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

Filing 270

Declaration of James A. Lowe in Support of 269 MOTION to Dismiss DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 50 AND ALTERNATIVELY FOR NEW TRIAL OR OTHER RELIEF PURSUANT TO RULE 59 filed byAkanoc Solutions, Inc., Steven Chen, Managed Solutions Group, Inc.. (Attachments: # 1 Exhibit 74 to Lowe Decl, # 2 Exhibit 449 to Lowe Decl, # 3 Exhibit 450 to Lowe Decl, # 4 Exhibit 1559 to Lowe Decl, # 5 Exhibit 1598 to Lowe Decl, # 6 Exhibit 1613 to Lowe Decl, # 7 Exhibit 1620 to Lowe Decl, # 8 Exhibit 1621 to Lowe Decl, # 9 Exhibit 1622 to Lowe Decl, # 10 Exhibit 1623 to Lowe Decl, # 11 Exhibit 1624 to Lowe Decl)(Related document(s) 269 ) (Lowe, James) (Filed on 1/19/2010)

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

Doc. 270 Att. 7

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EXHIBIT 1621
Dockets.Justia.com

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Case5:07-cv-03952-JW Document270-8 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

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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

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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 75 .1 29 F O R T H E PLAINTIFF 'S: MARKED ADMITTED

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Case5:07-cv-03952-JW Document270-8 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 . LOWE : Q A Q

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CROSS- EXAMINATION

GOOD AFTERNOON, MR . L I V A D K I N. GOOD AFTERNOON. ISN 'T IT TRUE THAT Y O U D O N O T REQUIRE THAT AN

I S P SEND Y O U A COMMUNICATION IN RESPONSE TO A COMPLAINT O F ALLEGED COPYRIGHT O R TRADEMARK INFRINGEMENT? A Q THAT I NOT REQUIRE ? YOU D O N'T E X P E C T THAT T H E I S P THAT Y O U SEND

THESE NOTICES TO, TO GIVE YOU A RESPONSE NECESSARILY ; I S THAT RIGHT ? A WELL, I E X P E C T THE I S P T O C O M P L Y WITH WHAT I' M

REQUESTING IN THE L E T T E R. Q TO TAKE SOME A C T I O N WITH RESPECT TO THE

COMPLAINT? A USUALLY WHAT IS THAT PRACTICE WHEN A COMPLAINT

IS SENT TO AN ISP , W E RECEIVE AT LEAST AN E- MAIL S A Y I N G THAT O U R NOTIFICATION HAS BEEN RECEIVED. MOST OF T H E T I M E S W E A R E ASSIGNED A T I C K E T, WHICH ALLOWS US TO , I N CASE OF FURTHER DEALINGS WITH THE I S P, TO REFER TO THE PARTICULAR M A T T E R THAT H A S BEEN BROUGHT TO THEIR ATTENTION . Q ARE Y O U S A Y I N G THAT Y O U DO REQUIRE O R Y O U DO

N O T REQUIRE A COMMUNICATION CONFIRMING THAT THE I S P 103

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HOST AND WE WOULD FOCUS ON A MORE DETERRENT ACTION . Q A AND WHAT MIGHT THAT B E? THAT M I G H T B E A CRIMINAL OR CIVIL PROSECUTION

AGAINST THE OPERATOR OF T H E W E B SITE. Q A Q AND IN T H E U N I T E D STATES OR SOMEWHERE ELSE ? IT DEPENDS O N W H E R E H E'S LOCATED. ALL OF T H E W E B SITES THAT Y O U HAVE TESTIFIED

ABOUT IN T H E LAST T W O DAYS HAVE BEEN LOCATED IN CHINA ; I S THAT RIGHT ? A I T H I N K S O. I THINK THAT A L L OF THEM HAVE

BEEN LOCATED I N C H I N A, YES . Q SO AS FAR AS Y O U KNOW BASED ON YOUR

INVESTIGATION ALL OF T H E MANUFACTURING A N D A L L OF T H E S A L E S O C C U R I N C H I N A? A MOST O F THE COUNTERFEIT PRODUCTS INDEED ARE THE SALES -- THESE W E B S I T E S

PRODUCED IN CHINA .

