Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 264

RESPONSE in Support re 256 MOTION for Permanent Injunction and Memorandum ; Declaration and Exhibits in Support filed byLouis Vuitton Malletier, S.A.. (Coombs, J.) (Filed on 1/11/2010)

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Case5:07-cv-03952-JW Document264 Filed01/11/10 Page1 of 49 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 J. Andrew Coombs (SBN 123881) andy@coombspc.com Annie S. Wang (SBN 243027) annie@coombspc.com J. Andrew Coombs, A Prof. Corp. 517 East Wilson Avenue, Suite 202 Glendale, California 91206 Telephone: (818) 500-3200 Facsimile: (818) 500-3201 Attorneys for Plaintiff Louis Vuitton Malletier, S.A. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) Louis Vuitton Malletier, S.A., v. Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. C 07 3952 JW (HRLx) REPLY OF PLAINTIFF IN SUPPORT OF ENTRY OF PERMANENT INJUNCTION; DECLARATION AND EXHIBITS IN SUPPORT Date: January 25, 2010 Time: 9:00 a.m. Court: Hon. James Ware Akanoc Solutions, Inc., et al. Defendants. INTRODUCTION Defendants' desperate opposition to the entry of an injunction prohibiting future activity of the illegal use of their servers to infringe Plaintiff Louis Vuitton Malletier S.A.'s ("Plaintiff" or "Louis Vuitton") valuable intellectual properties is evident in: (a) their deliberate misreading of the proposed injunctive language 1 ; (b) their misguided efforts to encourage the Court to disregard the trial record 2 ; and (c) the attempt to argue based on "proffered" evidence which was ruled Perhaps the most astounding is Defendants' extensive and repetitious arguments regarding scienter. Docket No. 257, Opposition, pp. 20:5-20, 21:3-22:24. Paragraph (a) of the proposed injunction restrains and enjoins Defendants from "knowingly" infringing Louis Vuitton's intellectual properties. Docket No. 256, Motion for Entry of Injunction, Exhibit G, p. 111:14-15; see also Docket No. 202-1, Plaintiff's Reply to Objections, p. 6:9-13. Moreover, Defendants enjoy a failsafe so long as specified actions are taken in response to written notice from Louis Vuitton which may take the form of a notice consistent with the DMCA. Id. at p. 7:17-20. 2 1 Rather than address the trial record, Defendants assert that the Court should disregard evidence admitted at trial and forget the testimony heard by the Court, referring to it as "mystery testimony". Docket No. 257, p. 25, fn 24. Defendants' objection to the format in which excerpts from that record were submitted for the Court's convenience and can be overruled as specified in more detail in Louis Vuitton's reply to Defendants' Objections, filed concurrently. -1- Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction Case5:07-cv-03952-JW Document264 Filed01/11/10 Page2 of 49 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 inadmissible by the Court. 3 As a result, a significant part of the Opposition is simply irrelevant to Louis Vuitton's motion for entry of any injunction. Instead of addressing Plaintiff's grounds for entry of an injunction or proposing any language for one, Defendants file a 25-page brief with no less than 24 extensive footnotes about almost everything else. The injunction sought by Louis Vuitton is not extraordinary, imaginary or unexpected. While Defendants argue about irrelevant burdens and responsibilities, nowhere in their opposition do they address the fact their own terms of service contemplate the lion's share of the obligations outlined in the draft proposed injunction. Defendants also do not mention the DMCA requirement for "reasonable implementation" of a policy to terminate recidivist infringing customers. Neither of these points on which Defendants are silent, implicate any of the supposed technological burdens set forth in the Opposition. If a customer failed to pay them, that customer would be terminated. The same should result for a customer who refuses to respect the intellectual property of others in violation of Defendants' own policies. Defendants' feigned ignorance and continued willful blindness to infringement is precisely why this relief is necessary. The need for the injunction is amplified by Defendants' endorsement of illegal activity, now boldly stated in their Opposition that counterfeits and copies are good advertising. Docket No. 257, Opposition, p. 12:9-11. Putting aside Defendants' approval of counterfeiting and piracy that brought about the case in the first case and no doubt influenced the jury in rendering its verdict, Defendants, located here and within the jurisdiction of the Court, cannot throw their hands up and allow that activity to continue. 4 There is no question that Louis Vuitton is damaged by those who steal and distribute fakes in the marketplace as found by the jury and stated in Plaintiff's Defendants Opposition is also improperly based on "proffered" evidence ruled inadmissible by the Court in the form of financial statements of the parent company. Contrast Second Order re Motions in Limine (Docket No. 203) and Docket No. 257, Opposition, pp.11, fn 8, 12:9-11. 3 These arguments stand in marked contrast with Defendant Chen's testimony that counterfeiting is wrong, against the law, and against the policy of Akanoc Solutions. Trial Transcript, August 21, 2009, p. 165:14-25, a courtesy copy of which is attached hereto as Exhibit C to the Coombs Declaration. Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction 4 -2- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page3 of 49 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 moving papers. Defendants have the power to disable, unplug and terminate offending customers but clearly, they will not do so unless ordered by this Court. Much of Defendants' Opposition address topics that have already been rejected by this Court and Magistrate Judge Lloyd as relating to the Stored Communications Act and Wiretap Act, and simply do not apply to this case or these facts. 5 For example, Defendants' vague and overbroad objections are curious when Louis Vuitton has already agreed to provide DMCA type notices under penalty of perjury for both copyright and trademark infringement that require specificity. Furthermore, their arguments of impossibility are contradicted by their prior actions and admissions during trial that they are technologically able to do the things outlined in the injunction. ARGUMENT I. Louis Vuitton Meets and Exceeds the Burden of Proof for Entry of an Injunction, Whether or Not the Court Applies eBay v. MercExchange. A. No Law Imposes Upon A Plaintiff the Burden to Show How Defendants Must Comply With an Injunction. Nowhere in the eBay standard or any other authoritative legal standard is the moving party required to provide a detailed road map or other instruction for a found infringer to comply with injunctive relief. Even Defendants do not cite such a requirement. Docket No. 257, Opposition, p. 10:10-13. None is required and Defendants ignore the fact finder's unanimous decision as to the existence of damage and harm to Plaintiff, Docket No. 235, Verdict, at pp. 7:18-24, 11:10-15, and the continuing infringements concerning some of the same websites at issue from before the trial Discussion re Internet design, parental control techniques, content filtering for words or marks, the separate responsibilities of domain name registrars, routers, rebuilding of websites by Plaintiff's expert for trial purposes of publicly available websites, scienter, and monitoring of the Internet are irrelevant when Louis Vuitton is identifying the domain name and IP Address for Defendants who are then able to ascertain the customer for which the associated IP Address is responsible using their internal systems (CPRO) without having to access any stored or private data. The same problem customers receive multiple notices but are still Defendants' customers. Trial Transcript, August 21, 2009, p. 196:24-197:11, August 25, 2009, p. 30:7-17, courtesy copies are attached hereto as Ex.s C and D to the Coombs Decl. In furtherance of a strategy of distraction and obfuscation, Defendants argue even more unrelated and irrelevant issues, including Iranian and Chinese censorship capabilities. Docket No. 257, Opposition, p.2:13-17. Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction 5 -3- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page4 of 49 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 began. Declarations of J. Andrew Coombs, James A. Lowe and Steve Chen (Docket No.s 249251). Given the infinite possibilities that are available, Louis Vuitton's proposal in fact helps Defendants know exactly what they are supposed to do to accomplish a stop to infringing activity on their servers that they otherwise refuse to address. They are not prevented from doing other things which prevent these same infringing situations from recurring. B. Defendants' Narrow View of "Damage" and "Harm" is Inconsistent with the Record, Law and Practice. A nearly two week long trial was conducted and the jury found that there was harm to Plaintiff and awarded it a substantial sum of statutory damages as a result. Docket No. 235, Verdict, at pp. 7:18-24, 9:1-5, 11:10-15, 13:4-8. The same activities that brought about the case, the trial and now this motion have persisted. Declarations of J. Andrew Coombs, James A. Lowe and Steve Chen (Docket Nos. 249-251). The harm is even more severe as Defendants continue to look the other way despite Plaintiff's efforts and the jury's instructive verdict. Defendants cannot be allowed to take a nonchalant attitude about what they are really in the business of doing, protecting, harboring, and promoting counterfeiters and pirates. Though they disagree with (or more correctly, choose to ignore the record) Defendants do not cite any contradictory authority regarding harm. Goldie's Bookstore, Inc. v. Sup. Ct., 739 F.2d 466 (9th Cir. 1984) was not a copyright or trademark action but instead involved an unlawful detainer judgment by a state court involving an expired lease. Id. at 467. The case states that the District Court's finding was not based on any factual allegations and that therefore "speculative injury does not constitute irreparable injury," Id. at 472, not that "los[t] goodwill and `untold' customers" is speculative injury and does not constitute irreparable injury as a matter of law. Docket No. 257, Opposition, p. 12:6-8. Defendants' misleading statement and reliance on such an inapposite case reflects the overall lack of merit to their opposition. Defendants cite Grokster for the proposition that an injunction should only issue where "essential to protect property rights