Petroliam Nasional Berhad v. GoDaddy.com, Inc.
DECLARATION of Perry Clark in Opposition to 152 Opposition/Response to Motion, filed byPetroliam Nasional Berhad. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20 (Part 1 of 3), # 22 Exhibit 20 (Part 2 of 3), # 23 Exhibit 20 (Part 3 of 3))(Related document(s) 152 ) (Clark, Perry) (Filed on 12/9/2011)
CLARK DECL. ISO OPP. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH
1 PERRY R. CLARK, State Bar No. 197101
LAW OFFICES OF PERRY R. CLARK
2 825 San Antonio Road
Palo Alto, CA 94303
3 Telephone: (650) 248-5817
Facsimile: (650) 248-5816
5 Attorney for Plaintiff
PETROLIAM NASIONAL BERHAD (PETRONAS)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
13 PETROLIAM NASIONAL BERHAD
CASE NO: 09-CV-5939 PJH
DISCLOSURE OF EXPERT
WITNESS KEVIN FITZSIMMONS
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 26(a)(2)(A), Plaintiff
Petroliam Nasional Berhad (Petronas) discloses Kevin Fitzsimmons. This disclosure is
accompanied by the report attached hereto as Exhibit 1, which contains material designated as
“confidential” under the protective order in this case.
26 DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS
Case No: 09-CV-5939 PJH OPPAPP000182
Dated: October 3, 2011
LAW OFFICES OF PERRY R. CLARK
/s/ Perry R. Clark
Perry R. Clark
Attorney for Plaintiff
PETROLIAM NASIONAL BERHAD
CERTIFICATE OF SERVICE
On October 3, 2011, I served this DISCLOSURE OF EXPERT WITNESS KEVIN
FITZSIMMONS by First Class Mail and electronic mail on:
John L. Slafsky, Esq.
David Lansky, Esq.
WILSON, SONSINI, GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
650 493 9300
Dated: October 3, 2011
/s/ Perry Clark
-2DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS
Case No: 09-CV-5939 PJH OPPAPP000183
-3DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS
Case No: 09-CV-5939 PJH OPPAPP000184
I have been re
etained as an expert in th field of th DNS (Dom Name System). I a
mpensated at my normal consulting rate of $200 per hour. A copy of m resume lis
ation and wo experien is attache as Exhibit A.
Based on my experience, background and educat
tion as well as the inform
mation I hav
considere in connec
ction with my work on th case, I ha formed o
opinions regarding GoDa
and the d
domain name “petronastower.net” a “petrona
astowers.net, including with respect to
(1) the re
egistration of domain nam (2) the resolving of domain nam to acces websites, and
(3) the fo
orwarding of domain nam
mes. The ba and reason for my op
pinions and the material I
nsidered in fo
orming them include the documents cited to and attached as exhibits her
Domain Nam Registrat
A domain nam is a string of letters o numbers s
separated by one or more “.” or “dots,”
such as “
uscourts.gov that can b used to ac
ccess compu files stor on a netw
such as th internet. Commonly, domain nam are used by compute users to lo
ocate files th
websites. Wh a compu user typ a domain name into a web brows program
(such as I
plorer), the w browser uses the dom name t obtain the numerical I
(Internet Protocol) ad
ddress of a c
nnected to th internet th can provi (or serve the
computer files associ
iated with th domain n
name. One o the most fa
familiar uses of a domain
name is t obtain the IP address o the compu (often c
called a web server) stori the files
needed b a web brow to disp a webpa as illustr
rated below in Figure 1.
gure 1: Using a Doman N
Name to Fin a Web Site
In the exampl above, the “Domain N
Name Server that is resp
ponsible for the file
containin the IP add
.101.160 in F
Figure 1) wh the files associated with a doma
name can be located is called the Authoritativ Name Server.
B registering a domain n
name, a pers (called th registrant is able to d
ative Domain Name Serv that is as
ssociated with that doma name. To register a
name, the po
otential registrant submit a request t a domain n
name registr such as
GoDaddy Generally the registr does so b completin an online form by ide
name to be re
egistered, th prospectiv registrant’ name and contact info
payment information for the fees charged by the registrar
After the regi
istrant makes the request to register t domain n
name and pr
necessary informatio the registrar checks it database o registered domain nam to determ
if the dom name th registrant wants to re
egister is ava
ailable. If the requested domain nam
has not a
already been registered (a is not pr
rohibited fro registratio for some other reason
the regist then sub
bmits a recor to the appropriate dom name re
egistry. The content of t
record m vary but it must inclu the regis
stered domai name and the identity of two
ative Domain Name Serv designa for the d
domain name.1 There ar a number of
different domain nam registries for the vario “top-lev domains,” such as “.c
com,” “.net,” etc.