STARTED TO THE U. S. MARKET A N D T H E REASON W H Y T H E S E W E B S I T E S A R E HOSTED HERE IN CALIFORNIA I S BECAUSE THE CHINESE OPERATORS O F THESE WEB SITES REQUIRE HIGH QUALITY INFRASTRUCTURE B A S E D HERE IN T H E U N I T E D S T A T E S TO TARGET AMERICAN CUSTOMERS. THE PROBLEM I S THAT THEIR WEB SITES ARE H O S T E D I N C H I N A I S THAT T H E CONNECTION TIME IS TOO LONG; T H E R E S P O N S E TIME IS T O O LONG ; A N D USUALLY THEIR AMERICAN CUSTOMERS GIVE UP BECAUSE THE W E B 142

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SITE ULTIMATELY D O E S N'T WORK WELL. A N D BY THE W A Y, THIS I S A N A R G U M E N T USED BY DEFENDANTS ON THEIR WEB SITES TO M A R K E T T H E I R PRODUCTS . Q ALL RIGHT . NOW -- SO Y O U A G R E E THAT T H E

MANUFACTURING OF ALL OF THESE COUNTERFEITS THAT Y O U'R E TALKING ABOUT OCCURRED IN CHINA . A R E THE P E O P L E SELLING T H E P R O D U C T S I N CHINA AS F A R A S Y O U KNOW? A AS FAR AS I KNOW T H E SELLER IS LOCATED IN

CHINA A N D T H E CUSTOMERS A R E LOCATED IN T H E U N I T E D STATES. Q ALL RIGHT . WELL, THEY'R E LOCATED A L L OVER T H E

WORLD , AREN 'T THEY? A Q OF COURSE . WELL, NOW , I S N' T I T ALSO TRUE THAT Y O U DON 'T

KNOW THE IDENTITY OF A N Y O F T H E PEOPLE SELLING THESE PRODUCTS THAT YOU HAVE TALKED ABOUT HERE IN THE LAST TWO DAYS ? YOU D O N'T KNOW WHO T H E P E O P L E

A R E THAT A R E B E H I N D ESHOES 99, F O R EXAMPLE ? A WELL, THERE ARE MANY WEB SITES . THERE ARE

MORE THAN 1 00.

SOME OF THEM WE HAVE BEEN

SUCCESSFUL TO IDENTIFY THE OPERATOR A N D SOME OF THEM NOT . Q OFTEN YOU C A N N O T? 143

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YOU OFTEN C A N N O T I D E N T I F Y T H E OPERATOR OF THE

WEB SITE ; I S THAT RIGHT ? A FOR CHINESE OPERATORS , I HAVE TO SAY IT 'S NOT

EASY TO IDENTIFY. Q A WHY IS IT N O T EASY ? IT' S N O T EASY T O - - T H E WEB SITES T A R G E T

AMERICAN CUSTOMERS O R I N MANY CASES ENGLISH SPEAKING CUSTOMERS. SO IF AN INVESTIGATOR

APPROACHES THEM I N ANOTHER LANGUAGE THAN CHINESE, IF A LAWFUL INVESTIGATOR I S USED , F O R EXAMPLE, THE W E B SITE OPERATORS B E C O M E SUSPICIOUS A N D IT' S VERY DIFFICULT T O ESTABLISH A PRETEXT COMMUNICATION WHICH WOULD ALLOW T H E INVESTIGATOR TO IDENTIFY WHO IS B E H I N D T H E WEB SITE. Q DO THE W E B - - D O T H E OPERATORS OF THIEVES WEB

SITES THAT YOU COMPLAIN ABOUT OFTEN GIVE FALSE INFORMATION ABOUT THEIR IDENTITY IN YOUR EXPERIENCE? A WELL, THEY JUST D O N'T PROVIDE IDENTIFICATION

INFORMATION . Q DO YOU G E T F A L S E I N F O R M A T I O N A B O U T T H E

ADDRESSES THAT THEY' RE USING FROM T H E LOCATIONS FROM WHICH THEY OPERATE ? A VERY OFTEN THEY WILL PROVIDE INFORMATION ABOUT 144

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A BOOTH WITHIN T H E LEATHER M A R K E T I N G U A N G Z O U IN CHINA A N D O N THIS M A R K E T T H E R E A R E HUNDREDS OF BOOTHS. Q SO A B O O T H IDENTIFICATION R E A L L Y DOESN' T D O