against injuries otherwise irremediable." Docket No. 257, Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction -4- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page5 of 49 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 Opposition, p. 10:14-16. Given Defendants' refusal to meaningfully address their counterfeiting and piracy issues, including terminating offending customers, despite having a $32.4 Million verdict entered against them, the Court's order enjoining them is therefore essential under Defendants' own reasoning. Apparently no sum of money will deter Defendants from violating Plaintiff's rights necessitating this injunctive relief. Defendants mischaracterize Plaintiff's arguments. Not only is the harm obvious in cases of counterfeits and pirated goods, the civil equivalent to stealing, it is not limited to lost sales. See Docket No. 256, Motion for Entry of Injunction, pp. 6:23-8:19. Louis Vuitton has expended considerable resources to its fight against piracy and counterfeits. In addition to the impairment of exclusivity, its strict control over production, and the proliferation of a network of pirates harbored by Defendants, none of which are trivial, Plaintiff also continues to expend unusually disproportionate resources on websites that are and have in the past despite notices, been hosted by Defendants. Defendants' attempt to place a positive spin on theft, Docket No. 257, Opposition, p. 12:9-11, thus is unsurprising but still unacceptable. C. Continued Harm is Evidenced by Defendants' Refusal to Act Meaningfully Against Any Infringers as Shown by Continued Infringements Even After the Jury's $32.4 M Verdict. The jury has spoken as to the issue of harm and damages but Defendants are not listening. They continue to do business as usual. The "assumption" of future harm Defendants' claim is "unknowable" has already been exhibited by the same activity continuing on the same IP Addresses by no doubt the same customers. This is not a case of past infringement. The problem continues. Declarations of J. Andrew Coombs, James A. Lowe and Steve Chen (Docket No.s 249251). If anything, it is worse that after years of litigation and a trial, Defendants believe they can still operate as they have without having to terminate any repeat offenders. This practice must be addressed by the Court as Defendants refuse to be influenced by the will of the jury alone. Because Defendants are undeterred even in the face of the verdict, it is clear that monetary damages are inadequate. Irreparable harm continues as they refuse to terminate repeat offenders Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction -5- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page6 of 49 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 and allow them to continue selling their illegal wares infringing Plaintiff's rights. The Court must act to tell Defendants that their inaction is unacceptable. D. Defendants' Confuse Hardship With What the Law and Good Business Sense Require. It is no hardship for Defendants to do what other web hosts are able to routinely do. Their incompetence (at best) or nefarious business plan (at worst) is no excuse. If they are unhappy with Louis Vuitton's draft, influenced by Defendants' own Service Agreement, then they should have offered an alternative which achieves the same result. Louis Vuitton has never opposed Defendants offering their own solutions, so long as they are actually implemented and achieve the required result of discontinuing the illegal offers using Defendants' servers and routers. Termination of a repeat infringer is required. The DMCA in the copyright context, specifically requires termination. 17 U.S.C. 512(i)(1)(A). By implication, the fact finder heard testimony of Defendants' procedures for handling abuse complaints and their failure to terminate any repeat offenders and found them liable for contributory trademark and copyright liability under the applicable legal standards. Docket No. 235, Verdict. If a customer failed to pay, they would be terminated because they broke their contract. If the same contract is violated with regard to intellectual property infringement, the same result should follow. The imagined complexities advanced by Defendants are unnecessary to this discussion. They can and do terminate their customers. They just choose not to do so for intellectual property infringement matters as to Louis Vuitton. The Court's Order is required to force Defendants to do what they can and should do. II. The Proposed Draft is Possible, Legal and Reasonable. Defendants can not rewrite or ignore the record. 