no, that would be my guess. 8 9 It's general factual standard language. MR. CLARK: But It's odd that you say these are the same because they're not the same. But I'll let 10 you -- I mean, your representation is that they are. 11 So I guess we can correct that later. 12 BY MR. SLAFSKY: 13 Q If you just look at the top of the page 13 14 of Exhibit 5, which is the highlighted Dam report, 15 and you look at the first full paragraph that says, 16 "In my opinion, the domain name registrars," and 17 then there's a parenthetical -- 18 A Uh-huh. 19 Q "do not play a direct or active role in the 20 process of domain name resolution." And it says, 21 "Their only function," and then it goes on. 22 A Uh-huh. 23 Q Then if you look at Exhibit 4, which is the 24 25 highlighted Fitzsimmons report -A Uh-huh. 74 1 Q Have you done any consulting or 2 professional projects related to intellectual 3 property law? 4 A No. 5 Q Have you done any consulting or 6 professional projects related to cybersquatting? 7 A No. 8 Q Okay. 9 A I mean, not other than what is listed here, 10 11 Have you done any -- right. Q Okay. So I don't -- correct me if I'm 12 wrong here. 13 references to cybersquatting. 14 A I don't recall seeing any specific Okay. So I'll give you one that may not be 15 easy to see, but in the implementation of 16 internationalized domain names, that certainly was a 17 highly discussed and very relevant topic because 18 when you do introduce hundreds of thousands -- well, 19 it's about a hundred thousand characters to be used 20 in domain names other than the 37 that we've been 21 used to before IDNs were implemented, a lot of these 22 characters look alike. 23 with cybersquatting. And that creates problems 24 So, for example, I did some training to the 25 FBI and other law enforcement agencies, governments, 77 1 that you can't have -- so a good example that you 2 would have easier to understand is Cyrillic, like 3 the Russian characters, Greek, and Latin. 4 three alphabets -- Cyrillic, Greek, and Latin -- 5 they have several characters that look similar. 6 so if you mix them within one label, it means that 7 for an end user that would be confusing to look at. 8 They would think that -- for example, they 9 might think that it's Latin characters when in fact Those And 10 it's half Latin, half Greek. 11 you know, if they enter it wrong or if they click on 12 a link and they think they're going somewhere and 13 they're not, that creates problems. 14 So if they enter -- So certain regulations is in place for how 15 to manage that. 16 the IDN guidelines. 17 that's a little bit misleading term, IDN guidelines, 18 for those requirements because it is legal 19 obligations of registries to follow, gTLD 20 registries, that is. 21 Q Okay. That is all under what is called It's often been discussed that Have you ever done any consulting or 22 professional projects with respect to the handling 23 of trademark complaints by registrars or registries? 24 A No. 25 Q Okay. Have you ever done any consulting or 79 1 the same page here. I'm referring to publications. 2 So typically that would mean -- 3 A A book or something? 4 Q -- an article, a book, an essay. 5 A No. 6 Q Have you published any reports about 7 trademark law? 8 A No. 9 Q Okay. 10 Have you published any articles or reports about intellectual property law? 11 A No. 12 Q Have you published any articles or reports 13 14 about cybersquatting? A No, but I'm in the process of writing a 15 book about internationalized domain names, and that 16 will be a part of it. 17 18 19 Q Okay. And what are you going to say in your book about cybersquatting? A I'm going to talk about how it is -- how 20 different regulations are put in place to help solve 21 that problem with IDNs. 22 23 24 25 Q When do you expect your book to be published? A I have wanted to publish it for a long time, but I'm not quite done yet. 80 1 Q Okay. Have you ever published any articles 2 or reports about the handling of trademark 3 complaints by registrars or registries? 4 A No. 5 Q Okay. 6 And have you ever published any articles or reports about routing or forwarding? 7 A No. 8 Q Okay. 9 To the extent you've published articles or reports in the manner that you testified 10 about earlier, were those articles or reports peer 11 reviewed by other professionals in the field? 12 A Typically, mostly, yeah, they would be. 13 My -- 14 Q Who would have reviewed them? 15 A That would be my previous boss at ICANN. 16 Q And who was that? 17 A Potentially colleagues as well. My boss 18 was Kurt Pritz. 19 the nature of what I would write or the presentation 20 or what it was. 21 Sometimes I would ask colleagues to provide input or 22 reviews, you know, aspects of it. 23 Q And colleagues, all depending on Sometimes I would do it on my own. Have you ever given any public 24 presentations on dispute resolution for domain 25 names? 