Y O U A N Y GOOD? A NOT NECESSARILY . AGAIN, Y O U'R E A S K I N G ME TO

RESPOND WITH A GENERAL ANSWER TO HUNDREDS OF PARTICULAR SITUATIONS. Q WELL, DO YOU EVER TAKE A C T I O N AGAINST T H E S E

COUNTERFEITERS IN CHINA ? A Q YES , W E D O. IN FACT, YOU TESTIFIED THAT LOUIS VUITTON HAS

AN O F F I C E I N HONG KONG? A Q YES . AND WHAT SORT O F ACTIONS DO Y O U TAKE THERE IN

ORDER TO STOP THIS C O U N T E R F E I T? A WELL, FIRST OF ALL , W E COOPERATE WITH L O C A L

CUSTOMS BOTH I N MAIN LAND, CHINA AND IN HONG KONG T O ATTEMPT TO STOP T H E COUNTERFEIT GOODS FROM LEAVING THESE TERRITORIES . W E ALSO ORGANIZE SEVERAL RAIDS EVERY MONTHS AGAINST PRODUCTION FACILITIES. A N D WHEN WE

SUCCEED IN IDENTIFYING SPECIFICALLY A WEB SITE OPERATOR , W E T R Y TO GET PROSECUTION IN CHINA . Q DO YOU , I N FACT , PROSECUTE OR FILE L A W S U I T S O R 145

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AND DO Y O U FIND THAT THEY ROUTINELY BRING YOU

LOTS OF RESULTS O F P O T E N T I A L L Y C O U N T E R F E I T PRODUCTS ? A Q YES . ARE THEY IN THE HUNDREDS OR THOUSANDS WHEN Y O U

MAKE A S E A R C H OF LOUIS VUITTON BAGS OR SOMETHING? A WELL, WE WOULD USUALLY - - A S I SAID, WE WOULD

GIVE PRIORITY TO THE W E B S I T E S THAT WE FIND ON THE FIRST TO S E C O N D P A G E S O F RESULTS ON S E A R C H ENGINES . A N Y T H I N G THAT IS B E Y O N D T H E SECOND PAGE USUALLY WE DO NOT LOOK AT. Q A WHY IS THAT? THEY JUST D O N'T BOTHER G O I N G O N T H E FURTHER AND F O R U S I F A COUNTERFEIT OFFER IS N O T

PAGES .

VISIBLE OR HAS L O W VISIBILITY ON T H E I N T E R N E T, THAT MAKES IT LESS OF A PROBLEM . Q ISN 'T IT TRUE Y O U HAVE N O E V I D E N C E O F T H E

PARTNERSHIP BETWEEN THE DEFENDANTS AND THEIR RESELLERS? A Q I HAVE NO INFORMATION ABOUT THAT. ISN 'T IT TRUE THAT Y O U HAVE NO EVIDENCE OF A N Y

PARTNERSHIP BETWEEN ANY OF T H E DEFENDANTS A N D A N Y W E B SITE OR COUNTERFEIT ? A I HAVE NO INFORMATION ABOUT THAT. A S F A R AS 153

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RESELLERS ARE CONCERNED , W E CAN CONDUCT BUSINESS DEALINGS FROM THE FACT THAT R E C E N T L Y RESELLERS STARTED APPEARING ON T H E I P HOST . SO IF DEFENDANTS

AS AN UPSWING PROVIDER HAS DESIGNATED THEIR RESELLERS A S A DOWNSTREAM PROVIDER, IT MEANS F O R U S THAT THERE ARE SOME BUSINESS DEALINGS BETWEEN THEM . Q I'M SORRY . HOW DOES IT SHOW THAT THERE 'S A

BUSINESS DEALING OTHER THAN RENTING SPACE TO T H E RESELLER ? A Q WELL, RENTING S P A C E I S T H E BUSINESS IT IS IN. WELL, IT' S RENTING SPACE A N D A N I P ADDRESS ,

B U T I S T H E R E A N Y OTHER EVIDENCE OF ANY OTHER BUSINESS DEALINGS ? A UNLESS I DON 'T UNDERSTAND WHAT Y O U'R E TELLING