ames is Veri
isign, Inc.. I addition to submitting the record f
The regis for “.net domain na
ested domain name, the d
domain nam registrar c
collects the re
egistration f from the
T registry and registrar maintain a publicly acc
base, called the “whois”
database, that contain informatio from the domain nam registratio records of all register
names. The Verisign wh entry for “petronasto
ower.net” is below (Ex. G at GD000674):
ative Domain N
Name Servers a required for among other things, redund
Often, the Authoritative Domain Name Servers designated for a domain name when it is
first registered are owned and operated by the domain name registrar but this is not required.
This is the case for “petrontower.net” and, as shown in the above example, the designated
Authoritative Domain Name Servers “NS39.DOMAINCONTROL.COM” and
“NS40.DOMAINCONTROL.COM” are owned and operated by GoDaddy. The registrant can,
however, direct the registrar to designate whatever Authoritative Domain Name Servers the
registrant chooses. While many domain name registrars provide Authoritative Domain Name
Servers for their registrant customers, registrants can operate their own Authoritative Domain
Name Servers or use Authoritative Domain Name Servers operated by other domain name
registrars or other web services companies.
With respect to the domain names “petronastower.net” and “petronastowers.net,” my
opinion is that the conduct of the registrar in initially registering that domain name involved only
(1) collecting information from the registrant for submission to the registry, (2) determining
whether or not those domain names were available for registration, (3) collecting payment from
the registrant, and (4) communicating with the registrant regarding the status of the registration
In addition to the initial registration of domain names, domain name registrars perform
functions associated with the maintenance of domain name registrations, such as updating the
registrant’s contact information, transferring domain names between registrars and registrants,
and collecting renewal fees. I understand that GoDaddy was not the registrar which performed
the original registration of the domain names “petronastower.net” and “petronastowers.net.”
(Ex.C (Lewis Decl. at 2:23-24)); (Ex.D, GD-000393). In my opinion, the conduct of GoDaddy
that could be characterized as either the registration or maintenance of the domain names
“petronastower.net” and “petronastowers.net” consists entirely of the following2:
On or before March 30, 2007, GoDaddy received a request from the registrant of
the domain names “petronastower.net” and “petronastowers.net” for GoDaddy to
become the registrar of record for those domain names. (Ex. D at GD-000377).
On March 30, 2007, GoDaddy charged the registrant’s credit card for “.NET Bulk
Domain Name Transfer (6-20)” for the domain names “petronastower.net” and
“petronastowers.net.” (Ex. D at GD-000475).
By April 1, 2007, GoDaddy completed the transfer of the domain names
“petronastower.net” and “petronastowers.net” from the previous registrar to
GoDaddy and on April 1, 2007 GoDaddy sent an email to the registrant notifying
it of the completion of the transfer. (Ex. D at GD-000367, 369, 110, 152).
On April 26, 2008 and May 3, 2008, GoDaddy set the domain names
“petronastower.net” and “petronastowers.net” to “auto renew.” (Ex. D at GD000353, 350, 348, 346, 345, 344).
On May 3, 2008, GoDaddy charged the registrant’s credit card for “.NET Bulk
Domain Name Renewal (6-20)” for the domain names “petronastower.net” and
“petronastowers.net.” (Ex. D at GD-000467).
On May 2, 2009, GoDaddy again set the domain names “petronastower.net” and
“petronastowers.net” to “auto renew.” (Ex. D at GD-000313).
On May 2, 2009, GoDaddy charged the registrant’s credit card for “.NET Bulk
Domain Name Renewal (6-20)” for the domain names “petronastower.net” and
“petronastowers.net.” (Ex. D at GD-000447).
On July 2, 2009, GoDaddy sent a contact information update request to the
registrant of GoDaddy set the domain names “petronastower.net” and
“petronastowers.net” and updated the contact information. (Ex. D at GD-000310,
On December 18, 2009, GoDaddy received and logged a complaint regarding the
domain name “petronastower.net.” (Ex. D at GD-000302).
On December 21, 2009, GoDaddy sent a contact information update request to the
registrant of GoDaddy set the domain name “petronastower.net” and updated the
contact information. (Ex. D at GD-000302).