81 1 2 3 A Yeah. I would -- I would say that I have. At least with that subject in it? Q Okay. Yes. And can you describe to me what the 4 nature of those presentations would have been and 5 how many there were? 6 A I provided a lot of presentations around 7 the world basically at different Internet events 8 representing ICANN, talking about who ICANN is, what 9 they do, how different things function within the 10 11 12 organization and in the community. Q And have you ever given any public presentations about trademark law? 13 A No. 14 Q Have you ever given any public 15 presentations about intellectual property law? 16 A No. 17 Q Have you ever given any public 18 presentations about cybersquatting? 19 A As it relates to IDNs, yes. 20 Q Have you ever given any public 21 presentations about the handling of trademark 22 complaints by either registrars or registries? 23 A No. 24 Q And have you ever given any public 25 presentations about routing or forwarding? 103 1 2 3 Q What happens if they rule for the party that initiated the proceeding? A What happens? The party who initiated the proceedings 4 then can take over the domain name and become the 5 registrant. 6 7 Q Okay. Do you have any familiarity with the Anticybersquatting Consumer Protection Act? 8 A I know of it. 9 Q Okay. 10 A Just that it's in place to protect against 11 And what do you know of it? cybersquatting. 12 Q Okay. 13 A I may have reviewed it at some point. 14 15 16 And have you reviewed it before? I haven't recently. Q Okay. So did you review it in connection with your work for this lawsuit? 17 A I did not. 18 Q Okay. Have you ever reviewed the 19 legislative history behind the statute? 20 to refer to it as the ACPA because it's shorter. 21 Have you ever reviewed the legislative history for 22 the ACPA? 23 A No. 24 Q Have you ever reviewed any of the court 25 decisions interpreting the ACPA? I'm going 104 1 A No. 2 Q Okay. Have you ever studied or considered 3 the legal protections under US law for either 4 registries or registrars? 5 A If I have studied it? 6 Q Or considered. 7 A Do you mean in school or -- 8 Q No. 9 A -- classes or -- 10 Q In the course of your professional career. 11 A Depends on what you mean by "study." 12 I like -- 13 Q I said "studied or considered." 14 A Yeah, I have considered studying it. 15 Q So to be clear, so I wasn't asking if you Have 16 considered studying it. I asked if you studied or 17 if you considered, did you give thought to, the 18 legal protections under US law for either registries 19 or registrars? 20 A To some extent, yes. 21 Q Okay. 22 A Just by nature of interest. 23 Q Do you have any opinions about the legal And what was the context of that? 24 protections under US law for either registries or 25 registrars? 105 1 A I think it's difficult. 2 Q What is difficult? 3 A It's difficult to provide enough protection 4 without providing so much protection that it's a 5 constraint or barrier to business. 6 Q So the question of how much protection to 7 provide registries or registrars is a difficult one? 8 Is that what you're saying? 9 A And registrants. Yeah, I think so. 10 Q Do you have any understanding why there are 11 legal protections in place under United States law 12 for either registries or registrars? 13 14 15 16 17 A place? Q For why there are legal protection in Yeah. What is your legal understanding of why there are legal protections in place in this manner? A Well, they are setting up business in an 18 area where cybersquatting takes place, and by nature 19 of that, it's good for them to have protection. 20 21 22 23 24 25 Q And why is it good for them to have protection? A Otherwise they would be liable for a lot of different things that -Q And is that an undesirable outcome, if they're liable for a lot of different things? 106 1 A Some of it could be, yeah. 2 Q And why is that? 3 A Because if you -- so in the case of domain 4 name registrations, the fact that some people will 5 register domain names that infringe upon others' 6 rights, if a registrar would have to review every 7 single registration that is made, that would be a 8 burden, and it would not enable the automated system 9 that is in place today, which means, in turn, 10 registrars would either not have a viable business, 11 or they would have to charge a lot more than they do 12 today. 13 14 15 Q And what would the ramifications of that A It would be more expensive to make a domain be? 16 name registration, and registrars would need to hire 17 a lot of staff to sit and manually review every 18 single one. 19 20 Q Okay. And do you think that would be a reasonable scenario? 