ME , F O R ME RENTING S P A C E T O SOMEONE IS A BUSINESS DEALING. Q MY QUESTION, S I R, DO YOU HAVE ANY EVIDENCE OF

A N Y O T H E R B U S I N E S S DEALING BETWEEN ANY OTHER RESELLER AND ANY OTHER DEFENDANT OTHER THAN RENTING A SERVER AND A N I P ADDRESS AND SOME BANDWIDTH? A I H A V E N'T SEARCHED F O R THEM BECAUSE IT' S N O T

REALLY M Y BUSINESS. Q WELL, THEN Y O U HAVE N O INFORMATION A B O U T THAT ,

NO EVIDENCE ; R I G H T? A YES . 154

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AND DO Y O U KNOW WHAT THE DEFENDANTS AKANOC

SOLUTIONS A N D MANAGED SOLUTIONS, I N C., CHARGE F O R SERVERS AND IP ADDRESSES A N D BANDWIDTH ON A MONTHLY BASIS ? A Q I D O N' T. AND DO Y O U KNOW WHETHER IT' S BETWEEN $5 5 T O

$7 0 T O $ 80 A M O N T H? A Q NO. AND Y O U HAVE NO INFORMATION OR EVIDENCE THAT

T H E DEFENDANTS G E T A N Y PART O F T H E PROFIT FROM ANY SALE OF ANY COUNTERFEIT B A G; ISN 'T THAT TRUE ? A Q NO, I DON 'T. DO YOU HAVE ANY EVIDENCE OF A N Y D I R E C T

CONNECTION WITH A N Y -- BETWEEN A N Y DEFENDANT A N D ANYBODY SELLING COUNTERFEIT PRODUCTS? A Q NO. DO YOU HAVE ANY EVIDENCE THAT ANY DEFENDANT

CREATED ANY W E B SITE THAT IS USED B Y A N Y COUNTERFEITER? A Q NO, I DON 'T. DO YOU HAVE ANY EVIDENCE THAT ANY DEFENDANT

OPERATED OR ADVERTISED OR PROMOTED ANY W E B SITE SELLING COUNTERFEIT PRODUCTS? A Q NO. DO YOU HAVE ANY EVIDENCE THAT ANY OF T H E 155

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DEFENDANTS ADVERTISED A N Y INFRINGING U S E OF THE SERVERS SUCH A S " COME HERE A N D W E'L L HELP Y O U SELL COUNTERFEIT PRODUCTS "? ADVERTISEMENT LIKE THAT ? A Q NO. THANK YOU . DO YOU HAVE ANY EVIDENCE THAT THE HAVE YOU SEEN ANY

DEFENDANTS EVER INSTRUCTED A N Y OUTSIDE OPERATOR OF H O W T O E N G A G E IN THE INFRINGING USE OF I T S SERVERS ? A Q CAN Y O U R E P E A T, P L E A S E. DO YOU HAVE ANY EVIDENCE THAT ANY OF T H E

DEFENDANTS HAVE EVER INSTRUCTED ANY W E B SITE OPERATOR HOW T O USE THEIR SERVERS FOR INFRINGEMENT ? A WELL, I BELIEVE I HAVE CIRCUMSTANTIAL EVIDENCE I D O N' T HAVE DIRECT EVIDENCE. I

OF A L L O F THIS .

HAVE CIRCUMSTANTIAL EVIDENCE, EVEN THE PATTERN OF CONDUCT OF THE DEFENDANTS, THAT' S WHAT I CAN DEDUCT. Q WOULD YOU P L E A S E TAKE A LOOK A T YOUR I WOULD DIRECT YOUR ATTENTION T O PAGE DURING YOUR

DEPOSITION. 15 9.

IN PARTICULAR LINES 18 TO 22.

DEPOSITION ON APRIL 23R D, 200 8 - A Q A Q I'M SORRY . I'M SORRY . 159 ? YES . HAVE Y O U FOUND IT? 156 WHAT PAGE ? 159 .

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Case5:07-cv-03952-JW Document270-8 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 GIVEN ? A Q YES . THANK YOU . A Q YES .