On January 24, 2010, GoDaddy sent a contact information update request to the
registrant of GoDaddy set the domain name “petronastowers.net” and updated the
contact information. (Ex. D at GD-000301, 110).
On March 23, 2010, the domain name “petronastowers.net” was renewed. (Ex. D
On May 9, 2010, the domain name “petronastower.net” was renewed. (Ex. D at
The process and implementation of domain name registration in general and by GoDaddy in particular
are described and referenced in agreements and documents overseen by ICANN, including those by and between
Godaddy, the registries, and ICANN. (Ex. F). Documents published by the Internet Engineering Task Force also
set forth the substantive characteristics of the implementation and function of domain name registration, including
RFCs 5730, 3375, 3632, 2832, 1034, 1035, and 2616. (Ex. H).
On May 18, 2010, GoDaddy t
transferred th domain n
pursua to a cour order from the previou registrant to Petronas. (Ex. D at G
On Ju 14, 2010, GoDaddy r
received and logged a co
domai name “petronastowers
s.net.” (Ex. D at GD-00
ugust 30, 20
010, GoDadd transferred the domain name “pet
pursua to a cour order from the previou registrant to Petronas. (Ex. D at G
ative Domai Name Ser
rver is the cri
onent in the i
that is res
sponsible for routing an internet use to the IP ad
ddress of the computer s
storing the fi
associate with that domain nam This func
ction of an A
Authoritative Domain Na Server i
illustrated below, wh shows a internet us searching for the web
bsite associa with the
T process by which a w browser locates the A
Authoritativ Domain N
Name Server for a
particular domain nam and obta the corre IP addres is called “
“domain nam resolution
In the situ
rated above, the domain name resolu
ution process occurs “be
ehind the sce
(and ofte in less tha one second) and begin at the mom the com
mputer user t
dgets.com” into his or her web brow
wser. Initiall the web b
browser subm a reques to
the Intern Service Provider’s (I
ISP’s) DNS server (Com
mcast in the f
figure above). The ISP’s
DNS serv then sear
rches its files, or “cache,” for the domain name r
record for th domain na
dgets.com.” If the ISP’s DNS serve has the dom name r
dgets.com” in its own fil it will re
eturn the app
propriate IP a
address for t
dgets.com” domain nam If, as in t example above, the I
ISP’s DNS s
server does n
have the record for “JonsWidgets
s.com,” it ca pull the do
omain name record with IP address from
oritative Dom Name Server. Usi this IP ad
ddress the w browser can then sen a
over the inter to the co
omputer at th IP address to route th appropria files back to
the web browser for display as a webpage on the internet user’s computer. The computer at the
IP address associated with a domain name is sometimes called a web server and the files it stores
can be used to display web pages or perform other functions.
Domain name records are distributed across the internet through a hierarchal arrangement
of special “name servers” (illustrated below). At the top of this hierarchy are thirteen “root
servers” which are specially maintained at select locations around the world. These root servers
contain records identifying the “top-level” domain name servers, or “TLD name servers,” for
each top-level domain, such as “.com” or “.net.” These TLD name servers are maintained by the
domain name registry for each top-level domain and contain records pointing to the
Authoritative Domain Servers which make up the lowest level of the hierarchy. The
Authoritative Domain Name Servers store the domain name records linking domain names to IP
A DNS server that is unable to locate a domain name record—such as for a newly
registered domain name—in its own files (or those of nearby servers) will ultimately make its
way across the internet to a device that can act as a “recursive name server.” A recursive name
server is virtually certain to be able to locate a domain name record by first querying the “root
servers,” then the TLD name servers, and ultimately the network of Authoritative Domain Name
Servers. It is by virtue of this “hierarchy” and the use of recursive name servers that a domain
name registry is able to propagate a new domain name record across the internet.
In my opinion the domai name regi
istrars do not play a direc or active r in the
process o domain na resolutio Their on function is to submit requests to the domain
gistries that specific dom names b linked to s
horitative Domain Name
Servers. It is the resp
ponsibility o the domain name regis to updat the TLD n
which in turn enable the process of
with the identity of Authoritative Domain Na Server w
Domain Nam Forward
Domain name forwarding which is a known a URL redir
rection, is a f
“forward a request for one dom name to the IP addr associated a second domain nam
Returning to the example from Figure 1 (reprodu
uced below), when an int
ternet user in
the doma name “Jo
com” into a web browse a request for the files associated w
dgets.com” is sent to the IP address listed in the record from the Authoritative Domain
erver for “Jon
com.” If the server at tha IP address is program
mmed to respo
to such re
equests with files that ar used to dis
splay a web page, the internet user’s web browser
will displ a web pa
only, such a server is cal a web se
erver or appl
A web ho
osting provid is a comp
pany that ren space on its servers t its custo
omers can us to
store files, such as fil for displa
aying web pages.