21 A If they had to do that? 22 Q Yeah. 23 A No. 24 Q Why is that? 25 A I just -- I don't think that would be 107 1 useful in terms of providing domain name 2 registrations. 3 It's not very useful. 4 make it automated. 5 I don't think having manual review of everything in 6 terms of domain name registrations is a useful thing 7 to do. 8 9 10 Q Okay. It takes a long time for end users. The technology is there to The protocols are in place. So Do you have any understanding concerning how registries handle trademark complaints? 11 A How registries handle it? 12 Q Yeah. 13 A A little bit. 14 Q And can you tell me? 15 A They have what is often referred to -- some 16 of them -- some of them don't. But some of them 17 have what is often referred to as take-down 18 procedures where in certain cases they will take 19 down a domain name. 20 Q The registries will? 21 A Yes. 22 Q And do you know what those certain cases 23 24 25 are where they'll take down a domain name? A Where they find that criminal conduct has taken place in -- either by use of that domain name 108 1 or anything on that -- on a website of that domain 2 name. 3 Q And by criminal conduct, do you have in 4 mind any examples of the types of crimes that would 5 give rise to that action? 6 A It could be, for example, attacks on the 7 DNS, attacks on registries or registrars, servers, 8 that sometimes comes from sites or domains that have 9 been registered. 10 Q Do you have any understanding concerning 11 how domain name registrars handle trademark 12 complaints? 13 A To some extent. 14 Q Okay. 15 And is it similar to what you described or different? 16 A To what I described when? 17 Q In your answer to my question about 18 registries, my prior question. 19 A No, I think it's different. 20 Q Okay. 21 A I think, for example, you know -- well, for And how is it different? 22 example, UDRP cases, the results will go to the 23 registrar and ask the registrar to take action as 24 directed by the result. 25 Q Okay. 110 1 Q In connection with your preparation of the 2 report in this matter, did you review the website of 3 any other domain name registrars? 4 A No. 5 Q In connection with your preparation of the 6 report in this matter, did you review any of the 7 court filings in this matter? 8 A 9 Not other than what is in the exhibits. MR. SLAFSKY: I'm going to mark as 10 Exhibit 8 a copy of the First Amended Complaint in 11 this matter. 12 (Defendant's Exhibit 8 was marked for 13 identification by the reporter and is 14 included herewith.) 15 16 BY MR. SLAFSKY: Q So I just want to confirm. I don't believe 17 this document is identified as an exhibit to your 18 expert report. 19 before? 20 A Is this something that you've seen You know, a lot of these look the same to 21 me, and I don't remember these case numbers, but -- 22 so if you don't mind, I would ask Mr. Clark -- 23 Q Well -- 24 A -- to let me know if it was part of them or 25 not. 111 1 MR. CLARK: 2 THE WITNESS: It's not. So if it's not, then no. 3 have not seen it before. 4 I BY MR. SLAFSKY: 5 Q Okay. Likewise, I'm going to mark as 6 Exhibit 9 a copy of the Amended Answer and 7 Counterclaim in this matter and ask you to look at 8 it and see if it is familiar at all. 9 (Defendant's Exhibit 9 was marked for 10 identification by the reporter and is 11 included herewith.) 12 BY MR. SLAFSKY: 13 MR. SLAFSKY: 14 MR. CLARK: 15 Perry, did I give you a copy? Of the counterclaim? I don't think so. 16 THE WITNESS: So I'm going to say again, 17 being not familiar with lawsuits or law cases, you 18 know, they -- they just unfortunately look really 19 similar to me. 20 Mr. Clark if this was part of the material or not. 21 So I'm sorry. 22 BY MR. SLAFSKY: 23 Q Okay. So I'm going to have to ask I can't answer that for you directly. Most of the documents in this 24 lawsuit, most of the court filings, are part of the 25 public record. Can I infer from your statements 112 1 that you didn't independently review the court file 2 that's public about the claims or defenses in this 3 lawsuit? 4 A Yeah, that's right. Before I was retained 5 by Mr. Clark and after we had had the first call, I 6 did a Google search just out of curiosity. 7 really go to any extent of looking for it, just very 8 briefly. 9 have not gone and searched for it or seen anything 10 11 And I didn't -- nothing came up. I didn't So I independently. Q Okay. Do you recall anything in particular 12 that came up in that Google search that you 13 reviewed? 14 A Nothing. 15 Q Okay. 16 Are you familiar with the phrase "domain name resolution"? 17 A Yes. 18 Q And what does that mean? 19 A It has to do with -- for example, if you 20 sat at your computer and you want to go to -- and 21 read the day's news, so maybe you want to go to 22, you type in "" in your browser, and 23 your browser displays the page of 24 25 The steps that takes place from the point in time where you enter or click on a web address to 114 1 A But certainly, you know, for any new domain 2 name registrations, ISPs would have to find 3 information of where to locate the addresses for 4 those somewhere, and that happens in zone files. 