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LINES 18 TO 22 IS WHAT I 'M DIRECTING YOUR

ATTENTION T O. I N THAT DEPOSITION WAS THIS QUESTION ASKED A N D THIS ANSWER G I V E N: "WHAT EVIDENCE DOES

LOUIS VUITTON HAVE THAT ANY O F THE DEFENDANTS ADVERTISED AN INFRINGING U S E OF ITS SERVERS OR INSTRUCTED ANY W E B SITE OPERATORS H O W TO ENGAGE IN ANY INFRINGING USE O F ITS SERVER ? " ANSWER : I D O N' T T H I N K W E HAVE A N Y."

WAS THAT QUESTION ASKED AND THAT ANSWER

ISN 'T IT TRUE THAT Y O U HAVE NO

EVIDENCE THAT THE DEFENDANTS HAD A N Y A F F I R M A T I V E INTENT THAT THEIR INTERNET HOSTING SERVICES WERE USED TO -- WOULD BE USED T O I N F R I N G E A N Y RIGHTS OF LOUIS VUITTON? A Q NO. NO YOU D O N'T HAVE ANY EVIDENCE ? IS THAT WHAT

Y O U'R E SAYING? A Q YES . THANK YOU . ISN 'T IT TRUE THAT Y O U HAVE NO

EVIDENCE THAT THE DEFENDANTS RECEIVED ANY MONEY FROM THE SALE OF INFRINGING P R O D U C T S THAT M A Y HAVE 157

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BEEN HOSTED ON THEIR SERVERS? A Q NO, I DON 'T. ISN 'T IT TRUE THAT Y O U HAVE NO EVIDENCE THAT

T H E DEFENDANTS RECEIVED A N Y COMMISSION OR PERCENTAGE OF SALES OR ANY EXTRA MONEY , E X C E P T FOR THE HOSTING FEE FROM ANY WEB SITE SELLING INFRINGING PRODUCTS? A Q I D O N' T HAVE SUCH EVIDENCE. ISN 'T IT TRUE THAT Y O U HAVE NO EVIDENCE THAT

T H E DEFENDANTS , A N Y OF THEM, INTENTIONALLY INDUCED OR C A U S E D A N Y WEB SITE OPERATORS TO INTENTIONALLY INFRINGE T H E R I G H T S OF LOUIS VUITTON? A AGAIN, CIRCUMSTANTIAL EVIDENCE WE HAVE.

D I R E C T E V I D E N C E, NO. Q DIRECTING YOUR ATTENTION TO PAGE 171 OF YOUR

DEPOSITION, A N D PARTICULARLY LINES 21 TO 24. DURING THAT DEPOSITION WAS THIS QUESTION ASKED A N D THIS ANSWER G I V E N: WHAT EVIDENCE DOES

LOUIS VUITTON HAVE THAT ANY O F THE DEFENDANTS INTENTIONALLY INDUCED O R C A U S E D THE THIRD PARTY W E B SITE OPERATORS TO INFRINGE A N Y R I G H T S OF LOUIS VUITTON? A Q I'M SORRY . WHAT PAGE WAS THAT ?

171 , L I N E S 2 1 T O 2 4. WAS THIS QUESTION ASKED AND THIS ANSWER 158

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"WHAT EVIDENCE DOES L O U I S VUITTON HAVE THAT

A N Y O F T H E DEFENDANTS INTENTIONALLY INDUCED OR C A U S E D T H E THIRD PARTY WEB SITE OPERATORS TO INFRINGE A N Y R I G H T S OF LOUIS VUITTON? " ANSWER : I D O N' T."

THE QUESTION THAT YOU 'RE A S K I N G M E T O D A Y I S

DOES IT REFER TO THE A C T U A L M O M E N T OR ARE Y O U PLACING YOURSELF IN THE TIME WHEN I W A S DEPOSED ? Q IS IT TRUE THAT AT T H E TIME THAT YOU WERE

DISPOSED Y O U SAID Y O U H A D NO EVIDENCE? A Q A Q AT THE TIME I W A S DEPOSED, NO. THANK YOU . YES , I T W A S TRUE. WHAT E V I D E N C E D O Y O U HAVE T O D A Y, IF ANY , THAT