6 Defendants' claims that "to their knowledge" compliance with injunctive relief is impossible, is hardly authority given an opposite 6 26 27 28 E.g., that the proscriptions designed to prevent wiretapping in the context of criminal investigations do not apply was stated in connection with Louis Vuitton's motion to compel production of evidence of websites, the public access to which is at the heart of Louis Vuitton's claims against Defendants. Defendants, by their own admission are accessing these transmissions for the purpose of routing traffic to the appropriate IP address. Docket No. 257, Opposition, p. 3:14. Just as they make an initial conversion of a queried domain name address into an IP address, Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction -6- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page7 of 49 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 finding by the jury on this exact point. Docket No. 257, Opposition, p. 2:4-5; Docket No. 235, Verdict, p.7:2-14, pp. 10:20-11:4 (e.g., "Did Plaintiff...prove...that Defendants had reasonable means to withdraw its services so that their services could not be used to directly infringe but Defendants continued to provide its services to the customers?" This question was answered in the affirmative for all Defendants.). Additionally, Plaintiff's in-house legal counsel testified that other web hosts appear to have no problem achieving the same results as contemplated by the injunction when he stated that, "For letters sent to U.S. based web hosts," the success rate of compliance is "almost 100%." Trial Transcript from August 19, 2009, pp. 18:14-19:14, a copy of which is attached to the Declaration of J. Andrew Coombs ("Coombs Decl.") at Ex. A. Defendants stand alone in their argument that they are unable to comply with any injunction when, in fact, they are only unwilling to do so. Defendants have at their disposal uncontroverted evidence of the means to disconnect infringing material residing on their servers from being accessed by the public. Their assertions otherwise are disingenuous. 7 Defendants make a business out of being a bulletproof host to infringers. This is not an appropriate ground for denying relief. If Defendants did the things their own policies require as outlined in the proposed injunction, then the Court's involvement would be unnecessary, they would likely not have been sued or would have otherwise prevailed at trial. Because they continue to operate offering the same assistance to known counterfeiters, an injunction is required. III. The DMCA Safe Harbors Do Not Apply in this Case and Is Not Even Applicable in the Trademark Context. The DMCA does not apply in the trademark context. Defendants can not prevent entry of the injunction for trademark infringement based on copyright law. so too is it possible for Defendants, by accessing the IP address, to convert that information back into a domain name. E.g., Defendants dispute Louis Vuitton's language regarding a "permanent stop" to access to infringing material at specified domain names. It should be apparent that Plaintiff is seeking a stop to such activity using Defendants' routing and hosting services. To the extent the Court would prefer to clarify the language of the draft injunction to so provide, Louis Vuitton has no objection. Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction 7 -7- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page8 of 49 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 On the copyright side, Defendants concede they were not eligible for any DMCA safe harbor before they filed their designations with the Copyright Office. Docket No. 257, Opposition, p. 24, fn 23. The jury found that Defendants were not eligible for any DMCA safeharbor even after hearing Defendants' case. Docket No. 235, Verdict, pp. 11:21-12:4. Defendants would have to first qualify for the DMCA safe harbors and they still do not. While filing a designation for receipt of complaints is a requirement, so is expeditious removal of infringing content upon "claimed infringement", also negating Defendants' concern that Louis Vuitton is making the determination, and implementation of a policy for the termination of repeat infringers. 17 U.S.C. 512(c), (i)(1)(A). Defendants' refusal to terminate repeat offenders prevents them from benefiting from any of the limited immunities offered by the DMCA. Even if Defendants did qualify for any safe harbor, and they would be required to do so before any limitations on injunctive relief were in place pursuant to 17 U.S.C. 512(j), the allowable scope of relief is consistent with what Plaintiff seeks. The DMCA endorses the appropriateness of entry of the kind of injunction Plaintiff seeks against Defendants. The Court is specifically allowed to order injunctive relief that accomplishes the following, among other things: "(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network. (ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose." 17 U.S.C. 512(j)(1)(A)(i)-(iii). Accordingly, even were the DMCA applicable, section 512(j)(1(A)(iii) confers broad discretion to order appropriate relief. The proposed injunction is appropriate for the reasons stated, but also because it is Defendants' admitted failure to preserve information or to publish records of the allocation of their IP Addresses and update WHOIS information as testified to by Defendant Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction -8- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page9 of 49 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 Chen which necessitates relief in the form proposed. Trial Transcript, August 20, 2009, pp. 104:20-105:5 (CPRO data deleted), 119:15-120:5 (emails lost), 120:24-121:4 ("not that important" to recover emails); Trial Transcript, August 21, 2009, pp. 201:1-13 (no email records before June of 2007, despite multiple prior notices sent by Louis Vuitton); Trial Transcript, August 25, 2009, pp. 7:18-9:14 (re outdated WHOIS information for Defendant Managed Solutions), 13:3-14:4 (re ARIN allocations), 87:20-89:10 (re outdated WHOIS and ARIN allocation information); see Exhibits A-D to Coombs Declaration. They should not now be able to use their own irresponsibility in preserving data to promote further irresponsibility. The relief authorized by 512(j)(1)(A)(iii) for the Court to order such other relief as appropriate renders these restrictions largely moot in this case. CONCLUSION For the additional foregoing reasons, Plaintiff respectfully requests that the Proposed Injunction lodged with the Court be entered without further delay. Dated: January 11, 2010 J. Andrew Coombs, A Professional Corp. ____/s/ J. Andrew Coombs___________________ By: J. Andrew Coombs Annie S. Wang Attorneys for Plaintiff Louis Vuitton Malletier, S.A. Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction -9- Case5:07-cv-03952-JW Document264 Filed01/11/10 Page10 of 49 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 DECLARATION OF J. ANDREW COOMBS I, J. Andrew Coombs, declare as follows: 1. I am an attorney at law, duly admitted to practice before the Courts of the State of California and the United States District Court for the Northern District of California. I am counsel of record for Plaintiff Louis Vuitton Malletier, S.A. ("Louis Vuitton") in an action styled Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., et al., and, except as otherwise expressly noted to the contrary, I have personal knowledge of the following facts. 2. Attached Exhibit A is a true and accurate copy of portions of Volume 2 of the certified court reporter's transcript from the Trial in this matter from August 19, 2009, of the trial testimony of Plaintiff's witness Mr. Nikolay Livadkin. 3. Attached Exhibit B is a true and accurate copy of portions of Volume 3 of the certified court reporter's transcript from the Trial in this matter from August 20, 2009, of the deposition reading of Defendant Steve Chen. 4. Attached Exhibit C is a true and accurate copy of portions of Volume 4 of the certified court reporter's transcript from the Trial in this matter from August 21, 2009, of the trial testimony of Defendant Steve Chen. 5. Attached Exhibit D is a true and accurate copy of portions of Volumes 8 and 9 of the certified court reporter's transcript from the Trial in this matter from August 25, 2009, of the trial testimony of Defendant Steve Chen and the trial testimony of Defendants' employee Mr. Andrew Cheng. I declare under penalty of perjury that the foregoing is true and correct and this declaration was executed the 11th day of January, 2010, at Glendale, California. _______/s/ J. Andrew Coombs________ J. ANDREW COOMBS Louis Vuitton v. Akanoc, et al.: Reply in Support of Motion for Entry of Permanent Injunction - 10 - Case5:07-cv-03952-JW Document264 Filed01/11/10 Page11 of 49 EXHIBIT A Case5:07-cv-03952-JW Document264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __ PLAINTIFF, V. LOUIS VUITTON MALLETIER , S .A. , Filed01/11/10 Page12 of 49 I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) C -07 -03952 -JW A U G U S T 19, 2009 VOLUME 2 P A G E S 1 - 230 THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206 FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) 24 25 OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1 Exhibit A, Page 11 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 ALSO PRESENT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filed01/11/10 Page13 of 49 A P P E A R A N C E S: (CONT' D) LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538 2 Exhibit A, Page 12 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 3 4 5 6 7 8 NIKOLAY LIVADKIN Filed01/11/10 Page14 of 49 INDEX OF PROCEEDINGS DIRECT EXAMINATION P. 4 ( RESUMED) C R O S S-EXAMINATION P . 1 0 3 REDIRECT EXAMINATION P . 173 RECROSS -EXAMINATION P. 1 7 9 FURTHER REDIRECT P. 1 8 2 D E P O S I T I O N R E A D O F J U L I A N A L U K P. 186 INDEX OF EXHIBITS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 Exhibit A, Page 13 F O R T H E PLAINTIFF 'S: 75 .1 MARKED ADMITTED 29 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 M R. LOWE: Filed01/11/10 Page15 of 49 YOUR HONOR, I THINK THAT COUNSEL IS TRYING TO MOVE THIS A L O N G, BUT I OBJECT AS LEADING. T H E COURT: BY MR . C O O M B S: Q A Q A Q DID Y O U SEND THIS LETTER ? YES . AND TO WHOM DID Y O U SEND IT ? I SENT IT TO ABUSE @A K A N O C.C O M. AND WHERE D I D Y O U GET T H E ADDRESS OF LEADING . ABUSE @AKANOC.C O M? A THIS ADDRESS I GOT FROM THE IP ADDRESS WHO IS INFORMATION . Q AND T H E L E T T E R SEEMS TO BE INFORMAL, A N D I CAN THINK IT FINISHES UNDER PENALTY OF PERJURY. Y O U EXPLAIN T H E F O R M A T OF THIS L E T T E R? A THIS L E T T E R IS FOLLOWING T H E F O R M A T REQUIRED BY T H E DIGITAL MILLENNIUM COPYRIGHT A C T. Q AND THIS IS A S T A N D A R D FORM IN CONNECTION WITH CLAIMS WHETHER COPYRIGHT O R TRADEMARK? A WELL, THIS I S REQUIRED B Y T H E DIGITAL I WOULD REFER TO IT AS MILLENNIUM COPYRIGHT A C T. DN CA IF YOU D O N'T MIND. S O THIS FORMAT I S REQUIRED SPECIFICALLY F O R CORPORATE -- I'M SORRY -- F O R T H E NOTIFICATION 18 Exhibit A, Page 14 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 OF COPYRIGHT I NFRINGEMENTS . Filed01/11/10 Page16 of 49 HOWEVER , I N P R A C T I C E I T'S ALSO USED F O R THE IDENTIFICATION O F TRADEMARK IDENTIFICATIONS . Q