5 Q Okay. And what is a name server? 6 A A name server is basically a computer. I 7 mean it's a server, but it's a computer that holds 8 information about addresses for a domain name. 9 10 11 Q Okay. And what role does the name server play in this process called domain name resolution? A Similar to that of the server. You know, 12 the server that holds the zone file also can be 13 called a name server. 14 15 16 17 18 Q Can domain name resolution take place without a name server? A Do you mean at all or -- can you specify a little bit? Q Can the process of domain name resolution 19 take place, as a general matter, without a name 20 server? 21 A Being in place? 22 Q Yeah. 23 A No. 24 Q And why is that? 25 A That's how the DNS is set up. 115 1 2 3 Q Okay. How is a name server connected to a domain name registration? A So a domain name needs to hold information 4 about what name server, you know, is authoritative 5 for the addresses for the domain name. 6 of the Web server, the mail server, and so forth. 7 8 Q So in terms And how is that name server information associated with a domain name registration? 9 A It's not. 10 Q It's not? 11 A No. 12 Q So how is that name server information 13 14 associated with a domain name? A Well, at a particular domain name, it would 15 have to hold information about what name servers to 16 have. 17 Q And where does that information come from? 18 A It can come from either the registrant or 19 20 the registrar. Q And but for the registrant or the registrar 21 providing that information, can a domain name 22 resolve? 23 A 24 25 Without the information for the name server provided, can it resolve? Q Yeah. 116 1 A No. 2 Q And how is it that a registrant, a 3 customer, can associate that information with a 4 domain name? 5 A You can -- it depends on the registrar; 6 right? 7 account with the registrar, and there's a place 8 there where you can put name server information. 9 Q But you would typically log into your Okay. Just want to clarify that you're 10 referring to the -- you're referring to interaction 11 between the registrant and the registrar? 12 what you're talking about when you refer to the 13 online account? 14 15 A Is that Well, so you would go to the registrar's website, log into your account with that registrar. 16 Q Okay. 17 A And you could there, you know, put 18 19 20 information about the name servers. Q And then what does the registrar do with that information about the name servers? 21 A 22 name. 23 Q 24 25 They put it on the file for the domain Okay. And does that typically happen in an automated manner? A Yeah. 117 1 Q And when the registrar puts the information 2 on the account for the domain name, what happens 3 next? 4 A I'm not sure what you mean. 5 Q Does the registrar, for example, have to 6 provide that information to a registry? 7 A Yes. 8 Q Okay. 9 A Because that information needs to sit in And why is that important? 10 the zone file that the registry hosts and the 11 registry needs to have that updated information in 12 place -- 13 Q Okay. 14 A -- in order for users to be able to go to 15 16 the right place. Q Okay. And can resolution of the domain 17 name happen if the registrar does not provide that 18 information to the registry? 19 A No. 20 Q Can routing of the domain name happen if 21 the registrar does not provide that information to 22 the registry? 23 A What kind of routing? 24 Q Domain name routing. 25 A Can you be more specific? 118 1 Q Sure, pointing a domain name at an IP 2 address or associating a domain name with an IP 3 address. 4 A 5 6 No, that cannot happen without there being an authoritative server that provides that address. Q Okay. And can domain name forwarding 7 happen if the registrar does not provide information 8 to the registry? 9 10 11 12 A Well, it wouldn't be forwarding to the right place. Q Okay. So it wouldn't happen in the way its intended to happen? 13 A Right. 14 Q Can you describe to me your understanding 15 16 of the concept of domain name forwarding? A Sure. So if you have -- I'll do it based 17 on an example. 18 certain website, and let's say maybe you want to 19 change company name. 20 registration. 21 go into your settings for that domain name 22 registration and you say I would like that to 23 forward to the old address, for example. 24 25 Q Okay. If you have your company at a So you make a new domain name And then once you've done that, you And in your experience, is domain name forwarding an unusual practice? 