The Facebook, Inc. v. Connectu, Inc et al

Filing 252

Declaration of Monte M.F. Cooper in Support of Plaintiff's Motion for Partial Summary Judgment re Defendants' Liability Pursuant to California Penal Code Section 502(C) and 15 U.S.C. 7704(A)(1) and 15 U.S.C. 7704(B)(1) #251 filed by Mark Zuckerberg, The Facebook, Inc.. (Attachments: #1 Exhibit 1 - Notice, #2 Exhibit 1A, #3 Exhibit 2 - Notice, #4 Exhibit 3, #5 Exhibit 4 - Notice, #6 Exhibit 5, #7 Exhibit 6 and 7 - Notice, #8 Exhibit 8, #9 Exhibit 9.1, #10 Exhibit 9.2, #11 Exhibit 9.3, #12 Exhibit 9.4, #13 Exhibit 9.5, #14 Exhibit 9.6, #15 Exhibit 9.7, #16 Exhibit 10, 11, and 12 - Notice, #17 Exhibit 13, #18 Exhibit 14, #19 Exhibit 15, #20 Exhibit 16, #21 Exhibit 17, #22 Exhibit 18, #23 Exhibit 19, #24 Exhibit 20, #25 Exhibit 21, #26 Exhibit 22, #27 Exhibit 23, #28 Exhibit 24, #29 Exhibit 25, #30 Exhibit 26, #31 Exhibit 27, #32 Exhibit 28-31 - Notice, #33 Exhibit 31A, #34 Exhibit 32-34 Notice, #35 Exhibit 35.1, #36 Exhibit 35.2, #37 Exhibit 35.3, #38 Exhibit 36-38 Notice, #39 Exhibit 40-43 Notice, #40 Exhibit 44, #41 Exhibit 45-48 Notice, #42 Exhibit 49, #43 Exhibit 50-55 Notice, #44 Exhibit 56, #45 Exhibit 57-59 Notice, #46 Exhibit 60, #47 Exhibit 61 Notice, #48 Exhibit 62, #49 Exhibit 63-64 Notice, #50 Exhibit 65, #51 Exhibit 66)(Related document(s) #251 ) (Chatterjee, I.) (Filed on 1/7/2008) Text modified on 1/8/2008 (bw, COURT STAFF).

