Digital Envoy Inc., v. Google Inc.,

Filing 109

Declaration of Robert Friedman in Support of 107 Memorandum in Opposition, to Google, Inc.'s Second Motion for Summary Judgment filed byDigital Envoy,Inc.,. (Related document(s)107) (Burton, Kendall) (Filed on 3/9/2005)

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Digital Envoy Inc., v. Google Inc., Doc. 109 Case 5:04-cv-01497-RS Document 109 Filed 03/09/2005 Page 1 of 3 1 P. CRAIG CARDON, Cal. Bar No. 168646 BRIAN R. BLACKMAN, Cal. Bar No. 196996 2 KENDALL M. BURTON, Cal. Bar No. 228720 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 3 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4106 4 Telephone: 415-434-9100 Facsimile: 415-434-3947 5 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) 6 LUKE ANDERSON (Admitted Pro Hac Vice) MCGUIRE WOODS, L.L.P. 7 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 8 Telephone: 404.443.5500 Facsimile: 404.443.5751 9 Attorneys for DIGITAL ENVOY, INC. 10 11 12 13 14 DIGITAL ENVOY, INC., 15 16 v. Plaintiff/Counterdefendant, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS DECLARATION OF ROBERT FRIEDMAN IN SUPPORT OF DIGITAL ENVOY, INC.'S OPPOSITION TO GOOGLE, INC.'S SECOND MOTION FOR SUMMARY JUDGMENT Date: Time: Courtroom: March 30, 2005 9:30 a.m. 4, 5th Floor 17 GOOGLE, INC., 18 19 20 21 22 23 24 25 26 27 28 W02-SF:5BK\61446864.1 Defendant/Counterclaimant. The Honorable Richard Seeborg DECLARATION OF ROBERT FRIEDMAN Case 5:04-cv-01497-RS Document 109 Filed 03/09/2005 Page 2 of 3 1 2 I, Robert Friedman, hereby declare: 1. I am an officer of Digital Envoy, Inc. I have personal knowledge of the facts 3 attested to in this declaration and if called to testify at trial I would do so competently. 4 2. Digital Envoy's licensing program allows is to be compensated in exchange for the 5 portion of the market it give up, and each licensing agreement it enters into reflects this concept. 6 If a licensee of Digital Envoy distributes Digital Envoy's licensed information to a third party, this 7 takes away a business opportunity from Digital Envoy. Digital Envoy generates revenue 8 exclusively through licensing its technology. 9 3. Digital Envoy limits and controls access to its information through the use of 10 standardized licensing agreements. Particularly, sections 3.1 and 7.2 of the agreement. This 11 standard agreement was used in the drafting of the Google license agreement. What changes were 12 made to that licensing agreement did not allow Google to geo-locate users on third party sites. 13 4. The interpretation of the licensing agreement advanced by Google would 14 essentially mean that Digital Envoy gave away all of the rights to its information for $3,000 per 15 month. 16 5. Google's Adwords program does not share Digital Envoy's information with third 17 party sites. Only Google receives revenue from the Adwords program. The Adwords program 18 does not violate the licensing agreement. The Adwords program does not take away a potential 19 customer from Digital Envoy. 20 6. Adsense is different from Adwords in that in Adsense, a user is not "searching", but 21 is browsing a third party site. 22 7. The protections found in Digital Envoy's licensing agreements prevent the licensee 23 from acquiring a new and distinct line of business and use and using the technology in that 24 business without an expansion of the license. 25 8. Digital Envoy had no knowledge Google was misusing its data until Google 26 confirmed as much on February 6, 2004. 27 28 -1W02-SF:5BK\61446864.1 9. Digital Envoy's database coverage of internet IP addresses is 99.99% complete. DECLARATION OF ROBERT FRIEDMAN Case 5:04-cv-01497-RS Document 109 Filed 03/09/2005 Page 3 of 3 1 I declare that the above stated facts are true under penalty of perjury under the laws of the 2 United States of America. 3 4 Executed this 9th day of March at Norcross, Georgia. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2W02-SF:5BK\61446864.1 /s/ Robert Friedman Robert Friedman DECLARATION OF ROBERT FRIEDMAN

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