119 1 A No. 2 Q Can you think of any other common uses for 3 domain name forwarding other than the scenario you 4 just described? 5 A Email, email forwarding. 6 Q Okay. 7 A I mean, there can be different reasons why Any other examples come to mind? 8 you want to do the forwarding. 9 mean? 10 Q Is that what you I'm just looking for some illustrative 11 examples based on your general experience in the 12 domain name community, the marketplace. 13 A And there can be many different reasons to 14 do forwarding. 15 Certainly it is what cybersquatters do. 16 Q Okay. 17 A It can be, you know, rebranding of your 18 company. 19 anything that you want in terms of the address for 20 your finding information. 21 tons of different reasons for why you would want to 22 do forwarding. 23 Q It can be, you know, changing, you know, I mean, there can be just And you stated earlier that you've 24 registered a number of domain names yourself. 25 you ever used domain name forwarding? Have 120 1 A Yes. 2 Q Okay. 3 A I've used it for email forwarding. For what purpose? As 4 opposed to setting up my own email server, I do 5 forwarding. 6 done it with Web too on a personal website. 7 8 Q Have I done it with Web? Yes, I've And can you explain to me specifically what you mean by that? 9 A With the website? 10 Q Yes, please. 11 A Yeah, I'll give you one example of it. A 12 friend that I was helping set up a company in the 13 US, we registered -- well, he already had a website 14 running under a .dk address, and so he wanted a 15 similar company set up in the US. 16 period of time, he wanted the Web addresses to be 17 the same. 18 incorporated in the US was under a different name. 19 So we registered that name as a domain name, and 20 then we took that address and forwarded it to the 21 Danish website address. 22 23 And for the first So -- but the company that was It was good for him because he could go out and meet with potential customers or -- 24 Am I supposed to wait when that happens? 25 THE VIDEOGRAPHER: No, you can continue. 121 1 THE WITNESS: Okay. So it was good for him 2 because he could go out to potential customers and 3 partners and whatnot with a business card with his 4 new company name on it without having to set up a 5 new website yet. 6 BY MR. SLAFSKY: 7 Q Okay. 8 A So that was helpful. 9 Q I'm going to take a look at Exhibit 2, 10 Thank you. which is your expert report without the exhibits. 11 A Yes. 12 Q On the bottom of page 3, you refer to the 13 usual process where a registrant submits a request 14 for a domain name to a registrar. 15 A Uh-huh. 16 Q And in subsection 3, you describe various 17 kinds of information that a registrant would provide 18 to a registrar. 19 A Uh-huh. 20 Q You refer to the registrant's 21 administrative and technical contact name and 22 contact information. 23 information typically? 24 A Yeah. 25 Q Okay. Does that include billing You refer to the registrant entering 122 1 and authorizing charges on his or her credit card 2 information. 3 A Uh-huh. 4 Q Is there any other information that a 5 registrant typically provides the registrar in the 6 course of this process? 7 A No. 8 Q What about name server information? 9 Is that something that is provided? 10 A They can. 11 Q When you say "they can," are you referring 12 13 14 15 to the registrant or the registrar? A I thought you were asking about the registrant. Q I was, but I didn't understand what you 16 referred to by "they." So I'm asking you just to 17 clarify. 18 A Okay. The registrant. 19 Q Okay. So you said that the registrant can 20 provide name server information. If the registrant 21 doesn't provide name server information, does the 22 registrar provide name server information? 23 A Yeah. 24 Q Are there any situations in which neither 25 the registrant nor the registrar provide name server 152 1 REPORTER'S CERTIFICATION 2 3 I, Deborah R. Meyers, a Certified Shorthand Reporter, do hereby certify: 4 I am the deposition officer that 5 stenographically recorded the testimony in the 6 foregoing deposition; 7 That prior to being examined, the witness 8 named in the foregoing proceedings was by me duly 9 sworn; 10 11 12 That the dismantling of the transcript will void the reporter's certificate. I further certify that I am neither 13 counsel for, nor related to, any party to said 14 proceedings, nor in any way interested in the 15 outcome thereof. 16 Before completion of the deposition, 17 review of the transcript [ ] was [XX] was not 18 requested. 19 deponent (and provided to the reporter) during the 20 period allowed are appended hereto. If requested, any changes made by the 21 22 23 IN WITNESS WHEREOF, I have hereunto subscribed my name this 14th day of November, 2011. 24 25 ___________________________ DEBORAH R. MEYERS, CSR 8569

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