AND APPROXIMATELY HOW MANY OF THESE LETTERS G E T SENT O U T O N A MONTHLY BASIS? A Q A HUNDRED PLUS. AND C A N Y O U ESTIMATE FOR US T H E RATE OF RESPONSE THAT YOU RECEIVED F O R T H E S E LETTERS IN TERMS OF SUCCESSFULLY R E M O V I N G T H E OFFERING THAT ARE THE SUBJECT O F THE LETTERS? A FOR LETTERS SENT T O U .S. BASED W E B H O S T S THIS SOMETIMES IT DOESN 'T RATE IS ALMOST 10 0 PERCENT . WORK FOR T H E F I R S T - - A T T H E FIRST ATTEMPT, BUT IT USUALLY WORKS WITH A FOLLOW-U P LETTER. Q AND DO Y O U HAVE EXPERIENCE TRANSMITTING SIMILAR DEMANDS T O WHOLESALERS O F INTERNET CAPACITY SUCH AS DEFENDANTS C L A I M T O B E HERE ? A I HAVE INDEED EXPERIENCE WITH NOTIFYING COMPETITORS TO DEFENDANTS, A COMPANY THAT H A S Q U I T E SIMILAR ACTIVITY. Q AND DO Y O U HAVE A SIMILAR R E S P O N S E T O T H O S E A S Y O U HAVE H A D WITH DEFENDANTS, OR IS IT MORE GENERAL CONSISTENT PRACTICE THAT YOU HAVE HAD WITH DEFENDANTS? A WELL, IN THE BEGINNING W E HAVE H A D TROUBLE 19 Exhibit A, Page 15 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 Filed01/11/10 Page17 of 49 Exhibit A, Page 16 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page18 of 49 EXHIBIT B Case5:07-cv-03952-JW Document264 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 AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __ PLAINTIFF, V. LOUIS VUITTON MALLETIER , S .A. , Filed01/11/10 Page19 of 49 I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) C -07 -03952 -JW A U G U S T 20, 2009 VOLUME 3 P A G E S 1 - 267 THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206 FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1 Exhibit B, Page 17 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 ALSO PRESENT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filed01/11/10 Page20 of 49 A P P E A R A N C E S: (CONT' D) LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538 2 Exhibit B, Page 18 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 3 4 5 6 MICHAEL WILSON 7 8 9 ROBERT HOLMES Filed01/11/10 Page21 of 49 INDEX OF PROCEEDINGS D I R E C T EXAMINATION P. 11 C R O S S-EXAMINATION P . 3 8 REDIRECT EXAMINATION P . 8 4 D E P O S I T I O N R E A D O F S T E V E N C H E N P. 87 D I R E C T EXAMINATION P. 167 C R O S S-EXAMINATION P . 1 9 6 REDIRECT EXAMINATION P . 253 RECROSS -EXAMINATION P. 2 5 9 INDEX OF EXHIBITS 10 I D E N T. 11 12 13 14 15 16 17 18 19 97 .2, 1 0 9 4 9 1 20 21 22 23 24 25 3 Exhibit B, Page 19 EVIDENCE FOR THE PLAINTIFF : 65 , 8 1, 116 , 1 2 8, 1 4 1, 173 , 1 8 5, 1 9 5, 210 , 5 8 4, 5 8 6, 588 & 590 94 , 9 5.3 , 9 5.4 , 9 5.5 , 9 8.3 , 9 9.3 , 99 .4, 99 .5, 1 6 9, 160 , 1 6 0. 1, 160 .2, 1 6 1, 162 .1, 1 6 2.2 , 1 6 3, 1 6 4, 164 .1, 6 1 4.2 , 1 6 5, 1 6 6, 166 .1, 1 6 6.2 , 2 1 2, 2 1 3.2 , 2 1 3. 3, 213 .4, 2 8 6, 287 , 2 8 7. 1, 2 8 7.2 , 3 5 3, 3 5 3.1 , 3 5 3. 2, 356 , 3 5 7, 3 5 7.1 , 3 6 0, 3 6 1, 361 .1, 3 6 1.2 , 4 0 2, 4 0 3, 403 .1, 4 0 3.2 , 4 0 4, 4 0 5, 405 .1, 4 0 5.2 , 4 0 6, 4 0 6.1 A N D 4 0 6. 2 25 31 35 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 AKANOC SOLUTIONS? A US . Q AND ARIN -- I'M SORRY . Filed01/11/10 Page22 of 49 YES , T H E S E WILL BE IP ADDRESSES A S S I G N E D T O AKANOC STILL OWNS AWFUL T H E N A M E S O R A L L OF THE IP ADDRESSES F I R S T ASSIGNED TO IT ? A Q YES , THAT 'S CORRECT. HAS IT REASSIGNED OR SUBDELEGATED A N Y O F T H O S E IP ADDRESSES? A Q REASSIGNED BEING - - BEING WHAT ? ASSIGNED IT TO THE CUSTOMERS, RESELLERS , ANYONE ELSE ? A Q A Q YES , THAT 'S WHAT W E D O E V E R Y D A Y. YOU DO -- I' M S O R R Y? THAT'S WHAT WE DO EVERY DAY . AND A R E T H O S E REFLECTED IN THE CPRO DATABASE THAT WE TALKED WITH EARLIER? A IT' S N O T ONLY CPRO , B U T ALSO P U B L I C. Y O U CAN S E A R C H THAT IN T H E P U B L I C RECORDS. Q LET 'S BACK U P F O R A M O M E N T. T H E CPR O D A T A B A S E WILL REFLECT A N ASSIGNMENT BY A K A N O C T O O N E OF ITS CUSTOMERS O F A N I P ADDRESS THAT WAS ASSIGNED TO IT ; IS THAT CORRECT? A IF IT' S A LIVE IP, WE C A N S E A R C H IT. I F I T'S A DEAD I P THEN IT 'S -- ONCE I T'S TAKEN O U T FROM 104 Exhibit B, Page 20 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 Filed01/11/10 Page23 of 49 THAT, THEN CPR O WILL N O T SHOW IT . Q A Q A Q A SO IT DOESN' T SHOW HISTORICAL DATA? YES . IT' S DELETED ? YES . WHO HANDLES THE ASSIGNMENT OF IP ADDRESSES ? AGAIN, IT 'S PRETTY MUCH AUTOMATION. L E T'S S A Y T H E C U S T O M E R N E E D S FOUR EXTRA IP 'S, E I T H E R M Y S E L F, WILL LONE, PATRICK, WE CAN A L L G O INTO A SPECIFIC INTER FACE A N D WE TAKE O U T FROM T H E AVAILABLE POOL A N D A T T A C H IT TO SPECIFIC MAIN I P'S A N D W E S U B M I T TO T H E PROCESS . AND THEN W E UPDATE THAT INFORMATION INTO T H E R O U T E R TO MAKE THAT ROUTING. AND WHEN CUSTOMER C A N C E L T H E SERVICE, OR FOR WHATEVER R E A S O N W E NEED TO TAKE IT OUT FROM THAT PARTICULAR ROUTE , A N D THEN WE C A N U S E THE SAME INTERFACE . WE CAN GO IN A N D S U B M I T T H E REQUEST A N D THEN T H E TECHNICIAN WILL GO TO THAT ROUTER A N D THEN RE ROUTE IT. Q A Q THAT R O U T E R IS OWNED AND CONTROLLED BY AKANOC ? THAT'S CORRECT. WHAT PERCENTAGE OF T H E S E R V E R CAPACITY THAT Y O U HAVE BEEN TALKING A B O U T I S DEDICATED TO WEB SITE HOSTING? A I HAVE NO IDEA. I D O N'T KNOW THE PERCENTAGE 105 Exhibit B, Page 21 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 Q