Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 140

Declaration of Joseph G. Fiorino in Support of 112 Go Daddy's Motion for Summary Judgment filed by GoDaddy.com, 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).

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

cnn.com, you type in "cnn.com" in your browser, and

23

your browser displays the page of cnn.com.

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