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The Facebook, Inc. v. Connectu, LLC et al Doc. 252 Att. 2 EXHIBIT 1A THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 5 BE IT REMEMBERED that, pursuant to I I I 1 I I I 2 Notice of Taking Deposition, and on April 25, 2006, commencing at the hour of 10:13 a.m. thereof, at 3300 Hillview, Palo Alto, California, before me, LAWRENCE PAUL NELSON, CSR No. 12144, duly authorized to administer oaths, there personally appeared MARK ZUCKERBERG, 3 4 5 6 8 9 called as a witness by the Defendants, and who, being first administered an oath, was thereupon examined and testified as hereinafter set forth. 10 THE VIDEOGRAPHER: 13 14 Good morning. This marks the beginning of volume 1, videotape 1 in the deposition of Mark Zuckerberg in the matter of TheFacebook, Inc. versus ConnectU, et al, in Superior Court of the State of California, County of I 1 1 15 16 17 Santa Clara, Case No. 105 CV 047381. Today's date I 1 1 18 is April 25th, 2006, and the time is 10:14 a.m. The location of this deposition is the l9 20 offices of Finnegan, Henderson, Farabow, Garrett Dunner, 3300 Hillview, Palo Alto, California & 21 The deposition was noticed by attorneys for 22 the defendants and the videotape is being produced 24 123 on behalf of the same. The video operator is Marguerite Howell, a 25 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 238 MR. GUY: 2 3 4 5 May call for a legal conclusion but he can testify to his understanding. THE WITNESS: I mean I think that that means in order to access users profiles without breaking the law, BY MR. MOSKO: Q. And do you have an understanding of what 6 7 8 law is referred to in this paragraph? MR. GUY: Calls for a legal conclusion. 9 10 11 Answer if you know. THE WITNESS: The use of the site is You agree to the The terms of use 12 13 governed by the terms of use. terms of use by using the site. I I 14 probably states that you have to sign in and register in order to use the site, that you can't use it commercially or by any other use. BY MR. MOSKO: Q. And do you have any information to support 15 16 17 18 9 the last sentence in that paragraph that says, "During and all relevant times defendants were aware of the policies referred to"? A. Well, by registering for the site there's a link right there that says, "Check this if you have read and agree to the terms of use." So by registering for the site, they have. 2o 21 22 23 I' 24 25 (650) 324-1181 Comp-U-Scripts/GROSSMAN & C O T T E W e b e r & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 Q. And did that box to check exist at all times since TheFacebook has operated? A. Yes, I mean there's also a link to the "terms of service and privacyft' every page of the on site. Q. Paragraph 15 says, "TheFacebook also restrict access to and has always used it best efforts to keep confidential its aggregate customer lists." What does that mean if you know, aggregate customer lists? A. So I believe what they're talking about there is that this site is made in such a way that 13 YOU can get access to a person's profile or search for someone, but it's made explicitly to prohibit 17:31:54 17:31:57 17:32:00 17:32:03 17:32:06 17:32:10 17:32:12 17:32:15 17:32:18 17:32:23 17:32:24 17:32:27 15 you from being able to go through and access everyone's profile or everyone's information. So by that I mean both that you can't see everyone on the site, you can only see the profiles of your friend 16 17 19 and people at your school, and I also mean that you can't go through even to everyone at your school and access all of their information. Facebook will block you from doing that. Q. Has that been true since it began in 20 21 22 24 February of 2004? A. The former is true. The latter is -- has 17:32:28 (650) 324-1181 Comp-U-ScriptsIGROSSMAN & COTTEWWeber & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 241 THE WITNESS: 2 3 4 I really don't understand what that question's asking. BY MR. MOSKO: Q. Do you understand that Facebook has 5 6 accused the defendants in this case of accessing e-mail addresses found on Facebook? A. Yes. Q. When did Facebook first conclude that the 7 8 9 defendants were accessing e-mail addressing on Facebook? A. It first occurred to me that they were doing this when I received an e-mail that was generated automatically by ConnectU, on behalf of someone I knew and the e-mail said that this person had imported all their friends from Facebook to ConnectU using Connect U's social butterfly service SO at that point I went to ConnectU to see what this was and I mean the only way that that could have happened was if they looked through that person's friends and got all their e-mails and then e-mailed all of them. Q. So you said you went to ConnectU, what did 10 1.1 12 3 14 15 16 17 18 19 20 21 I 22 23 24 YOU mean by that? A. Yeah. You went to the web site? Q. And you said when you received an e-mail (650) 324-1181 Comp-U-ScriptsIGROSSMAN & COTTERNVeber & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 242 1 on behalf of someone that you knew, who was that person? A. I don't remember exactly. ago. Q. And what did you do as a result of your This is a while discovery? A. Well, immediately I went to ConnectU and saw what they were doing, and then I modified something on Facebook to block this from working. So - Q . Sorry. Goo ahead. A. So they were running a program that would take someone's users information for Facebook and then log in, and then go through and scrape 15 16 17 18 everyone's e-mail addresses off of Facebook who were that person's friends. So in order to stop that from happening, I just put into TheFacebook code to block that program from loading Facebook pages. Q. When did you first discover - - make this 19 20 discovery? A. I don't know the exact date. Q. Approximately? 21 22 23 24 A. I think it was early 2005, maybe like late January, perhaps. Q. Okay. Paragraph 21 says, "As a result of (650) 324-1181 Comp-U-ScriptsfGROSSMAN & COTTERNeber & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 243 these incidents of unauthorized access and unauthorized appropriations by defendants TheFacebook was damaged." Do you see that? A. Yes. Q. How was Facebook damaged? A. Well, there are a bunch of ways. One is that as an information resource, people need to feel like they have control over what they're putting up. So - - and people are very sensitive about sharing their e-mail address or cell phone because they don't want to get spammed or harassed, and one of the reasons why Facebook -- why people felt comfortable of sharing on Facebook is because they have very good, we have very good privacy control that let people control who they share that information with. But ConnectU in making this program basically made something that was going to go through and find e-mail addresses and spammed all these people. So not only did that effect our users It negatively but it decreases their trust in us. probably encouraged people to like share less information and it was our property that they were using to like spammed people and get them to go to a competing web site with us. A web site that was (650) 324-1 181 Comp-U-ScriptsIGROSSMAN & COTTERNeber & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU MARK ZUCKERBERG APRIL 25,2006 244 1 competing with us. Q. What evidence do you have that it 2 3 4 decreased your users's trust in you? A. I don't know. Q. And what evidence do you have that it had 5 6 an effect on Facebook? A. I mean there were probably - - I would guess but I dont't know, that like people notice when they're getting spammed and that makes them less trustful of it. But the effect it had on Facebook 7 8 9 10 11 12 was largely that like our property had been essentially broken into and was being used to fuel competing web site. And then I had to take along with Dustin or four days of my time to block them from doing this. Because after I originally stopped their program from running, they went back and modified it to make it run again, and then we had to block that and that kept on going on. Q. You're not aware of any users who dropped out of Facebook as a result of this activity, are 22 you? A. Any individual users? Q. Yes. A. I can't point to any specific one but that (650) 324-1181 Comp-U-ScriptsIGROSSMAN & C O T T E W e b e r & Volzing 06APR2513 THE FACE BOOK VS. CONNECTU I MARK ZUCKERBERG APRIL 25,2006 245 1 doesn't mean that there weren't any. Q. Are you aware of any loss of advertising 2 3 4 5 6 dollars that you suffered as a result of this activity? A. It's hard to quantify that because this isn't a short-term thing. If an event likes this 7 8 9 10 happens and our users get spammed then they trust the site less and they use it less, then that could affect us tremendously down the line, even if it doesn't affect it right at that point. Q. Are you aware of any effect whatsoever? 11 12 A. It's immeasurable. How would I know what we'd be doing now if I didn't have to take some I 14 amount of fix this and a bunch of our users hadn't been spammed to go to this other sites. Q. So you're not aware of any advertiser 15 16 17 saying as a result of what the defendants are alleged to have done were not going to buy advertising on your site, are you? A. I don't think it would happen like that. I mean that's not the damage that we're alleging. 18 19 2o 21 22 Q. What damage are you alleging? 23 24 I 25 A. I mean we're saying that because this happened, it like - - it could at some point decrease the value or decrease the people who advertised on (650) 324-1181 Comp-U-Scripts/GROSSMAN & COTTERNVeber & Volzing 06APR25 13

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