Filed01/11/10 Page24 of 49 NOW , I N CONNECTION WITH THE EXHIBIT 26 REPORT , WHAT HAPPENED AFTER YOU SENT THIS E -MAIL? A IT' S UNPLUGGED. S O I F I T'S UNPLUGGED, WE WAKE I H I M U P. I MEAN, HE WILL COME BACK TO US. REMEMBER THAT HE CAME BACK TO US . Q A Q A Q AND HE CAME BACK T O Y O U BY E-MAIL ? YEAH. AND WHAT DID HE S A Y? I FORGOT. TO YOUR KNOWLEDGE HAS T H E S E R V E R BEEN UNPLUGGED? A I FORGOT, BUT A T LEAST W E MUST HAVE DONE SOMETHING T O I T BECAUSE WHEN I PERSONALLY STEP IN IT NEEDS TO BE RESOLVED . Q IT' S M Y UNDERSTANDING THAT THERE WAS A POINT ON WHICH E- MAIL TRAFFIC S T O R E D O N T H E SERVER W A S LOST; IS THAT CORRECT? A Q A YES . AND WHEN DID THAT OCCUR? SOMEWHERE LATE IN 200 6 T O M I D -- I R E M E M B E R, JUNE, JUNE 15T H W E STARTED A NEW S E R V E R S O JUNE 15 TH OF 200 7. Q WHEN Y O U SAY Y O U STARTED A NEW S E R V E R, YOU OPENED U P A NEW BOX ESSENTIALLY? A YES , THAT 'S CORRECT. 119 Exhibit B, Page 22 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 Q Filed01/11/10 Page25 of 49 AND W A S T H E R E A N Y BACKUP OR OTHER PLACE IN WHICH E- MAILS CAN WERE LOCATED O N THAT S E R V E R WERE S T O R E D A N D WERE T H E R E A N Y DUPLICATE C O P I E S, FOR EXAMPLE? A Q NO. AND WHEN I R E C E I V E D A N E -MAIL TYPICALLY THEY MAY BE KEPT ON THE DOES I T WORK DOWNLOADED FROM A SERVE R. SERVER BUT ALSO O N THE WORK STATION . THAT WAY AT A K A N O C? A NO. Y O U' RE ON THE SO -C A L L E D P O P3 SO WE 'RE EVERYTHING DOWNLOADED T O YOUR WORK STATION. ON IMAP SO THAT'S EVERYTHING KEPT O N T H E SERVER SIDE. Q AND THAT APPLIES W O U L D BOTH INCOMING A N D OUTGOING E- MAILS? A Q A Q YES . AND IN B O X A N D OUT B O X? YES . AND IS THERE A N Y W A Y IN WHICH E-M A I L S THAT WERE LOCATED O N THE SERVER CAN B E RESTORED O R RECOVERED? A I BELIEVE SO . WE DON 'T EVEN HAVE T H E H A R D W A R E ANYMORE. Q WAS THERE AN E F F O R T MADE AT T H E TIME TO RECOVER E-M A I L S THAT WERE STORED ON THAT SERVER ? 120 Exhibit B, Page 23 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 A Filed01/11/10 Page26 of 49 PROBABLY SO BUT TO US WE , I MEAN, IT 'S NOT I MEAN , W E JUST WANT TO KEEP SO TO A CERTAIN P O I N T T H E TECHNICIAN THAT IMPORTANT . THINGS G O I N G. JUST DECIDED L E T' S MAKE A NEW O N E. Q I WANT TO MARK AS EXHIBIT 1 A SEVEN- PAGE E- MAIL W H I C H I N C L U D E S A N E -MAIL AN ATTACHMENT, I BELIEVE, DATED OCTOBER 30T H, 200 6. Y O U HAVE SEEN IT BEFORE ? A Q A Q I HAVE NO -NO RECOLLECTION ? YEAH, NO IMPRESSIONS WHATSOEVER. AT THE T O P O F T H E PAGE Y O U' LL SEE AN E- MAIL D O Y O U SEE L E T M E KNOW IF ADDRESS THAT SAYS ABUSE @AKANOC.C O M. THAT? A Q A Q YES . AND IS THAT THE ABUSE MAILBOX AT AKANOC ? YES , I T S H O U L D BE. AND Y O U HAVE NO R E A S O N T O Q U E S T I O N O N E WAY OR T H E O T H E R WHETHER OR N O T THIS E- MAIL W A S RECEIVED ON OR ABOUT T H E DATE IT BEARS ? A Q YEAH. I STAND CORRECTED. I T'S ACTUALLY DATED JANUARY 17T H, 200 7 A N D IT HAS T H E WORD REMINDER . DO Y O U S E E THAT? A YES . 121 Exhibit B, Page 24 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 Filed01/11/10 Page27 of 49 Exhibit B, Page 25 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page28 of 49 EXHIBIT C Case5:07-cv-03952-JW Document264 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 AKANOC SOLUTIONS, INC ., ET AL. , DEFENDANTS . ___ ___ ___ ___ ___ ___ ___ __ PLAINTIFF, V. LOUIS VUITTON MALLETIER , S .A. , Filed01/11/10 Page29 of 49 I N THE UNITED STATES DISTRICT COURT FOR T H E N O R T H E R N D I S T R I C T O F CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) C -07 -03952 -JW A U G U S T 21, 2009 VOLUME 4 P A G E S 1 - 208 THE PROCEEDINGS WERE HELD BEFORE THE HONORABLE U N I T E D STATES DISTRICT JUDGE JAMES WARE A P P E A R A N C E S: FOR THE PLAINTIFF : J. ANDREW COOMBS BY: J . A N D R E W COOMBS ANNIE S . WANG 517 E. W I L S O N A V E N U E SUITE 202 GLENDALE, CALIFORNIA 91206 FOR THE DEFENDANTS: GAUNTLETT & ASSOCIATES BY: J A M E S A . LOWE CHRISTOPHER G . LAI 18400 VON K A R M A N IRVINE , CALIFORNIA 92612 (APPEARANCES CONTINUED O N T H E NEXT PAGE .) OFFICIAL COURT REPORTER : I R E N E RODRIGUEZ, C S R, CRR CERTIFICATE NUMBER 8074 1 Exhibit C, Page 26 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 ALSO PRESENT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filed01/11/10 Page30 of 49 A P P E A R A N C E S: (CONT' D) LAW OFFICES O F J . ANDREW COOMBS B Y: RUTH ADLER, PARALEGAL 5 1 7 E. WILSON AVENUE SUITE 202 GLENDALE, CALIFORNIA 91206 LVMH FASHION GROUP B Y: NIKOLAY LIVADKIN 2 R U E D U PONT -NEUF 75001 P A R I S, FRANCE AKANOC SOLUTIONS , I N C. B Y: STEVE CHEN, PRESIDENT 45535 NORTH PORT LOOP EAST FREMONT , CALIFORNIA 94538 2 Exhibit C, Page 27 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 1 2 FOR THE DEFENDANTS: 3 4 STEVEN CHEN 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filed01/11/10 Page31 of 49 INDEX OF PROCEEDINGS DIRECT EXAMINATION P. 5 C R O S S-EXAMINATION P . 