Domain name forwarding occurs whe the files s
stored at the server locate at the IP
address f a particul domain n
name direct r
requests for t content a
associated w that dom
name to a
another dom name. T
Thus, in the example abo a web b
dgets.com” would be “fo
orwarded” o “redirected to the IP a
address for t domain n
com.” The d
domain name resolution process wou then be i
These aspects of the process and implemen
ntation of domain name resol
lution are descr
ribed and refer
ments overseen by ICANN (E F) and RFC 5730, 3375, 3632, 2832, 10
034, 1035, and 2616
in agreeme and docum
by the IET (Ex. H).
“OtherJonsWidgets.com” and, using the IP address for “OtherJonsWidgets.com,” a request
would be sent for the files associated with “OtherJonsWidgets.com.” In response, the files for
“OtherJonsWidgets.com” would be returned to the internet user and displayed by his or her web
browser. In this way, an internet user searching for “JonWidgets.com” would be “forwarded” to
the webpage for the “OtherJonsWidgets.com.”
The process for domain name forwarding is completely separate from the process of
domain name registration and does not involve any action by a domain name registrar. Instead,
the process of domain name registration must be totally complete before the domain name
forwarding process can occur.
Additional Specific Opinions
Based on the foregoing and all of the materials I have considered as well as my
background, knowledge, and experience, I have formed the following additional opinions.
I have reviewed the document entitled “Order Denying Motion to Dismiss” (Doc. No. 87)
(Ex. B) which states:
Among other things, the court requires a record clarifying the mechanics
of what GoDaddy did or does with regard to the disputed domain names,
and what “forwarding” and “routing” are and whether either or both can
be considered part of domain name registration services generally or the
services offered by GoDaddy.
In my opinion, domain name forwarding and routing cannot be considered part of domain
name registration services generally or the domain name registration services offered by
GoDaddy. The process of domain name registration, in all relevant respects, involves nothing
more than the creation of a record linking a domain name to an Authoritative Domain Name
Server. A domain name registrar can perform all of the functions of domain name registration
and maintenance without owning or operating an Authoritative Domain Name Server for the
domain name for which it is the registrar.
The domain name forwarding service provided by GoDaddy for “petronastower.net” and
“petronastowers.net” was done using an Authoritative Domain Name Server owned and operated
by GoDadddy and that GoDaddy caused to be programmed to link those domain names to the IP
address of another server controlled and operated by GoDaddy. The domain name forwarding
service further involved programming that other server to respond to requests seeking
“petronastower.net” and “petronastowers.net” by redirecting those requests to a domain name
associated with a pornographic website.
3108 Paseo Robles
Pleasanton, CA 94566
Senior technology manager with extensive experience in infrastructure architecture and operations management.
Knowledgeable of best practices for daily operations, planning and change management associated with complex
technology solutions in enterprise environments. Experienced in managing complex projects that fulfill requirements
on-time and on-budget. Demonstrated ability to build motivated highly performing teams. Positive team player
with extraordinary drive to succeed.
Recent Career & Achievements
Director, IT Operations. Shoretel, Inc. – Sunnyvale, CA (2007 to present)
Shoretel is a leading provider of Pure IP unified communications systems. ShoreTel enables companies of any
size to seamlessly integrate all communications-voice, data, messaging-with their business processes.
Responsible for managing Shoretel’s IT operations team. This includes IT architecture, implementation and
on-going support of: LAN, WAN, SAN, phone system, os, active directory, backup, file shares, printer and
vpn’s. Additionally we provide desktop and mobile device support for 675 employees and 75 contractors.
Supported corporate growth building out new office locations in Maidenhead, UK, Austin, TX, Sydney, Australia
and Signapore. Company has grown headcount from 300 to 750. Supported growth while maintaining total
team headcount of 6.
Lead extensive e-discovery projects for multiple lawsuits. Awarded Above and Beyond Award by General
Improved network and system reliability by implementing system and network redundancy
Participated in annual SOX compliance audits
Implementation of IT policy and procedures. Documented SLA’s, information security policy, network
architecture and standard operating procedures for IT operations.
Maintained IT operations budget significantly below industry peers.
Senior Director, Infrastructure and Application Support. Agentrics, Llc.