IS DIFFERENT THAN T H E TESTIMONY AT YOUR DEPOSITION THAT THERE IS ANY INTENTIONAL INDUCEMENT BY THE DEFENDANTS TO CAUSE ANY W E B SITE OPERATOR TO INFRINGE ANY RIGHT O F LOUIS VUITTON ? A Q A I BELIEVE WE HAVE CIRCUMSTANTIAL EVIDENCE. WELL, WHAT I S THAT ? WE -- FROM T H E PATTERN O F CONDUCT OF T H E

DEFENDANTS WHICH HAVE BEEN TO SYSTEMATICALLY ALLOW A L L O F T H E S E D O Z E N S OF COUNTERFEIT WEB SITES TO PERSISTENTLY COME ON THEIR SERVICE, WE HAVE DEDUCTED THAT IN A CERTAIN , I N A CERTAIN WAY 159

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DEFENDANTS ARE ENCOURAGING THIS INFRINGING ACTIVITY . Q A Q ISN 'T THAT JUST SPECULATION ? NO. YOU HAVE NO EVIDENCE OF ANY D I R E C T CONNECTION

BETWEEN ANY OF T H E INFRINGEMENTS A N D T H E DEFENDANTS; I S N'T THAT TRUE? A Q BETWEEN WHAT ? I'M SORRY .

YOU HAVE NO DIRECT EVIDENCE OF A N Y CONNECTION

BETWEEN ANY INFRINGEMENTS AND T H E DEFENDANTS ; I S N' T THAT TRUE? A Q CAN Y O U D E F I N E "INFRINGEMENTS" ? WHAT Y O U SUED T H E S E DEFENDANTS F O R, THE D I R E C T

INFRINGEMENTS YOU 'RE S A Y I N G THAT THEY CONTRIBUTED TO , THAT INFRINGEMENT O F C O U N T E R F E I T - - O F TRADEMARK A N D COPYRIGHTS O F L O U I S VUITTON THAT YOU TESTIFIED T O T H E LAST T W O DAYS? A Q A Q NO. YOU HAVE NO EVIDENCE OF THAT; IS THAT R I G H T? YES . ISN 'T IT TRUE THAT Y O U HAVE NO EVIDENCE THAT

THE DEFENDANTS PROVIDED ANY WEB HOSTING SERVICES WITH THE O B J E C T O R I N T E N T OF PROMOTING I T S U S E TO INFRINGE LOUIS VUITTON' S TRADEMARKS OR T H E TRADEMARKS OF ANYONE ? 160

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Case5:07-cv-03952-JW Document270-8 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 A Q

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I D O NOT HAVE DIRECT EVIDENCE. ISN 'T IT TRUE THAT Y O U HAVE NO A C T U A L E V I D E N C E

THAT THE DEFENDANTS ENGAGED I N A N Y PURPOSEFUL CULPABLE EXPRESSION OR CONDUCT A S OPPOSED TO A N Y MERE KNOWLEDGE WITH REGARD TO A N Y MERE INFRINGEMENT BY ALLEGED WEB SITES USING I T S SERVERS ? A Q NO. ISN 'T IT TRUE THAT Y O U HAVE NO A C T U A L E V I D E N C E

THAT THE DEFENDANTS ACTUALLY CONTROLLED A N Y WEB SITES , SUCH AS OPERATING THEMSELVES OR CAUSING SOMEONE ELSE T O OPERATE THEM OR MANIFESTING ANY CONTROL OVER T H O S E W E B SITES? A Q A WE HAVE E V I D E N C E THAT THEY HAVE CONTROL . WHAT EVIDENCE D O YOU HAVE O F CONTROL ? WELL, WE HAVE TESTIMONY OF OUR E X P E R T. T H E COURT: L E T' S U S E THIS SUBJECT MATTER

C H A N G E CONTROL , I F Y O U' RE GOING TO PURSUE THAT, AS AN OPPORTUNITY TO TAKE A M I D- AFTERNOON BREAK . ABOUT 2: 30. IT' S

W E'L L COME BACK IN ABOUT TEN MINUTES. THANK Y O U.

M R. LOWE:

( WHEREUPON , A RECESS W A S TAKEN. ) T H E COURT: YOUR EXAMINATION. M R. LOWE: M A Y I T P L E A S E THE COURT . VERY WELL. Y O U MAY R E S U M E

MR. LIVADKIN , I N YOUR TESTIMONY EARLIER TODAY 161

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