1 6 5 3 Exhibit C, Page 28 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 BY MR . C O O M B S: Q Filed01/11/10 Page32 of 49 SO I' LL SUSTAIN T H E OBJECTION . H I S MAIN CONCERN IS N O T T O B E T H E SOURCE OF C U R I N G T H E PROBLEM. HE 'S NOT BEEN CHALLENGED H E'S BEING WITH NOT C O M I N G U P WITH A SOLUTION. CHALLENGED ON THE C L A I M S THAT A R E B E I N G MADE . BY MR . LOWE : Q MR. CHEN, DO Y O U T H I N K THAT THERE 'S ANYTHING THAT YOU C A N D O B E Y O N D WHAT Y O U HAVE BEEN DOING THAT WOULD STOP T H E INFRINGEMENT OF PRODUCTS THAT LOUIS VUITTON IS COMPLAINING ABOUT? A NO, WE H A D N O W A Y OF KNOWING WHEN , W H E R E, HOW A DOMAIN NAME WOULD GET INTO OUR NETWORK. Q THANK YOU . I HAVE NO FURTHER QUESTIONS AT THIS TIME , YOUR HONOR. CROSS- EXAMINATION LET ME S E E, MR. CHEN, IF WE C A N A G R E E O N A COUNTERFEITING I S W R O N G; RIGHT? COUPLE O F THINGS. A Q A Q YES . AND IT 'S AGAINST T H E LAW ? YES . AND IT 'S AGAINST T H E POLICY OF A K A N O C SOLUTIONS, IS THAT N O T ALSO CORRECT ? A THAT'S CORRECT. 165 Exhibit C, Page 29 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 A Q I HAVE NO IDEA. Filed01/11/10 Page33 of 49 AND WE 'LL P U T U P T H E NEXT O N E THAT C O M E S NEXT FROM MARCH 3, '08 A N D THIS , T O O, IS A -- IS ANOTHER TAKEDOWN N O T I C E - - THAT 'S THE TAKEDOWN N O T I C E REFERRING T O E S T A R B I Z O N 3 -3; IS THAT CORRECT? A Q A Q YES . AND IT 'S TO MR. WANG KIYO; IS THAT CORRECT ? YES . AND IT 'S CONCERNING T H E SAME D O M A I N NAME ESTARBIZ .C O M? A Q A Q YES . AND IT CONCERNS T H E SAME -THIS O N E -I DIDN 'T MEAN T O INTERRUPT. B U T MY ONLY QUESTION IS THAT IT' S T H E SAME I P ADDRESS AS REFLECTED O N THE PREVIOUS EXHIBITS? A Q YES . AND THAT SUGGESTS TO ME AT LEAST THAT THAT W E B SITE WAS IN OPERATION FROM NOVEMBER OF 20 07 AND UNTIL MARCH OF 20 08. CONCLUSION? A CAN Y O U P U T THE LAST? THE FIRST THING I SAID D O YOU HAVE A DIFFERENT IS THAT YOUR S E R V E R HAS BEEN UNPLUGGED . Q SAID. MR. CHEN, I DIDN'T A S K Y O U WHAT T H E E-MAIL I ASKED Y O U WHETHER T H E E S T A R B I Z W A S ON THE 196 Exhibit C, Page 30 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 Filed01/11/10 Page34 of 49 SAME SERVER WITH THE SAME CUSTOMER FROM N O V E M B E R O F 20 07 UNTIL MARCH OF 200 8? A Q YES . NOW , I S M R. WANG KIYO STILL A CUSTOMER OF AKANOC SOLUTIONS? A Q A Q MAYBE. YOU D O N'T KNOW? I D O N' T KNOW . YOU NEVER TOOK ANY A C T I O N T O TERMINATE HIM AS A CUSTOMER? A Q I D O N' T HAVE A REASON TO TERMINATE H I M. SO IN SPITE OF THE LITIGATION AND IN SPITE OF A L L O F T H E DEMANDS THAT A R E G O I N G O N, THIS SITE C A N STAY UP FOR FOUR MONTHS A N D T H E ONLY T H I N G Y O U CAN DO IS U N P L U G T H E SERVER . AND DO Y O U KNOW WHAT HAPPENED TO T H E S E R V E R AFTER HE UNPLUGGED IT ? A AS I PREVIOUSLY SAID, I HAVE N O W A Y OF T H E ONLY T H I N G I C A N B E I N CONTROL OF IS KNOWING. UNPLUG THE SERVER . Q NOW , L E T' S BACK UP F O R A M O M E N T A N D GO BACK T O PAGE 1 O F 1 598 A N D T H E FIVE W E B SITES THAT WERE LISTED I N THE COMPLAINT WHICH YOU INDICATE HERE WAS S E R V E D O N Y O U ON AUGUST 20 TH, 20 07. THAT? A YES . 197 Exhibit C, Page 31 D O Y O U SEE U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 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 Q Filed01/11/10 Page35 of 49 YOU HAVE A S P E C I F I C RECOLLECTION OF E-M A I L S DESPITE THE S E R V E R C R A S H W E H A D TALKED ABOUT EARLIER? A NO, BECAUSE ANYTHING -- THE E- MAIL R E C O R D THAT WE HAVE, T H E E -MAIL LOG THAT WE HAVE I S JUNE 15 TH A N D A F T E R. A N D JUNE 1 5TH , ' 07 AND AFTER EVERYTHING -- AND I DID S E A R C H THAT P E R I O D O F TIME A N D T H E R E I S NOTHING IN IT . Q SO THERE IS NO EVIDENCE, NO E- MAIL TRAFFIC IN PARTICULAR, RELATING TO ANYTHING CONCERNING THESE FIVE WEB SITES B E F O R E JUNE OF 20 07? A Q THAT I S CORRECT . OKAY. SO WHAT IS THERE REGARDING ACTIVITY WHY BETWEEN JUNE O F 2 007 A N D A U G U S T 20T H, 200 7? HAVEN 'T WE SEEN I T? A THE ANALYSIS I WAS DOING I THINK IS BASED ON T H E E V I D E N C E THAT Y O U PROVIDE OF CERTAIN COMPLAINTS COMES IN , A N D I W A S TRYING TO F I G U R E O U T WHAT I S THE I P CHANGE HISTORY BASED O N YOUR COMPLAINT. Q WELL, YOU WERE HERE YESTERDAY WHEN I W A S READING FROM YOUR DEPOSITION TESTIMONY ABOUT ALL O F THE COMPLAINTS THAT LOUIS VUITTON HAD SENT FROM OCTOBER OF 200 6 U N T I L A P R I L O F 2 007 AN D I N R E S P O N S E TO THOSE QUESTIONS Y O U SAID Y O U HAD NO 201 Exhibit C, Page 32 U.S. COURT REPORTERS Case5:07-cv-03952-JW Document264 Filed01/11/10 Page36 of 49 Exhibit C, Page 33 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page37 of 49 EXHIBIT D Case5:07-cv-03952-JW Document264 Filed01/11/10 Page38 of 49 Exhibit D, Page 34 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page39 of 49 Exhibit D, Page 35 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page40 of 49 Exhibit D, Page 36 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page41 of 49 Exhibit D, Page 37 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page42 of 49 Exhibit D, Page 38 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page43 of 49 Exhibit D, Page 39 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page44 of 49 Exhibit D, Page 40 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page45 of 49 Exhibit D, Page 41 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page46 of 49 Exhibit D, Page 42 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page47 of 49 Exhibit D, Page 43 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page48 of 49 Exhibit D, Page 44 Case5:07-cv-03952-JW Document264 Filed01/11/10 Page49 of 49 Exhibit D, Page 45

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