(formerly GNX/WWRE.) - Alexandria, Virginia (2000 to 2007)
Agentrics is an e-business solution and service provider for the global retail industry. Agentrics solutions help
retailers, manufacturers and their trading partners reduce costs and improve efficiency by streamlining and
automating sourcing and supply chain processes. Agentrics customers include many of the world's largest retailers
and manufacturers. Equity owners of Agentrics include: Ahold, Albertsons, Aeon, Carrefour, CVS, Coles Meyer,
Delhaize, El Corte, Karstadt Quelle, King Fisher, Kroger, Lotte, Metro, PPR, Safeway, Sainsbury, SCA, Sears,
Tesco, and Walgreens.
Comprehensively responsible for Agentrics IT infrastructure, application support and internal IT operations.
Including: establishing IT policy, standards compliance, operating procedures, infrastructure architecture,
telecommunications, disaster recovery, capacity planning, technical vendor relations, IT purchasing and budget
administration and overall responsibility for daily operations. Lead a team of 35, including 5 managers.
Responsible for building and maintaining a highly reliable hosting infrastructure and corporate IT environment
Reduced operating costs by more than 20% annually, as site traffic has increased by 100% annually
Successfully manage day to day operations for 140+ servers across four co-location facilities and four offices
Consistently achieve >99.9% availability for all systems, networks and applications
Exceed all internally and externally published performance service level agreements
Establish and maintain Agentrics corporate IT policy to comply with ISO17799
Agentrics hosting operations successfully attained AICPA Systrust certification in 2003 after successfully passing
Ernst and Young audit
Successfully managed several co-location moves with no service disruptions
Senior Consultant. Oracle Corporation. Advanced Technology Services Group. - Herndon, Virginia
(1999 to 2000)
Oracle Corporation is an enterprise software company that develops, manufactures, markets, distributes and services
database software and infrastructure software, including application server, collaborative software and development
tools that help its customers manage and grow their businesses and operations.
Provided a broad range of consulting services to large worldwide corporations. Architected and implemented Oracle
solutions, while managing customer expectations. Performed in-depth troubleshooting and analysis to resolve
Consistently exceeded targets for billable hours
Architected solutions to improve performance and leverage existing software licensing.
Resolved complex technical issues through extensive troubleshooting
Problem resolutions included: core dump analysis, server configuration, performance diagnostics and tuning.
Senior Consultant, Booz Allen and Hamilton, Rockville, Maryland (1998 to 1999)
Booz Allen and Hamilton is a global strategy and technology consulting firm, providing services to major
international corporations and government clients around the world.
Worked on site at the US Food and Drug Administration’s Center for Biologics Evaluation and Research (CBER).
Installed and configured help desk ticketing system for end user support issues. Installed and used Microsoft SMS to
track inventory and automate package deployment to more than 1000 end users. Defined desktop support practices.
Responsible for operations and upgrades of existing Exchange Server infrastructure.
Successfully met FDA objectives for their internal IT infrastructure.
Deployed and administered Microsoft Systems Management Server for 1,000 + user network.
Served as DBA for MS SQL Server database.
Installed and supported help desk ticketing system with escalation and alerting capabilities.
Developed pilot demonstration of secure messaging for presentation to US Food and Drug Administration
Systems Engineer. Stanley Inc. Alexandria, Virginia (1997 to 1998)
Stanley, Inc. provides information technology (IT) services and solutions to United States defense and federal civilian
government agencies. The Company offers its customers solutions to support their mission-essential needs at any
stage of program, product development or business lifecycle through five service areas: systems engineering,
enterprise integration, operational logistics, business process outsourcing and advanced engineering and technology.
Responsible for onsite implementation, administration, training and documentation of Army War Reserve
Deployment System (AWRDS).
Implementing, supporting, training and troubleshooting Army War Reserve Deployment System
Responsible for application availability and performance for three sites in Europe (Luxembourg, Belgium and
Deployed multiple Windows NT networks in support of database applications
Performed Sybase database administration tasks including: installation, multi-tiered replication implementation,
troubleshooting, performance tuning and custom report generation
Established automated testing program, created more than 100 automated testing scripts
UNIVERSITY OF VIRGINIA, McIntire School of Commerce
Graduate coursework in Management of Information Technology
UNIVERSITY OF MARYLAND, Robert H. Smith School of Business
Bachelor of Science, Logistics and Transportation Management
Charles A. Taff Academic Scholarship Recipient
CLARK DECL. ISO OPP MTN. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH
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