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

Filing 254

Declaration of Mark E. Zuckerberg 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) re 251 filed by Mark Zuckerberg, The Facebook, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(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. 254 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. HOPKINS GUY, III (State Bar No. 124811) hopguy@orrick.com I. NEEL CHATTERJEE (State Bar No. 173985) nchatterjee@orrick.com MONTE COOPER (State Bar No. 196746) mcooper@orrick.com THERESA A. SUTTON (State Bar No. 211857) tsutton@orrick.com YVONNE P. GREER (State Bar No. 214072) ygreer@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION THE FACEBOOK, INC. and MARK ZUCKERBERG, Plaintiffs, v. CONNECTU, INC. (formerly known as CONNECTU, LLC), PACIFIC NORTHWEST SOFTWARE, INC., WINSTON WILLIAMS, WAYNE CHANG, and DAVID GUCWA, Defendants. Case No. 5:07-CV-01389-RS DECLARATION OF MARK E. ZUCKERBERG IN SUPPORT OF PLAINTIFFS' 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) Date: Time: Judge: February 13, 2008 9:30 A.M. Honorable Richard Seeborg OHS West:260361645.1 16069-4 ZUCKERBERG DECLARATION 5:07-CV-01389-RS Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Mark Zuckerberg, declare as follows: 1. I am the Chief Executive Officer and founder of Facebook, Inc., the company that runs the online social network www.facebook.com. I have been integrally involved in the development and operation of Facebook and its website applications from its beginning. I make this declaration in support of Plaintiffs' 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). I make this declaration of my own personal knowledge and, if called as a witness, I could and would testify competently to the truth of the matters set forth herein. 2. 3. By July 1, 2005, Facebook's website had approximately 3 million registered users. Since its launch, use of the www.facebook.com website has been governed by Terms of Use, which have at all times been posted to the website on the Facebook's home page to ensure they are made accessible to everyone upon initial viewing of the site and registration. I have helped draft and reviewed the conditions, and hence I am familiar with the various iterations these Terms of Use have undergone. The "Wayback Machine" (i.e., http://web.archive.org) contains true and accurate copies of the Terms of Use as I recall them. The Terms of Use as archived at the Wayback Machine are business records of Facebook, made by Facebook employees at or near the time they have been archived by the Wayback Machine, from information transmitted by persons at Facebook with knowledge of the Terms of Use, which have been kept in the course of both the Wayback Machine's and Facebook's regularly conducted business activities. 4. To complete the registration process, each user was required to agree to be bound by the Terms of Use. Accordingly, the Terms of Use are presented to the user on the registration page. As further described in paragraphs 4-6 and Exhibits A-C hereto, the Terms of Use conditioned an individual's access to the site upon the user's agreement (a) not to use the site for commercial endeavors, (b) to refrain from the "harvesting" of email addresses and other profile information of registered users, and (c) not to use information for the solicitation (i.e., "spamming") of Facebook members. While the Terms of Use underwent minor changes over time, these provisions never changed. OHS West:260361645.1 16069-4 ZUCKERBERG DECLARATION 5:07-CV-01389-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Attached as Exhibit A is a true and correct copy of an exemplar of the Facebook Terms of Use bearing a date of April 11, 2004, which was obtained from http://web.archive.org/web/20040411014053/www.thefacebook.com/terms.php and constitutes the effective Facebook Terms of Use from at least April 11, 2004, to approximately September 2004. 6. Attached as Exhibit B is a true and correct copy of an exemplar of the Facebook Terms of Use bearing a date of September 19, 2004, which was obtained from http://web.archive.org/web/20040919100424/www.thefacebook.com/terms.php and constitutes the effective Facebook Terms of Use from approximately September 2004 to approximately June 28, 2005. 7. Attached as Exhibit C is a true and correct copy of an exemplar of the Facebook Terms of Use bearing a date July 19, 2005, which was obtained from http://web.archive.org/web/20050719012523/www.thefacebook.com/terms.php and constitutes the effective Facebook Terms of Use from approximately June 28, 2005 through at least August 2005. 8. At all times between February 4, 2004 and August 2005, the Facebook Privacy Policy stated that "Email addresses will never be sold to anyone, and they will not be used for spam or any other purpose outside of the site itself." This provision is shown in the exemplars of Facebook's Privacy Policy, obtained from http://web.archive.org/web/20040613184140/www.thefacebook.com/policy.php and http://web.archive.org/web/20050624002804/www.thefacebook.com/policy.php. True and correct copies are attached as Exhibits D and E, respectively. 9. After registering and agreeing to the Terms of Use, a user of the Facebook computer system was permitted to communicate electronically with other Facebook members and have access to view the personal data of other users within his or her particular college network (i.e., other students and alumni). 10. Neither Facebook nor I have ever given anyone affiliated with ConnectU, Pacific Northwest Software or any other defendant in this litigation permission to access the Facebook OHS West:260361645.1 16069-4 -2- ZUCKERBERG DECLARATION 5:07-CV-01389-RS

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